United States v. Properties Described in Complaints, Civ. A. No. C84-448A

• Decision Date: 09 November 1984
• Docket Number: C84-449A to C84-462A,Civ. A. No. C84-448A,C84-464A to C84-469A,C85-529A,C84-528A,C84-1226A and C84-1047A to C84-1049A.
• Parties: UNITED STATES of America, Plaintiff, v. PROPERTIES DESCRIBED IN COMPLAINTS: 764 ROCHELLE DRIVE, 1546 Alda Lane, 148 Atlanta Avenue, 1952 Willa Way, 2929 Landrum Drive, S.W., 4370 Valley Brook Drive, 1542 Pineview Terrace, S.W., 2244 Brannon Road, 2306 N. Eiffel Court, 2264 Collier Drive, 3299 Rabun Drive, 2424 Dawn Drive, 3357 Columbia Trace, 1194 Greenleaf Road, 1382 Oak Street, 948 Byron Drive, 3171 Topaz Lane, 2240 Squire Court, 2820 Valley Ridge Drive, 5864 Deerfield Trail, 2225 Swallow Circle, Business and Properties of Mid-town, et al., 1061, 1097, 1081, 1088, 1073, 1089 Neal Place, 2971 Landrum Drive, One 1979 Cadillac Eldorado, One 1983 Mazda, One 1979 Mercedes Benz, Defendants.
• Court: U.S. District Court — Northern District of Georgia

612 F. Supp. 465

UNITED STATES of America, Plaintiff, v. PROPERTIES DESCRIBED IN COMPLAINTS: 764 ROCHELLE DRIVE, 1546 Alda Lane, 148 Atlanta Avenue, 1952 Willa Way, 2929 Landrum Drive, S.W., 4370 Valley Brook Drive, 1542 Pineview Terrace, S.W., 2244 Brannon Road, 2306 N. Eiffel Court, 2264 Collier Drive, 3299 Rabun Drive, 2424 Dawn Drive, 3357 Columbia Trace, 1194 Greenleaf Road, 1382 Oak Street, 948 Byron Drive, 3171 Topaz Lane, 2240 Squire Court, 2820 Valley Ridge Drive, 5864 Deerfield Trail, 2225 Swallow Circle, Business and Properties of Mid-town, et al., 1061, 1097, 1081, 1088, 1073, 1089 Neal Place, 2971 Landrum Drive, One 1979 Cadillac Eldorado, One 1983 Mazda, One 1979 Mercedes Benz, Defendants.

Civ. A. Nos. C84-448A, C84-449A to C84-462A, C84-464A to C84-469A, C84-528A, C85-529A, C84-1226A and C84-1047A to C84-1049A.

United States District Court, N.D. Georgia, Atlanta Division.

November 9, 1984.

Barbara V. Tinsley, Asst. U.S. Atty., Atlanta, Ga., for plaintiff.

ORDER

ROBERT H. HALL, District Judge.

The above-styled actions are forfeiture proceedings brought by the United States pursuant to 21 U.S.C. § 881(a)(6) alleging that the defendant properties constitute proceeds traceable to an exchange for a controlled substance. On October 1, 1984, following a hearing held September 28, 1984, this court entered an Order granting the government's motion to strike the answers filed in these actions by claimants Rowland Lamar Allen, Mid-Town Contractors, Inc., Property Pick-Up, Inc., Brenda Allen Rabun, Brass Key Apartments, Beulah Ann Powell, Beulah Williams, Harry Williams, and Joyce Allen. The court found that the above-named claimants had failed to establish their right to defend these actions by the timely filing of verified claims as required by Rule C(6) of the Supplemental Rules for Certain Admiralty and Maritime Claims. In the same Order, the court denied the motion filed by claimants Rowland Lamar Allen, Mid-Town Contractors, Inc., and Property Pick-Up, Inc., to amend their claims and answers, describing the motion to amend as "an attempt by the three movants to file a claim four months beyond the requisite filing period without offering adequate justification for excusing the failure to meet the filing deadline or for excusing the failure to file for an extension of time prior to the expiration of that deadline." (Order of October 1, 1984, pp. 2-3).

Presently pending is Rowland Lamar Allen, Mid-Town Contractors, Inc. and Property Pick-Up, Inc.'s motion for reconsideration of the October 1, 1984 Order. Movants submit that: (1) the pleadings filed by them within the requisite time period constituted "claims" within the meaning of Rule C(6) of the Supplemental Rules for Certain Admiralty and Maritime Claims ("Rule C(6)") such that they have standing to contest the forfeiture proceedings and such that they should be allowed to amend their claims to state more precisely their ownership interest in the seized property and to supply verification for their claims; or, alternatively, (2) even if the original pleadings did not constitute "claims" as contemplated by Rule C(6), this court should exercise its discretion and extend the time within which movants' claims may be filed. Movants request that the October 1, 1984 Order be vacated, that the government's motion to strike be denied, and that either the claimants' motion to amend their "claims and answers" be granted or claimants be given a 10-day extension of time within which to file claims.

Because movants have submitted more extensive argument, the court GRANTS claimants' motion for reconsideration; however, upon reconsideration, the court declines to vacate its October 1, 1984 ruling. The court offers the following discussion, addressing each argument seriatim:

A. Existence of a timely claim

Movants again assert that the pleadings styled "Claim and Answer" filed March 23, 1984, are sufficient to constitute "claims" within the meaning of Rule C(6). Movants contend that a conclusory prayer contained in their answer seeking return of the property¹ is sufficient to satisfy the basic requirements of a Rule C(6) claim. This argument is without merit and the court continues to find the pleadings to be "substantively answers only." (Order of October 1, 1984, p. 2.)

First, the argument ignores the plain wording of Rule C(6) which provides in pertinent part:

The claim shall be verified on oath or solemn affirmation, and shall state the interest in the property be virtue of which the claimant demands its restitution and the right to defend the action.

Fed.R.Civ.P. Supplemental Rule C(6) (Emphasis supplied). The filing of a statement of a specified interest is expressly required to give a claimant standing to demand restitution of property. Thus, movants' argument that a prayer for the property's return asserts a claim is a bootstrapping attempt. The entire purpose of the claim is to establish the requisite standing to enable the claimant to pray for its return. It is convoluted logic to argue that the prayer for return can constitute the claim when the purpose of the claim is to establish a right to seek the property's return.

The present case is somewhat similar to the United States v. Fourteen (14) Handguns, 524 F.Supp. 395, 397 (S.D.Tex.1981), case. In that case, the court found that a "Petition for Return of Property" was not a claim as contemplated by Rule C(6) because, among other things, it did not contain a verified statement of claimant's interest in the subject property. Id. at 397. The court then struck the claimant's answer for failure to file a timely claim. In this case movants similarly rely on a blanket prayer for return of the property filed by their attorneys to support their position that a claim was in fact timely filed. This court, like the Fourteen (14) Handguns court, must find that such a demand cannot be considered a Rule C(6) claim.

Statements by movants' original counsel at the September 28 hearing conclusively establish that no claim was asserted within the 10 day period. Counsel admitted that they filed answers, "calling each a claim and answer," because they believed the claimant was known. (T. 5).² They then urged the court to allow the "amendment" which "states what the interests of the parties are and the verification." (T. 6). Thus, counsel's own statements establish that the purported "amendment" is actually an original claim and the original pleading was only an answer.

Because no adequate claims were filed within the prescribed 10-day period, see Fed.R.Civ.P. Supplemental Rule C(6), movants' "motion to amend" is meritless; there can be no amendment of a claim which does not exist.³ And, because the filing of a claim is a prerequisite to the right to file an answer and defend on the merits, the answers in the present case must be stricken from the record because no claim preceded their filing. Fourteen (14) Handguns, 524 F.Supp. at 397.

B. Extension of time

Movants next argue that they should be permitted to file out-of-time claims pursuant to the court's authority under Rule 6(b) of the Federal Rules of Civil Procedure to permit an out-of-time filing "for good cause shown." The court fails to find an extension of time warranted by the facts of this case and continues to find that claimants have not "offered adequate justification for excusing the failure to meet the filing deadline or for excusing the failure to file for an extension of time prior to the expiration of that deadline." (Order of October 1, 1984, p. 3).

Claimants rely primarily on two district court decisions wherein the court allowed out-of-time claims. However, both of these cases are not only distinguishable from the present case, but the reasoning of the courts in those cases argues against movants' petition under the facts of this case.

In United States v. One 1979 Oldsmobile Cutlass Supreme, 589 F.Supp. 477

(N.D.Ga.1984) (Forrester, J.), the court allowed the claimant to perfect the filing of her claim with the court based on the court's determination that a prior claim had been filed with the United States Customs Service pursuant to a letter she had received instructing her to return a completed claim to that office. Moreover, because the property was valued at less than $10,000.00, the court's jurisdiction over the proceeding was not even existent until a claim and cost bond was filed with the seizing agency. See 19 U.S.C. § 1608. Accordingly, based on the particular facts of that case, the court found that the claimant had made a "good faith effort" to file her claim to the defendant property and had in fact filed a claim, albeit with the wrong office because she relied on a letter from the seizing government agency.

Similarly, the court in United States v. One 1979 Peterbilt Tractor, No. L-82-45 (S.D.Tex. Mar. 23, 1983), found a good faith compliance with the claim filing requirement where the claimant had filed a Petition for Remission with the Drug Enforcement Administration after several communications with the agency seeking directions for perfecting his claim.

The two above cases fail to support movants' position under the facts before this court. None of the movants asserts that he filed a proper claim (or any claim) with the seizing agency or that he relied to his detriment upon guidance from a governmental agency. Therefore, the factual bases for the courts' finding of a good faith effort to assert claims in both One Oldsmobile and One Peterbilt Tractor are nonexistent in the present action. Rather, in the pending actions, counsel admitted that they had not filed proper claims through "inadvertence, ignorance, or whatever." (T. 8). Thus, not only do the facts not support a judicial finding of good faith, they actually mandate against such a finding.

Movants further contend that the court should permit, within its discretion, the filing of late claims in this action through application of the standards governing the...