United States v. Various Parcels of Real Property

• Decision Date: 11 December 1986
• Docket Number: Civ. No. 85-981.
• Parties: UNITED STATES of America, Plaintiff, v. VARIOUS PARCELS OF REAL PROPERTY and 4724 Pennsylvania, Gary, Indiana, et al, Defendants.
• Court: U.S. District Court — Northern District of Indiana

650 F. Supp. 62

UNITED STATES of America, Plaintiff, v. VARIOUS PARCELS OF REAL PROPERTY and 4724 Pennsylvania, Gary, Indiana, et al, Defendants.

Civ. No. 85-981.

United States District Court, N.D. Indiana, Hammond Division.

December 11, 1986.

James G. Richmond, Gwen Rinkenberger, Asst. U.S. Atty., for plaintiff.

J.J. Stankiewicz, Merrillville, Ind., for defendants.

ORDER

MOODY, District Judge.

This cause is before the court on a Motion for Summary Judgment filed on September 25, 1986 by the United States of America (government) pursuant to Fed.R. Civ.P. 56. The action was commenced by the government on October 23, 1985 pursuant to 21 U.S.C. § 881 seeking forfeiture of several parcels of real property believed to be involved with narcotics violations. By its motion the government seeks summary judgment with respect to the parcel of real estate known as 4724 Pennsylvania, Gary, Indiana.

I.

The government filed its complaint for forfeiture on October 23, 1985, naming seven parcels of real estate as defendants. Execution of process was carried out by serving an individual at the address or by posting the complaint and alias warrant of seizure on the premises. On the Marshal's Process Receipt and Return form dated November 1, 1985, Rose Rodriguez is listed as the individual served at 4724 Pennsylvania, Gary, Indiana. Notice of the action was also published in the Gary Post-Tribune on November 8, 15 and 22, 1985.

On December 23, 1985, Rose Rodriguez filed an answer to the complaint, denying that her possessions seized at 4724 Pennsylvania were used for illegal purposes and generally denying all the allegations concerning the forfeiture of that parcel of real estate. Rose Rodriguez also filed on February 12, 1986 a Notice of Claim for Wrongful Seizure of Personal Property and a separate Motion to Intervene.¹ Both pleadings indicated that Rose Rodriguez was a lessee tenant at 4724 Pennsylvania and asserted claims to personal property seized at that address. After the court granted the Motion to Intervene, Rose Rodriguez filed on May 28, 1986 a second answer, reasserting in substance the same allegations made in the December 23, 1985 answer.

The government now seeks summary judgment because claimant Rodriguez did not comply with the requirements of Supplemental Rule C(6), Fed.R.Civ.P., in submitting her claim. To date the court has received no response to the government's motion.

II.

Summary judgment is appropriate only where the court is satisfied that the moving party has met its burden of establishing that there exists no genuine issue with respect to any material fact and that it is entitled to judgment as a matter of law. Thornton v. Evans, 692 F.2d 1064, 1074 (7th Cir.1982); Fed.R.Civ.P. 56. The court must view the evidence submitted by the movant in the light most favorable to the non-moving party. Egger v. Phillips, 710 F.2d 292, 296 (7th Cir.), cert. denied, 464 U.S. 918, 104 S.Ct. 284, 78 L.Ed.2d 262 (1983).

A.

Supplemental Rule C(6), Fed.R.Civ.P., states that "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." The claim must also be verified. Id. The government contends that because the claim submitted by Rose Rodriguez was not verified, she has no standing to challenge the forfeiture action. As discussed elsewhere in this order, the government's assessment of the submitted claim is inaccurate. Even taken as true, however, the government's allegations would not entitle it to summary judgment.

The verification of a claim is an important element of a forfeiture defense. United States v. United States Currency in the Amount of $2,857.00, 754 F.2d 208, 213 (7th Cir.1985). However, this court has previously expressed its reluctance to penalize a claimant not in technical compliance with the Supplemental Rules where the government has also failed to comply. See United States of America v. One 1980 Ford Mustang VIN 0F03D121959, 648 F.Supp. 1305 (N.D.Ind.1986). In the present case the published notice misstates the procedure to be followed in asserting a forfeiture defense. The notice states that claimants "are to file their claims within twenty (20) days after the last day of publication." However, Supplemental Rules C(4) and C(6) require the notice to state that claims shall be filed "within 10 days after process has been executed", and that an answer should be filed "within 20 days after the filing of the claim."²

Whether or not the government's error actually caused confusion for potential claimants, the court, in an effort to balance the equitable considerations of all the litigants, would normally be inclined to allow both parties to cure their respective deficiencies. Thus, even if Rose Rodriguez had submitted a legitimate yet defective claim to the subject real property, the government would not be entitled to summary judgment against her because of its own noncompliance with the Supplemental Rules.

However, because claimant Rodriguez has made no claim to the defendant real estate in this action, (see infra, section B of this order), the court does not need to decide whether she should be allowed to cure her pleadings.

B.

Contrary to the government's contention, no claimant has asserted a claim against the real estate known as 4724 Pennsylvania, Gary, Indiana. Rose Rodriguez' answers, dated December 23, 1985 and May 28, 1985, vaguely refer to "her property at 4724 Pennsylvania." However, the Motion to Intervene and the Notice of Claim, both dated February 12, 1986, make it clear that the answers refer to Rose Rodriguez' personal property that was seized at that address. She alleges that she was merely a lessee tenant of the house at 4724 Pennsylvania. Both of the February 12, 1986 pleadings specifically refer only to personal property and include lists of personal items which she claims.³ A review of the record shows that neither Rose Rodriguez nor any other claimant has asserted an interest in the subject real estate. Because no claim has been filed, the court evaluates the summary judgment motion, as to the defendant 4724 Pennsylvania, Gary, Indiana, solely on its merits.

C.

In a forfeiture action pursuant to 21 U.S.C. § 881, the government carries the initial burden of proving probable cause to believe that a substantial connection exists between the property to be forfeited and an illegal exchange of a controlled substance. United States v. A Single Family Residence and Real Property Located at 90 Rio Vista Blvd., Ft. Lauderdale, 803 F.2d 625 (11th Cir.1986). See Joint Explanatory Statement of Titles II and III, reprinted in 1978 U.S. Code Congressional and Administrative News, p. 9522. Probable cause is defined as "reasonable ground for belief of guilt, supported by less than prima facie proof but more than mere suspicion." United States v. Three Hundred Sixty Four Thousand Nine Hundred Sixty Dollars ($364,960.00) in United States Currency, 661 F.2d 319, 323 (5th Cir.1981). Once the government has shown probable cause, the burden shifts to the claimant to prove by a preponderance of the evidence that the property was not involved in a narcotics violation, that the property has an independent innocent source or that probable cause did not exist. United States v. $41,305.00 in Currency and Travelers Checks, 802 F.2d 1339 (11th Cir.1986); United States v. $5,644,540.00 in United States Currency, 799 F.2d 1357, 1362 (9th Cir.1986). On summary judgment an unrebutted showing of probable cause will suffice to support a forfeiture. Id.

Because there is no claimant to the subject property, the government on summary...