United States of America v. Two Thousand Three ($2,003.00) Dollars in United States Currency et al
MEMORANDUM OPINION AND ORDER that Wingard's 15 Motion to Set Aside Default is DENIED as further set out in the opinion and order. Signed by Honorable Judge Mark E. Fuller on 1/14/2014. (Attachments: # 1 Civil Appeals Checklist)(dmn, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
UNITED STATES OF AMERICA,
TWO THOUSAND THREE DOLLARS
($2,003.00) IN UNITED STATES
CURRENCY, et al.,
CASE NO. 2:13-cv-491-MEF
(WO – Do Not Publish)
MEMORANDUM OPINION AND ORDER
This cause is before the Court on Defendant Willie Wingard’s (“Wingard”) Motion
to Set Aside Default (Doc. #15) filed on October 4, 2013. Jurisdiction over this matter exists
pursuant to 28 U.S.C. §§ 1345, 1335(a), and in rem jurisdiction and venue are appropriate
and undisputed. After careful consideration of the arguments of counsel, the case law, and
the record as a whole, the Court finds that the motion is due to be DENIED.
I. BACKGROUND AND PROCEDURAL HISTORY
This is a forfeiture action arising out of Wingard’s alleged use of the subject
properties to facilitate the commission of a crime in violation of 21 U.S.C. § 841 et seq.,
which makes property potentially forfeitable under 21 U.S.C. § 881(a)(4) and (6). The
properties are presently in the custody of the United States Marshals Service in the Middle
District of Alabama.
On July 12, 2013, the United States filed a Verified Complaint for Forfeiture In Rem
(Doc. #1) alleging that the subject properties, which are named as defendants in this action,
are subject to forfeiture pursuant to 21 U.S.C. § 881(a)(4) and (a)(6). On August 21, 2013,
Wingard was personally served with copies of the Verified Complaint for Forfeiture In Rem,
Notice of Complaint for Forfeiture against Personal Property, and Warrant of Arrest In Rem
(Doc. #5) at 1425 Withers Street, Montgomery, Alabama 36104. At the time the United
States served these documents, no attorney had filed a notice of appearance on behalf of
Wingard. The United States also served, “as a courtesy,” a copy of the documents on
Attorney Susan James (“Attorney James”) because her name was listed on various
administrative filings. (Doc. #4.) Attorney James’s paralegal accepted service of these
documents on August 21, 2013, at 9:54 a.m. The United States also published notice of the
civil forfeiture action at www.forfeiture.gov, an official government website, for a period of
30 consecutive days, beginning on July 18, 2013, and ending August 16, 2013. (Doc. #10.)
The published notice made clear that, pursuant to Rule G(5)(a)(ii) of the Supplemental
Rules for Admiralty and Maritime Claims and Asset Forfeiture Actions, “in order to avoid
forfeiture of the Defendant property, any person who asserts an interest in the Defendant
property must file a verified claim within 35 days after the date of this notice or the date of
delivery, if personally served.” (Doc. #1-1.) By the Court’s calculation, the deadline to
timely file a verified claim would have been September 25, 2013, but neither Wingard nor
Attorney James filed a claim by this date.
Two days later, on September 27, 2013, the United States filed an Application and
Request to Enter Default. (Doc. #11.) The Clerk entered default on September 30, 2013.
(Doc. #12.) On October 1, 2013, the United States filed a Motion for Decree of Forfeiture
(Doc. #13), which the Court granted on October 3, 2013 (Doc. #14).
The next day, on October 4, 2013, Attorney James entered an appearance in this case
by filing a Motion to Set Aside Default. (Doc. #15).1 In her Motion, Attorney James stated
that she received a copy of the entry of default on October 2, 2013, but she did not have
actual knowledge of having received a copy of the Complaint, Notice of Complaint, and
Warrant of Arrest in August. She did, however, state that she remembered receiving a call
from a Deputy U.S. Marshal regarding the service of the documents and does not deny the
possibility that the documents could have been left with someone at her office. Attorney
James urges this Court to set aside the default and argues that “[t]he failure to answer was
not willful, the party to whom the assets belong has a meritorious defense, and that there will
be no prejudice to the United States nor will the setting aside of the judgment produce harsh
or unfair results if the default is set aside.” Attorney James also explained that her office had
been involved in a number of matters in the states of Alabama and Georgia during the time
period after the documents were delivered such that the lack of response to the initial filing
was due to her own “excusable neglect,” and not at all to the neglect of Wingard.
The Court entered an order directing the United States to show cause why Wingard’s
According to the United States, Attorney James did not notify the government that she would be
representing Wingard in this civil forfeiture action, nor did she file a formal notice of appearance on the
Motion to Set Aside Default should not be granted. (Doc. #17). The United States timely
filed its response on October 30, 2013. (Doc. #18.) In its response, the United States
contends that the motion is due to be denied because Wingard does not have statutory
standing to challenge the Decree of Forfeiture and because Wingard has not met the burden
of establishing that there was good reason for failing to defend the complaint, that granting
the motion would not prejudice the United States, and that there is a meritorious defense that
would affect the outcome of this case.
Wingard requests that the entry of default in this case be set aside for good cause
pursuant to Rule 55(c) of the Federal Rules of Civil Procedure. While this is the proper
standard for setting aside a clerk’s entry of default, the Rules direct the Court to treat a
motion to set aside a default judgment as a Rule 60(b) motion.2 Fed. R. Civ. P. 55(c); see
also Gulf Coast Fans, Inc. v. Midwest Electronics Importers, Inc., 740 F.2d 1499, 1507 (11th
The government claims that Wingard does not have standing to contest the default since
he did not file a Verified Claim or Answer with his motion to set aside default. Specifically, the
government contends that Wingard’s failure to file a Verified Claim and Answer in response to the
government’s complaint, in violation of Article III of the United States Constitution, 18 U.S.C.
983(a)(4), and Rule G of the Supplemental Rules for Admiralty or Maritime Claims and Asset
Forfeiture (“Supplemental Rules”) requires the Court to deny the Motion to Set Aside Default for
lack of standing. While Wingard’s failure to properly respond to the government’s complaint may
have a bearing on whether he could succeed in challenging the forfeiture proceeding should he be
given a chance to answer, and therefore whether he could meet his burden of establishing a
meritorious defense under Rule 60(b)(1), it is not a pre-requisite for filing the motion to set aside
default. See U.S. v. $14,000.000, 2010 WL 4642990, *2 (S.D. Ohio Nov. 9, 2010) (applying the
legal principles for setting aside a default to determine whether the potential claimant should be
permitted to file an answer where the claimant had not filed an answer or claim within the time
period established by the applicable rules).
Cir. 1984) (“Rule 55(c) makes it clear that the proper, and in our opinion, exclusive, method
for attacking a default judgment in the district court is by way of a Rule 60(b) motion.”). The
importance of distinguishing between an entry of default and a default judgment lies in the
standard to be applied. In setting aside a default judgment, the courts apply an “excusable
neglect” standard, which is more rigorous than the “good cause” standard that is utilized in
setting aside an entry of default. See Jones v. Harrell, 858 F.2d 667, 669 (11th Cir. 1988);
United States v. One Parcel of Real Property, 763 F.2d 181, 183 (5th Cir. 1985). Because
the motion to set aside default was not filed until after a Decree of Forfeiture had been
entered, and because Attorney James contends that the lack of response to the Verified
Complaint is due to her “excusable neglect,” the Court will treat the Motion to Set Aside
Default as a Rule 60(b)(1) motion.3
Under Rule 60(b)(1), “the court may relieve a party . . . from a final judgment, order,
or proceeding . . .” because of “mistake, inadvertence, surprise, or excusable neglect.” Fed.
R. Civ. P. 60(b)(1). To establish mistake, inadvertence, or excusable neglect, “a defaulting
party must show that: (1) it had a meritorious defense that might have affected the outcome;
(2) granting the motion would not result in prejudice to the non-defaulting party; and (3) a
good reason existed for failing to reply to the complaint.” See Branch Banking and Trust v.
Maxwell, 512 Fed. App’x 1010, 2013 WL 1136579 (11th Cir. 2013); In Worldwide Web
Systems, Inc. v. Feltman, 328 F.3d 1291, 1295 (11th Cir. 2003). However, under Rule 60(b),
Wingard does not argue any of the reasons for setting aside a default judgment in Rule
60(b)(2)-(5) are applicable in this case.
“[t]he desirability for order and predictability in the judicial process speaks for caution in the
reopening of judgments.” See Griffin v. Swim–Tech Corp., 722 F.2d 677, 679–80 (11th Cir.
To satisfy its burden under the first prong of Rule 60(b)(1), the defaulting party “must
make an affirmative showing of a defense that is likely to be successful.” Solaroll Shade and
Shutter Corp., Inc. v. Bio-Energy Systems, Inc., 803 F.2d 1130, 1133 (11th Cir. 1986)
(citations omitted). Surveying the record as a whole, the Court finds nothing other than a
bald assertion in Wingard’s Motion to Set Aside Default that “the party to whom these assets
belong has a meritorious defense.” Wingard has made not attempt to assert a colorable
ownership or possessory interest in the Defendant property, which is a Constitutional
prerequisite to contesting forfeiture. See U.S. v. $38,000.00 in U.S. Currency, 815 F.2d
1538, 1543–44 (11th Cir. 1987) (“It is well established that in order to contest forfeiture, a
claimant must first demonstrate sufficient interest in the property to give him Article III
standing; otherwise there is no ‘case or controversy,’ in the constitutional sense, capable of
adjudication in the federal courts.”). Moreover, Wingard has made no attempt to explain the
nature of his defense or to address the likelihood that his defense would affect the outcome
of this case. The Eleventh Circuit has made clear that Wingard cannot satisfy the burden of
showing a meritorious defense by simply “asserting a general denial.” See id. at 1133.
Accordingly, the Court finds that by not “offer[ing] anything to affirmatively and specifically
show that there was a valid defense that would probably change the outcome of the case,”
Wingard has “not offered anything resembling a meritorious defense.” See Worldwide Web
Systems, Inc. v. Feltman, 328 F.3d 1291, 1296–97 (11th Cir. 2003). Failure to establish the
first prong is sufficient grounds to bar relief under 60(b)(1), and the Court therefore will not
reach the issue of whether Wingard met his burden under the second and third prongs.
Finally, the Rule 60(b)(6) “catchall” provision allows the Court to set aside default
for “any other reason that justifies relief.” Fed. R. Civ. P. 60(b)(6). “[R]elief under this
clause is an extraordinary remedy which may be invoked only upon a showing of
exceptional circumstances.” Cavaliere v. Allstate Ins. Co., 996 F.2d 1111, 1115 (11th Cir.
1993) (quotations omitted). Rule 60(b)(1) and (b)(6) are mutually exclusive, meaning that
a court cannot grant relief under (b)(6) for any reason that the court could consider under
See Solaroll 803 F.2d at 1133 (citations omitted). Because Wingard has not
provided any separate reasons why the Court should set aside default other than those put
forth in support of the Rule 60(b)(1) “excusable neglect” argument, Wingard’s Motion to Set
Aside Default fails to the extent it rests on Rule 60(b)(6).
Accordingly, for the foregoing reasons, it is hereby ORDERED that Wingard’s
Motion to Set Aside Default (Doc. #15) is DENIED.
DONE this the 14th day of January, 2014.
/s/ Mark E. Fuller
UNITED STATES DISTRICT JUDGE
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