What is the test for dismissing a Rule 41(e) motion?
MultiRegion, United States of America
The following excerpt is from U.S. v. Lavin, 99 F.3d 401 (2nd Cir. 1995):
2. Day. Day's 41(e) motion, however, should not have been dismissed. "Where criminal proceedings against the movant have already been completed, a district court should treat a rule 41(e) motion as a civil complaint." Onwubiko v. United States, 969 F.2d 1392, 1397 (2d Cir.1992); see also Mora v. United States, 955 F.2d 156, 158 (2d Cir.1992). Thus, the outright dismissal of Day's 41(e) motion was improper, and her motion should have been regarded as a complaint.
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