US v. A Parcel of Land

• Decision Date: 07 August 1990
• Docket Number: Civ. A. No. 89-1411.
• Citation: 742 F. Supp. 189
• Parties: UNITED STATES of America, Plaintiff, v. A PARCEL OF LAND, BUILDINGS, APPURTENANCES, AND IMPROVEMENTS, KNOWN AS 92 BUENA VISTA AVE., RUMSON, NEW JERSEY, Defendant.
• Court: U.S. District Court — District of New Jersey

742 F. Supp. 189

UNITED STATES of America, Plaintiff, v. A PARCEL OF LAND, BUILDINGS, APPURTENANCES, AND IMPROVEMENTS, KNOWN AS 92 BUENA VISTA AVE., RUMSON, NEW JERSEY, Defendant.

Civ. A. No. 89-1411.

United States District Court, D. New Jersey.

July 13, 1990.

Order August 7, 1990.

Neil R. Gallagher, Asst. U.S. Atty., Newark, N.J., for plaintiff.

James A. Plaisted, Walder, Sondak, Berkeley & Bragan, Roseland, N.J., for claimant.

OPINION ON REQUEST FOR CERTIFICATION TO APPEAL

HAROLD A. ACKERMAN, District Judge.

The United States of America has brought this civil forfeiture action, pursuant to 21 U.S.C. § 881, concerning property known as 92 Buena Vista Avenue, Rumson, New Jersey, (hereinafter the "premises"). Presently before the Court is an application by the claimant, Ms. Beth Ann Goodwin, for certification of this Court's denial of her summary judgment motion and grant of a stay in favor of the government.

The claimant, Ms. Goodwin, previously moved to dismiss the complaint and for summary judgment. Her motion for dismissal of the complaint was based upon the grounds that (1) the seizure of her home was unconstitutional, because there was no probable cause and no preseizure hearing; (2) the property is not subject to forfeiture, because Ms. Goodwin is an "innocent owner"; (3) the verified complaint was based, at least in part, on immunized testimony; (4) the government unduly delayed in the seizure and/or is barred by the statute of limitations; and (5) the government's refusal to engage in discovery justified dismissal of this action. The government opposed the claimant's motion on all grounds and cross-moved for a stay on discovery and/or a stay of this action.

By an Opinion issued from the bench on May 29, 1990, and filed on or about June 1, 1990, 738 F.Supp. 854,¹ this Court held that the claimant's motion should be denied in all respects and that the government's request for a stay should be granted. The claimant has applied to this Court requesting that the Order denying her summary judgment motion contain a certification permitting her the right to an appeal, pursuant to 28 U.S.C. § 1292(b), subject to the Court of Appeals' discretion. With regard to interlocutory decisions by district courts, 28 U.S.C. § 1292(b) provides:

When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he sic shall so state in writing in such order. The Court of Appeals which would have jurisdiction of an appeal of such action may thereupon, in its discretion, permit an appeal to be taken from such order....

28 U.S.C. § 1292(b) (emphasis supplied).

The Third Circuit set forth the standards governing certification of interlocutory appeals under this provision in Katz v. Carte Blanche Corp., 496 F.2d 747, 754 (3d Cir.) (en banc), cert. denied, 419 U.S. 885, 95 S.Ct. 152, 42 L.Ed.2d 125 (1974). According to Katz, the certification of a matter for appeal is discretionary. Id. at 754. Each of the three criteria for certification — that the matter (1) involve a controlling question of law; (2) offer substantial ground for difference of opinion as to its correctness; and (3) materially advance the ultimate termination of the litigation — must be satisfied. Id. In addition, "a district court must keep in mind the Third Circuit's admonition that section 1292(b) `is to be used only in exceptional cases where an intermediate appeal may avoid protracted and expensive litigation.'" Mattioni, Mattioni & Mattioni, Ltd., v. Ecological Shipping Corp., 530 F.Supp. 910, 917 (E.D. Pa.1981).

The first criteria is clearly satisfied here. All of the significant issues involved in this case have been resolved as a matter of law. The issues are also controlling and some involve constitutional questions. See Johnson v. Alldredge, 488 F.2d 820, 822-23 (3d Cir.), cert. denied, 419 U.S. 882, 95 S.Ct. 148, 42 L.Ed.2d 122 (1974) (questions on immunity, which are purely legal in nature, are appropriate for resolution by way of an interlocutory appeal); Mattioni, supra, at 917 (an issue is controlling where "if erroneous, it would be reversible error on final appeal"); cf. Von Bulow by Auersperg v. Von Bulow, 634 F.Supp. 1284, 1312-13 (S.D.N.Y.1986), aff'd, 811 F.2d 136 (2d Cir.), cert. denied, 481 U.S. 1015, 107 S.Ct. 1891, 95 L.Ed.2d 498 (1987) (certification is not appropriate with respect to a ruling which does not involve a question of law but an exercise of discretion).

In addition, while I do not for a moment doubt the correctness of the decision I rendered, I recognize that substantial grounds may exist for a difference of opinion. There are few cases discussing the constitutionality of the civil forfeiture of a residence in the absence of a pre-seizure hearing and the courts have taken differing approaches in resolving this issue. Compare United States v. Property at 4492 S. Livonia Road, Livonia, New York, 889 F.2d 1258, 1265 (2d Cir.1989), reh'g denied, 897 F.2d 659 (2d Cir.1990), with United States v. A Single Family Residence and Real Property Located at 900 Rio Vista Blvd., Ft. Lauderdale, Fl., 803 F.2d 625, 632 (11th Cir.1986). A pronouncement by the Third Circuit as to the appropriate approach to take in resolving the constitutional questions implicated in such cases would certainly provide instructive precedent.

In addition, there is, apparently, no authority construing the innocent owner defense in a situation such as the present case, namely, where probable cause exists to believe that the property subject to civil forfeiture was purchased with drug proceeds and the claimant did not pay fair value. While there are a number of authorities supporting this Court's conclusion that the innocent owner defense does not apply in such a case, (see United States v. One Single Family Residence, Miami, 683 F.Supp. 783, 788 (S.D.Fla.1988) and 738 F.Supp. at 859-61), there are authorities which could, arguably, support a contrary conclusion. See, e.g., United States v. Four Million, Two Hundred Fifty-Five Thous., 762 F.2d 895, 905-06 (11th Cir. 1985), cert. denied, 474 U.S. 1056, 106 S.Ct. 795, 88 L.Ed.2d 772 (1986) (indicating that the purpose of the innocent owner defense is to ameliorate the harshness of the rule that all proceeds from drug transactions are subject to forfeiture by requiring knowledge of the drug dealings). Further, with respect to the government's alleged undue delay in the seizure, I recognize that substantial grounds for difference of opinion may exist on this issue as well. Compare 738 F.Supp. at 861-62, with United States v. Kemp, 690 F.2d 397, 401 & n. 5 (4th Cir.1982). Thus, the second criteria for grant of certification is satisfied.²

Lastly, the third criteria is satisfied. Resolution of any one of a number of issues raised by the claimant in her favor could result in an immediate dismissal of this action.³ On the other hand, this case has been stayed pending the...