651 F.Supp. 351 (S.D.Fla. 1987), 86-8470, United States v. One (1) 1979 Mercedes 450SE Vehicle ID No. 116032-12-081839 License No. MKS 706

Docket Nº:86-8470-CIV-Paine.
Citation:651 F.Supp. 351
Party Name:UNITED STATES of America, Plaintiff, v. ONE (1) 1979 MERCEDES 450SE VEHICLE ID NO. 116032-12-081839 LICENSE NO. MKS 706, Defendant.
Case Date:January 12, 1987
Court:United States District Courts, 11th Circuit, Southern District of Florida
 
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Page 351

651 F.Supp. 351 (S.D.Fla. 1987)

UNITED STATES of America, Plaintiff,

v.

ONE (1) 1979 MERCEDES 450SE VEHICLE ID NO. 116032-12-081839 LICENSE NO. MKS 706, Defendant.

No. 86-8470-CIV-Paine.

United States District Court, S.D. Florida.

Jan. 12, 1987

Page 352

Lynn D. Rosenthal, Asst. U.S. Atty., Miami, Fla., for U.S.

Glenn H. Mitchell, West Palm Beach, Fla., for claimant.

ORDER ON MOTION TO STRIKE OR DISMISS, MOTION FOR PROTECTIVE ORDER, OBJECTIONS TO DISCOVERY, MOTION FOR EXTENSION OF TIME, REQUEST FOR WRIT, AND MOTION TO DISMISS

PAINE, District Judge.

This cause comes before the court on plaintiff's motion to strike or dismiss answer (DE 8) and motion to dismiss (DE 16), and claimant's motion for protective order, objections to discovery, motion for extension of time, and request for writ (DE 13).

I. BACKGROUND

The United States instituted this action on August 14, 1986 bye filing a complaint for forfeiture in rem against the defendant automobile, alleging that it was subject to forfeiture when it was used or attempted to be used to facilitate the transportation of cocaine in violation of 49 U.S.C. § 781 (1982) (DE 1). The complaint stated that the car had been seized by agents of the Drug Enforcement Administration (DEA) on September 25, 1984, nearly two years before this civil action was commenced. The Clerk issued a warrant of arrest in rem (DE 3) in accordance with the Supplemental Rules for Certain Admiralty and Maritime Claims. Return of service on the defendant vehicle was executed by an officer of the DEA, the possessor of the vehicle (DE 4), pursuant to the arrest warrant. The pleadings indicate that a copy of the complaint was mailed to claimant's attorney (DE 11).

On September 8, 1986, an "answer" to the complaint was filed by attorney Glenn H. Mitchell on behalf of J.C. Ainor, Inc. d/b/a Superior Auto Sales and/or Joseph Ainor (DE 5). The unverified answer stated that the respondents own or have an interest in the defendant vehicle and also set forth the defenses of laches and lack of probable cause. On September 30, Mitchell filed an "amended answer" which was the same as the answer but contained a certification by Mitchell that the amended answer was based on information furnished to him by Ainor and that everything in it was true and correct to the best of his knowledge and belief (DE 6). The certification also stated that Ainor is the officer of J.C. Ainor, Inc. and that Ainor was unavailable because he was incarcerated in federal prison and may have been en route to testify at a codefendant's trial. The certification also stated that Ainor had authorized Mitchell to file an answer in this cause.

II. MOTION TO STRIKE OR DISMISS CLAIM

The Supplemental Rules require that, in cases such as this,

The claimant of property that is the subject of an action in rem shall file his claim within 10 days after process has been executed, or within such additional time as may be allowed by the court, and shall serve his answer within 20 days after the filing of the claim. The claim shall be verified on oath or solemn affirmation, and shall state the interest in the property by virtue of which the claimant

Page 353

demands its restitution and the right to defend the action. If the claim is made on behalf of the person entitled to possession by an agent, bailee, or attorney, it shall state that he is duly authorized to make the claim....

Fed.R.Civ.P. C(6). Additionally, the Local Rules for the Southern District of Florida provide that:

Every complaint and claim in Supplemental Rules B, C and D actions shall be verified on oath or solemn...

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