US v. That Certain Real Property
| Decision Date | 03 September 1992 |
| Docket Number | Civ. A. No. 91-AR-2035-S. |
| Citation | 798 F. Supp. 1540 |
| Parties | UNITED STATES of America, Plaintiff, v. THAT CERTAIN REAL PROPERTY LOCATED AT 632-636 NINTH AVENUE, CALERA, ALABAMA, Etc., Defendant. In re Henry FORD, Claimant. |
| Court | U.S. District Court — Northern District of Alabama |
COPYRIGHT MATERIAL OMITTED
Jack W. Selden, James D. Ingram, U.S. Attys. Office, Birmingham, Ala., for plaintiff.
Jesse P. Evans, III, Richard D. Greer, Najjar Denaburg P.C., Henry L. Penick, Hycall Brooks, III, Penick & Brooks, Birmingham, Ala., for defendants.
The above-entitled case began as a civil forfeiture action pursuant to 21 U.S.C. § 881(a)(7) (1988), brought by the United States, which filed a complaint containing a lawyer's verification "based on reports and information furnished me by the Shelby Regional Narcotics Task Force and the Drug Enforcement Administration". The complaint was accompanied by the affidavit of an investigator who swore that someone else, namely, an undercover agent, purchased cocaine from individuals located on the real property identified as 632-636 Ninth Avenue, Calera, Alabama, the alleged residence of one Albert Lee Oden. This affidavit also stated that there is both a yellow block house and a mobile home located on the said property. On August 29, 1991, based on the papers submitted, this court ordered the issuance of a warrant for the arrest of the said real property and for the publication of the notice required by Rule C(4) of the Supplemental Rules of Certain Admiralty and Maritime Claims.
There was neither a pre-seizure notice given to any occupant nor any pre-seizure hearing conducted. Instead, on August 30, 1991, the court ordered that all occupants of the real property be dispossessed forthwith unless they could show cause in writing within seven (7) days after service of the order upon some occupant why the order should not be granted. On September 4, 1991, the United States Marshal served on Thomas Gentry, Brenda Marsh, Monica Marsh and Henrietta Nelms at 632 Ninth Avenue, Calera, Alabama, copies of the complaint, the notice, the motion to vacate and the order to show cause. None of these persons was listed as a potential claimant to the property. Henry Ford was served with the same papers at another location on September 5, 1991. On September 17, 1991, this court entered an order granting the motion to vacate and ordered the United States Marshal to evict any and all occupants of the property, an order which apparently was unnecessary, the premises being found vacant.
In the original forfeiture complaint the United States had named as "possible claimants" Clarence Victor, Fannie Mae Oden Victor, Albert Lee Oden, and Henry Ford. On September 20, 1991, Ford filed what he styled an "answer" to the complaint. In response to an order to show cause why the said "answer" should not be stricken, Ford filed a motion for leave to file a belated claim, but this court, agreeing with the United States that Ford had failed to file a timely verified "claim" in compliance with Rule C(6) of the Supplemental Rules of Certain Admiralty and Maritime Claims, struck the "answer" and refused to allow Ford's belated claim. On November 27, 1991, after no further pleadings had been filed, the court set the matter for an evidentiary hearing on December 18, 1991, in order to give the United States its opportunity to prove by a preponderance of the evidence the actual existence of probable cause for believing that the property had been used for the dispensing of a controlled substance. The court therein requested the United States to state the extent to which it agreed with United States v. Two Parcels of Property Located at 185 and 191 Whalley Avenue, New Haven, Connecticut, 774 F.Supp. 87 (D.Conn.1991). On December 6, 1991, the United States filed a motion for summary judgment, whereupon the court entered its standard Rule 56 submission order and cancelled the December 18, 1991, evidentiary hearing.
Feeling somewhat foolish at having expressed in its Rule 56 submission order any expectation that it would receive a response from an inanimate parcel of real property to a motion for summary judgment, this court, on December 20, 1991, appointed counsel for the said real property in rem. On December 24, 1991, the said real property, by and through its counsel, filed a motion to amend or suspend the submission order. The said motion was granted by an order which extended the submission date to January 31, 1992.
The court now has for consideration the United States' motion for summary judgment which seeks a final order of forfeiture. The court also has before it a motion filed by the real property seeking to vacate the original order of seizure and arrest.
There is no doubt that this is a civil proceeding, ostensibly governed by the Federal Rules of Civil Procedure, which, of course, include Rule 56. This court, nevertheless, seriously doubts that Rule 56, which was adopted long before 21 U.S.C. § 881(a)(7), was designed for, or ever was expected to deal with, an in rem forfeiture proceeding in which the defendant is a pro se parcel of vacant real property.
The Eleventh Circuit explained the purpose and function of Rule 56 in Burns v. Gadsden State Community College, 908 F.2d 1512, 1516 (11th Cir.1990), as follows:
Recognizing the importance of giving the nonmovant a meaningful opportunity to respond to a motion for summary judgment, this circuit has strictly enforced the requirement of a 10 day advance notice that the court will take a motion for summary judgment under advisement as of a certain date. E.g., Griffith v. Wainwright, 772 F.2d 822, 825 (11th Cir.1985) (). The reasons for such a requirement Griffith, 772 F.2d at 825 n. 4 (citing Finn v. Gunter, 722 F.2d 711, 713 (11th Cir.1984)).
After learning from Burns, this court, and other federal courts, have redrafted their previously employed Rule 56 submission orders in order to assure the non-moving party a meaningful opportunity to challenge a Rule 56 motion. But giving an unoccupied yellow house and mobile home a meaningful opportunity to challenge a motion for summary judgment is not so easy. As they should, courts take especial care to look out for the rights of pro se litigants. This court sees no reason to make an exception to this general rule for a pro se parcel of real property, particularly when the rule of lenity in quasi-criminal matters, such as this, is applied and where the basic principles of "due process" are implicated. It is for this reason that this court appointed counsel for the property itself after the only individual putative claimant who apparently has legal title tried to assert a claim but may have failed to satisfy technical procedural requirements. Perhaps in an exercise of whatever discretion this court had, it should have allowed Ford to file his belated claim. Ford did subsequently file a separate purported action in this court against the United States, CV 92-AR-500-S, a case which has now been consolidated with this case in order to avoid duplication of judicial effort.
In a memorandum filed on December 23, 1991, the United States said, inter alia:
The government acknowledges that the holding in Whalley Avenue follows the legal precedence of the Second Circuit, as established in United States v. The Premises and Real Property at 4492 South Livonia Road, 889 F.2d 1258 (2d Cir.1989), amended and rehearing denied, 897 F.2d 659 (2d Cir.1990), and in United States v. 141st Street Corporation, 911 F.2d 870 (2d Cir.1990). The undersigned assistant United States attorney has learned from the assistant U.S. attorney who handled Whalley Avenue that this decision will not be appealed for that reason. However, it remains the position of the Department of Justice that the Second Circuit's analysis in Livonia Road is wrong, and whatever value the Whalley Avenue decision may have is limited solely to that circuit.
This court is not satisfied either that the controlling law is entirely clear or that the material facts in this case are without dispute. This court will be required to make findings of fact after a trial on the merits. Significantly, the United States filed no evidentiary response to the real property's evidence submitted in opposition to the Rule 56 motion. At a trial, the court will necessarily explore and determine not only "probable cause" but the validity of the initial seizure. The disputed questions of law must await or accompany the outcome of a resolution of the disputed questions of fact.
The court will entertain a motion by either side pursuant to Rule 39(b), F.R.Civ. P., if filed within ten (10) days, for a jury to decide the factual issues.
Pursuant to Rule 16(b), F.R.Civ.P., all discovery shall be completed within ninety (90) days from this date. The case is hereby SET for pre-trial conference on June 19, 1992, at 1:30 P.M., in accordance with the enclosed pre-trial instructions.
The motion of the United States for summary judgment is DENIED. The motion of the property will be ruled upon at trial.
On May 14, 1992, this court heard oral argument on a number of motions pending in the above-entitled proceeding. This opinion will endeavor not to repeat matters discussed in the opinion and order of March 26,...
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