United States District Court, D. Minnesota
H. MACDONALD, UNITED STATES ATTORNEY, AND ANDREW TWEETEN,
ASSISTANT UNITED STATES ATTORNEYS, OFFICE OF THE UNITED
STATES ATTORNEY, 300 SOUTH FOURTH STREET, SUITE 600,
MINNEAPOLIS, MN 55415, FOR PLAINTIFF.
KENDRICK DOTSTRY, NO. 09196-041, FCI OXFORD, PO BOX 1000,
OXFORD, WI 53952, PRO SE DEFENDANT.
ORDER DENYING DEFENDANT'S MOTION FOR
R. TUNHEIM Chief Judge
Dotstry brings a motion pursuant to Federal Rule of Civil
Procedure 60(b) seeking relief from two of the Court's
prior orders. (Mot. for Relief, Mar. 18, 2019, Docket No.
63.) He argues that the Court made a legal error in applying
a statute of limitations to deny his previous motions and
that, even if the statute of limitations applied, he is
entitled to equitable tolling. Because the Court did not err
in applying the statute of limitations, and because Dotstry
is not entitled to equitable tolling, the Court will deny his
25, 2018, and July 2, 2018, Kendrick Dotstry brought two Rule
41(g) motions seeking the return of various sums of money,
including $36, 854.00 that the government took from him in
1998. (See Order (“1st
Order”), Sept. 10, 2018, Docket No. 57.) The Court
denied both motions and, relevant to the present Rule 59(e)
motion, held that Dotstry's claim for the return of $36,
854.00 was time-barred. (Id. at 5.) The Court
followed United States v. Mendez, 860 F.3d 1147
(8th Cir. 2017), in applying a six-year statute of
limitations to Dotstry's Rule 41(g) motion, and held that
his claim for the $36, 854.00 was time-barred because he was
or should have been aware of his claim as early as 2000 and
as late as 2008.
the Court denied his motions, Dotstry filed a Rule 59(e)
motion seeking to alter or amend the Court's decision.
(See Order (“2d Order”) at 1, Nov. 6,
2018, Docket No. 61.) In this motion, Dotstry argued that his
Rule 41(g) claim for the $36, 854.00 was not time-barred, and
that the Court erred in so holding. Dotstry asserted that he
was not and should not have been aware of his claim until
2017, and that the statute of limitations clock did not start
tolling until that year. The Court again denied Dotstry's
motion, reaffirming its decision that the statute of
limitations had run because Dotstry should have been aware of
his claim as early as 2000 and as late as 2008.
Dotstry brings a motion seeking relief from both of the
Court's prior orders. He styles this motion as one under
Rule 60(b), and argues that the Court erred in its prior
orders. Dotstry again disputes the Court's application of
the statute of limitations. However, instead of arguing about
whether the statute of limitations has run, he argues that
no statute of limitations applies and that
the Court erred in applying one. Alternatively, he argues
that he is entitled to equitable tolling, because the
government allegedly withheld the fact that it had taken the
60(b) provides that a district court “may relieve a
party . . . from a final judgment, order, or proceeding for .
. . mistake.” Fed.R.Civ.P. 60(b)(1). Dotstry alleges
that the Court made a mistake when it applied a six-year
statute of limitations.
are at least two procedural shortcomings with Dotstry's
motion, each of which justify its denial. First,
“‘relief under Rule 60(b)(1) for judicial error
other than for judicial inadvertence' is not
available.” Lowry v. McDonnell Douglas
Corp., 211 F.3d 457, 461 (8th Cir. 2000).
Dotstry is not alleging that the Court made an inadvertent
mistake, but rather that the Court misapplied the law.
However, “arguing that a court misunderstood or
misapplied the law is not grounds for relief under Rule
60(b)(1).” Nichols v. United States, No.
400CR00022-03-WRW, 2006 WL 3420303, at *2 (E.D. Ark. Nov. 28,
2006). Thus, Dotstry's 60(b)(1) motion is improper.
Dotstry's motion could somehow be construed as alleging
judicial inadvertence, his motion is untimely. “To
prevent its use as a substitute for appeal, ” the
Eighth Circuit requires that a “Rule 60(b) motion
alleging judicial inadvertence . . . be made within the time
period allowed for appeal.” Fox v. Brewer, 620
F.2d 177, 180 (8thCir. 1980); see also CRI,
Inc. v. Watson, 608 F.2d 1137, 1143 (8th Cir.
1979) (“When the alleged error could have been
corrected by appeal, the motion must be made within the time
period allowed for appeal.”). Dotstry had 60 days to
file an appeal of each of the Court's original orders but
failed to do so. Fed. R. App. P. 4(a)(1)(B). The Court's
first order was filed on September 10, 2018, and the second
on November 6, 2018. Dotstry filed this motion on March 18,
2019. Dotstry's motion is thus untimely, and the Court
will deny it on these grounds.
the Court excused both shortcomings, the Court would still
deny Dotstry's motion on the merits. Dotstry asserts
that, because Rule 41(g) does not contain a statute of
limitations, the Court errored in applying one. Dotstry is
incorrect. While it is true that 41(g) does not contain an
explicit statute of limitations, the Eighth Circuit-in
United States v. Mendez-adopted a six-year statute
of limitations based on 28 U.S.C. § 2401(a), joining
every other circuit to consider the issue. 860 F.3d at
1149-50. Dotstry recognizes Mendez but ...