United States of America v. $389,820.00 in United States Currency et al
MEMORANDUM OPINION AND ORDER DENYING Barton's 14 MOTION to Dismiss and the Government's 15 MOTION to Strike ; further ORDERING that Ruby Barton has until 7/14/2017 to file an answer. Signed by Honorable Judge W. Harold Albritton, III on 6/28/17. (djy, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
UNITED STATES OF AMERICA,
$389,820.00 IN UNITED STATES
CURRENCY, et al.,
CIVIL ACTION NO.: 2:16cv985-WHA
MEMORANDUM OPINION AND ORDER
This in rem action is before the court on a Motion to Dismiss filed by claimant, Ruby
Barton (“Barton”), as Executor of the Estate of Rodriguez Garth, (Doc. # 14) and a Motion to
Strike filed by the United States (the “Government”) (Doc. # 15).
In her Motion to Dismiss, Barton argues that this court lacks in rem jurisdiction over this
case because in rem jurisdiction first attached and remains in state court (Doc. # 14). In response,
the Government argues, even if in rem jurisdiction first attached in state court, it voluntarily
relinquished jurisdiction when it issued a turnover order of the property to this court (Docs. # 17,
18, & 20). Barton replies that a state court may not divest its in rem jurisdiction without a judgment
on the merits on that claim (Doc. # 23). Barton has filed a claim in this court, but contends that the
state court has jurisdiction.
In the Government’s Motion to Strike, the Government contends that Barton lacks standing
to assert a claim, because the deadline for filing her claim and Motion to Dismiss have passed
(Doc. # 15). The Government contends that this court has jurisdiction, not the state court. In
response, Barton concedes that her filings were untimely; however, she submits that if the court
has jurisdiction over this action, the court should exercise its discretion in extending the deadlines
for both filings (Doc. # 22).
For the reasons that follow, both Motions are due to be DENIED.
The Verified Complaint, claims, exhibits to pleadings, and briefs show the following facts:
On May 13, 2016, the Millbrook Police Department responded to a 911 telephone call
stating Rodriguez Lakeith Garth (“Garth”) had been shot. Police and medical personnel responded
to the call and located Garth at a local Sonic Drive-In restaurant. Officers observed multiple
gunshot sized holes through the driver’s side window of Garth’s Mercedes vehicle. Garth was
transported to Baptist South Hospital in Montgomery, Alabama for treatment. Afterwards, officers
seized Defendant $4,550.00 from the vehicle and Garth’s person (Doc. # 1).
An investigation later revealed that Garth had been shot at his residence in Millbrook,
Alabama and that he had driven himself to the Sonic Drive-In. This information led officers to
obtain a search warrant for Garth’s residence. Judge Glenn Goggans of the Elmore County District
Court, an Alabama state court, issued the search warrant on May 14, 2016, the day after the
shooting (Doc. # 17-1). The warrant authorized officers to search Garth’s residence for evidence
related to the shooting. Multiple officers, making up a joint task force of state and federal law
enforcement officers, were involved in the execution of the warrant, including Officer Talley of
the Elmore County Sheriff’s Office, members of the DEA Montgomery residence office, and
agents from the Central Alabama Drug Task Force.
Upon entry into Garth’s residence, officers noticed the presence of illegal narcotics and
assorted firearms. Judge Goggans then issued a second search warrant (Doc. # 17-3), which
allowed officers to search Garth’s residence and any vehicles on the property and to seize evidence
of illegal narcotics, in addition to evidence related to the shooting. During the search of the
residence, the garage, and the car in the garage, officers found and seized four “totes” containing
11 “bundles” of marijuana, eight “bundles” of marijuana in a closet, four gallon-size plastic bags
of cocaine, a digital scale, a Ruger LCP pistol, a Ruger P35 pistol, 6 cellular telephones, assorted
jewelry (of which at least some pieces are Defendants in this action), “AR” 15 magazines, assorted
documents, and several large quantities of U.S. currency, including Defendants $15,780.00 and
$389,820.00. Officers also seized three (3) vehicles from Garth’s residence, including the
Mercedes driven by Garth on the day of the shooting, the Defendant Chevrolet Chevelle, and a
Cadillac DTS (Docs. # 14-1, 17-5).
Garth died on June 16, 2016, about a month after the shooting. Plaintiff Barton
subsequently became Executor of Garth’s estate.
The Defendants were transferred to the DEA’s possession and administrative forfeiture
proceedings were commenced. On July 27, 2016, Barton, in her capacity as Executor, filed a claim
with the DEA asserting ownership of the Defendant currency. A little over two months later, on
September 29, 2016, Barton filed another claim with the DEA asserting ownership over the
Defendants Chevrolet Chevelle and Miscellaneous Jewelry. These claims with the DEA brought
about the end of the federal administrative proceedings in this case (Doc. # 17).
On December 20, 2016, the United States filed a Verified Complaint in this court, seeking
forfeiture of the Defendants in rem (Doc. # 1), Warrant of Arrest in Rem was issued on December
21 and returned as executed on December 28 (Doc. #3-7). Barton received notice of the
Government’s Complaint on December 30, 2016 (Doc. # 9).
On February 15, 2017, Barton filed a claim for the Defendant property in this court (Doc.
On March 17, 2017, Barton filed a suit in the state Circuit Court for the 19th Judicial
Circuit, Civil Action No. CV-17-900092, seeking return of the Defendant property on the basis
that no state forfeiture action had been timely filed by the state and, therefore, the estate of Garth
was entitled to the property pursuant to Code of Ala., 1975, § 20-2-93(c). (Doc. # 22-2).
On March 22, 2017, Barton filed the Motion to Dismiss for Lack of Jurisdiction now before
the court and on March 24, 2017, the Government filed its Motion to Strike.
On April 6, 2017, the District Attorney for the state 19th Judicial Circuit filed an Ex Parte
Motion for Turnover Order in the Elmore County District Court, reciting that no state forfeiture
action in rem was pending in state court and that it was in the best interest of justice that the
Defendant property in this case be turned over for federal forfeiture proceedings, which Judge
Goggans, the state court judge who had issued the search warrant, granted by ordering the turnover.
(Doc. # 17-6).
On April 11, 2017, Judge Goggans vacated his April 6th Order on the basis that Barton’s
state court suit was pending in the state circuit court, not his district court, at the time he entered
his order. (Doc. # 24-2).
Then, on May 2, 2017, the state District Attorney filed a Motion for Turnover Order in the
state court case before the Elmore County Circuit Court requesting that court to enter an order to
turnover the Defendant property for purposes of this federal forfeiture proceeding, thereby
relinquishing any jurisdiction that court might have over the property. (Doc. # 26-1).
On May 3, 2017, Circuit Judge Sibley G. Reynolds entered an Order to Turn Over Property,
granting the State’s motion. (Doc. # 26-2).
The basis for Barton’s Motion to Dismiss is that the state court had jurisdiction of the
property at the time she filed her suit in the state circuit court and continues to have jurisdiction
until that case is disposed of, to the exclusion of jurisdiction by this court. The Government denies
that contention and also, by its Motion to Strike the Verified Claim, contends that Barton filed her
claim after the deadline for doing so under Supplemental Rule G(5)(b).
The court held oral argument on June 7, 2017, where it heard arguments from the parties
regarding the merits of both Motions. The parties filed supplemental briefs on June 21, 2017
(Docs. # 35 & 36).
III. MOTION TO DISMISS STANDARD
A Rule 12(b)(1) motion challenges the district court’s subject matter jurisdiction and takes
one of two forms: a “facial attack” or a “factual attack.” A “facial attack” on the complaint requires
the court to assess whether the plaintiff has alleged a sufficient basis for subject matter jurisdiction.
See Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990). A “factual attack,” on the other
hand, challenges the existence of subject matter jurisdiction based on matters outside the pleadings.
See id. Under a factual attack, the court may hear conflicting evidence and decide the factual issues
that determine jurisdiction. See Colonial Pipeline Co. v. Collins, 921 F.2d 1237, 1243 (11th Cir.
1991). The burden of proof on a Rule 12(b)(1) motion is on the party averring jurisdiction. See
Thomson v. Gaskill, 315 U.S. 442, 446 (1942).
The case before the court primarily involves a question of whether in rem jurisdiction over
seized property is properly exercised in this court, or lies in the state court. The court will begin
with an examination of the basis for exercising jurisdiction over property seized by state officials,
and then will discuss how property can be, and was in this case, transferred by a state court,
allowing for in rem jurisdiction in federal district court.
A. Jurisdiction In Forfeiture Cases
1. Federal and State Authority
Forfeiture actions can be brought in both federal and state court. In federal court, subject
matter jurisdiction for federal civil forfeiture is conferred by 28 U.S.C. § 1355(a); the authority to
forfeit is provided by 21 U.S.C. § 881; and the rules of procedure for pursuing a civil forfeiture
are provided by 18 U.S.C. § 983. Additionally, Title 21 U.S.C. § 881 authorizes forfeiture of
illicit-drug-related property to the United States, including “[a]ll moneys . . . furnished or intended
to be furnished by any person in exchange for a controlled substance” and “all proceeds traceable
to such an exchange.” 21 U.S.C. § 881(a)(6).
In state court, under Alabama statutory law, Ala. Code § 20-2-93(b), property used in the
furtherance of the unlawful sale of controlled substances, “may be seized by state, county or
municipal law enforcement agencies upon process issued by any court having jurisdiction over the
property.” Moreover, such process may be issued in the form of a search warrant issued pursuant
to Ala. Code § 15-5-14.
While forfeiture actions can be brought in both state and federal court, a state court and a
federal court “cannot simultaneously exercise in rem jurisdiction over the same property.” United
States v. $270,000.00 in U.S. Currency Plus Interest, 1 F.3d 1146, 1147 (11th Cir.1993). In order
to avoid this conflict, “the principle, applicable to both federal and state courts, is established that
the court first assuming jurisdiction over the property may maintain and exercise that jurisdiction
to the exclusion of the other.” Id. at 1148. Once a state court has assumed jurisdiction over a res,
a federal court cannot assert jurisdiction over the same res until it has been transferred pursuant to
state statute or by a turnover order from the state court. United States v. One 1987 Mercedes Benz
Roadster 560 SEC, VIN WDBBA48D3HA064462, 2 F.3d 241, 243 (7th Cir.1993). Therefore, when
parties assert competing claims to the same property in state and federal court, the first question to
resolve is where in rem jurisdiction first attached.
2. When In Rem Jurisdiction Attaches Under Alabama State Law
Traditionally, Alabama courts had interpreted Ala. Code § 20-2-93 as requiring a two-step
process for in rem jurisdiction to attach in a state court: (1) possession of the res, followed by (2)
the filing of an in rem action in state court. See Green v. City of Montgomery, 55 So. 3d 256, 263
(Ala. Civ. App. 2009). Under that analysis, in rem jurisdiction attached in state court after property
was seized only once an in rem action was brought in state court. If, after possessing property,
instead of commencing an in rem action, state officials instead gave the property to federal
authorities for the purpose of commencing forfeiture proceedings, and the federal authorities
accepted the transfer of the property, in rem jurisdiction attached first in federal, not state, court
through a process known as “adoptive forfeiture.” Ervin v. City of Birmingham, 137 So. 3d 901,
905 (Ala. 2013) (“Under the adoptive forfeiture doctrine, the United States’ adoption of the State’s
seizure of the plaintiffs’ cash has the same effect as if the government had originally seized the
currency . . . And it is the federal district court that has original jurisdiction of a federal forfeiture
action.”) (alterations incorporated and citations omitted). These principles of law governing the
attachment of in rem jurisdiction were the governing principles under forfeiture law in Alabama
when the Verified Complaint was filed in this case.
During the pendency of this case, however, the Alabama Court of Civil Appeals decided
Little v. Gaston, __ So. 3d __, No. 2150889, 2017 WL 836553 (Ala. Civ. App. Mar. 3, 2017), in
which it distinguished Green and clarified state forfeiture law. In Little, the court explained that
when property is seized pursuant to a state court-issued warrant, the state court acquires
constructive possession of the seized property upon the moment of seizure, and in rem jurisdiction
attaches in the warrant-issuing state court, “which it retains until it orders otherwise.” Id. at *3
(citing Republic Nat’l Bank of Miami v. United States, 506 U.S. 80, 88 (1992)).
In setting forth its analysis, the court in Little distinguished its decision from its earlier
decision in Green v. City of Montgomery. See 2017 WL 836553 at *4–5. In Little, property was
seized pursuant to a search warrant issued by a state court. In Green, property was seized without
a warrant during a lawful traffic stop. Id. at 4. In both cases, state authorities informally transferred
the property to federal authorities after its seizure and federal authorities commenced forfeiture
proceedings under federal law. The court in Little reasoned that the state officers did not have the
authority to release the property “to the control of the [federal authorities] without an order from
the trial court.” Id. at *5. Moreover, it was not significant that the federal authorities had physical
possession of the property because “mere possession by federal agents does not amount to control
for the purposes of establishing federal in rem jurisdiction.” Id. Instead, the warrant-issuing state
court retains constructive control over the property under § 15-5-141 upon the seizure of the
property, “which it retains until it orders otherwise.” Id. at *3.
Post-Little, therefore, it appears that in a case in which state officials seize property without
a warrant, in rem jurisdiction attaches in state court with the commencement of an in rem
proceeding. If the property is seized without a warrant and handed over by state officials and
accepted by federal officials, then, under adoptive forfeiture, in rem jurisdiction first attaches in
Ala. Code § 15-5-14 provides, in relevant part, “When the property is taken under a search
warrant, it shall be delivered to the court issuing the warrant. . . . If the warrant was issued on the
grounds specified in subdivisions (2) and (3) of Section 15-5-2, the officer effecting the warrant
shall retain the property in his possession, subject to the order of the court to which he is required
to return the proceedings or of the court in which the offense is triable in respect to which the
property was taken.”
federal court; but where state officials seize property pursuant to a state-issued warrant, in rem
jurisdiction attaches in state court at the time the property is seized. Id.
In this case, on March 14, 2016, Elmore County District Court Judge Glenn Goggans issued
two search warrants, authorizing officers to search Garth’s residence and seize any evidence
related to the March 13, 2016 shooting and for any evidence related to illegal narcotics. A joint
task force made up of officers from both state and federal law enforcement agencies, including the
Elmore County Sheriff’s Office, the Central Alabama Drug Task Force, and the federal Drug
Enforcement Administration went to Garth’s residence to execute the warrant. During the course
of their search, officers seized Defendants, $389,820.00 in United States currency, $15,780.00 in
United States currency, $4,550.00 in United States currency, 1972 Chevrolet Chevelle, and
Miscellaneous Jewelry.2 Accordingly, because property was seized pursuant to a state court
warrant, under Little, in rem jurisdiction attached in the Elmore County District Court upon the
seizure of the Defendant property. See id. The issue of when in rem jurisdiction attached is not,
however, the end of the inquiry in this case.
3. Transfer By the State Court Allows Jurisdiction to be Exercised in Federal Court
a. Authority to Transfer
Barton’s position in this case is that because the Elmore County District Court first had in
rem jurisdiction under Little, it still has in rem jurisdiction. Barton contends that there is no “state
The Verified Complaint states that Defendant, $4,550.00 in United States currency, was seized
from Garth’s vehicle prior to the issuance of any warrant, after officers found him shot in his car
at a Sonic Drive-In in response to a 911 call regarding the shooting, but before he was transported
to Baptist East Hospital. (Doc. # 1). However, in the Government’s Response, the Government
attaches a copy of the turnover order in which Judge Goggans states that Defendant $4,550.00 was
seized pursuant to a search and seizure warrant. (Doc. # 17-6). Therefore, for purposes of this
opinion, the court will assume that all Defendants were seized pursuant to a validly executed search
and seizure warrant.
statutory authority authorizing the transfer of a case from state to federal court where the state
court has lawful in rem jurisdiction over the case.” (Doc. # 36 at p.9). The Government does not
dispute that if Little applies,3 the Elmore County District Court first exercised in rem jurisdiction.
The Government takes the position, however, that while the Elmore County District Court first
exercised in rem jurisdiction, it voluntarily relinquished in rem jurisdiction to this court when it
issued a turnover order, and thereafter transferred the Defendant property to the custody of the
DEA (Doc. # 17, p. 5).
Turnover orders by state courts appear to be a generally accepted mechanism in other
jurisdictions for transfer of forfeited property by state authorities to federal authorities. See United
States v. $84,940 in U.S. Currency, 86 Fed. App’x. 978, 982 (7th Cir. 2004) (holding that, under
Wisconsin statutory forfeiture law, a federal court cannot subsequently exercise in rem jurisdiction
over the res, unless it has been transferred pursuant to a state statute or by a turnover order from
the state court); Scarabin v. Drug Enf’t Admin., 966 F.2d 989, 995 (5th Cir. 1992) (holding that,
under Louisiana statutory forfeiture law, the DEA must “first seek a turn over order from the state
court, or wait until that court relinquishes control over the res” before proceeding with a federal
forfeiture complaint); One 1987 Mercedes Benz Roadster, 2 F.3d 241 (7th Cir. 1993) (in a case
describing the application of Indiana law which existed before statutory amendment, stating that “
‘a turnover order from the circuit court of the county in which the [res] was seized’ is the
The court disagrees with the Government’s argument that Little does not apply because the
participation of federal officers made the search federal in nature (Doc. # 17). Members of a joint
task force, which included officers from both state and federal agencies, conducted the search.
Moreover, and perhaps most important, the search and seizure of Defendant property was
conducted pursuant to two warrants issued by a state court, not upon a warrant issued by a federal
court. The court in Little stated that it would have been beyond the state court’s authority to issue
a warrant to an agent in his capacity as a federal agent. Little, 2017 WL 836553, at *3. Therefore,
the warrant authorized seizure by state officials in this case.
appropriate method for seeking authority for a transfer from state authorities to federal authorities.
Lacking a turnover order, federal authorities did not obtain lawful possession of the res.’”) (citation
omitted); United States v. $25,000 in U.S. Currency, No. C-03-2547-SC, 2003 WL 22159054, at
*5 (N.D. Cal. Sept. 16, 2003) (finding under a California statutory forfeiture law (with the same
language “subject to the order of the court” language found in Ala. Code § 15-5-14) that “the
Defendant currency could not be handed over to the federal government without a state court
turnover order because the state court had already exerted in rem jurisdiction over the property).
Under Alabama statutory law, when a warrant is issued pursuant to §§ 15-5-2(2) and 155-2(3), “the officer effecting the warrant must retain the property in his possession, subject to the
order of the court to which he is required to return the proceedings or of the court in which the
offense is triable in respect to which the property was taken.” Ala. Code § 15-5-14 (emphasis
added). A plain reading of this language shows that the statute allows for the transfer of property
by the warrant-issuing state court. That is, although an officer is under a duty to retain possession
of property seized under §§ 15-5-2(2) or (3)—and, as the court found in Little, the state court
“assumes constructive control over the seized property, which it retains until it orders otherwise,”
2017 WL 836553, at *4 (emphasis added)—the court may order its transfer and, therefore,
relinquish its control over that property at that moment. See United States v. $7,050.00 in United
States Currency, No. 2:15cv958-WC, 2016 WL 4257044, at *6 & n.6 (noting, before Little was
decided, that cases applying the law of other states “have concluded that in rem jurisdiction does
automatically vest, and that a ‘turnover order’ is required to divest the state court of jurisdiction
and permit a federal court to assert jurisdiction over property seized pursuant to state law.”).
Because Ala. Code § 15-5-14 gives a warrant-issuing state court discretion to order the transfer of
property to federal authorities, Alabama courts may relinquish control over the res through a
turnover order which transfers control of the property to federal authorities, and a federal court
may then exercise in rem jurisdiction over the same property in a forfeiture proceeding.
In this case, there is no dispute that the Elmore County District Court ordered the transfer
of the property to the DEA for forfeiture (Doc. # 17-6). On April 6, 2017, Elmore County District
Court Judge Goggans issued a “turnover order” relinquishing any control over the subject property
“for purposes of Federal forfeiture proceedings.” Id. When the DEA accepted the property, the
property was subject to the exclusive in rem jurisdiction of this court. See United States v.
$178,858.00 in U.S. Currency, No. 2:06-CV-01651-RDP, 2013 WL 5524699, at *5 (N.D. Ala.
Oct. 3, 2013), aff’d sub nom. United States v. Currency, In U.S. $178,858.00, 569 F. App’x 649
(11th Cir. 2014) (“The threats posed to federalism and comity by the usurpation of jurisdiction or
the maintenance of parallel proceedings are nonexistent in the present situation, as the state court
has made no attempt to assert in rem jurisdiction.”).
b. Barton’s Arguments as to the Validity of the Transfer
Barton has advanced several arguments as to why, even if a state court may have the
authority to order transfer of control of property seized pursuant to a state court-issued warrant,
the purported turnover order of the Elmore County District Court in this case was invalid, so that
jurisdiction is still being exercised in state court. Barton has pointed out that the Elmore County
District Court rescinded its initial transfer order. Barton also relies on the fact that she was
proceeding in state court and that that case had not been brought to final judgment. Barton
contends that she had no notice of the turnover order to this court, impairing her due process rights.
Barton finally objects that the language of the turnover order in this case did not purport to
relinquish jurisdiction, but only transferred possession of the property, and so was ineffective.
The court begins with the latter of these arguments first. As discussed above, a state court
can order transfer of control of property seized pursuant to state court warrant through a turnover
order. The effect of this is to transfer the res to federal authorities, pursuant to which the federal
court then exercises in rem jurisdiction. The initial transfer order, signed by Judge Goggans, who
issued the search warrants, orders a motion granted which seeks a “turn over” of property “to the
DEA for purposes of Federal forfeiture proceedings, thereby relinquishing any jurisdiction this
court may now have over the said property.” (Doc. #17-6).
In addition, it appears to the court that it is the possession, or more precisely, the right to
possess, the property that is being transferred to federal authorities through a turnover order that
determines the issue in this case, rather than a transfer of jurisdiction. In “adoptive forfeiture,” it
is the right to control property which is transferred. United States v. Currency, In U.S. $178,858.00,
569 F. App'x 649, 650 (11th Cir. 2014) (stating “the doctrine of “adoptive forfeiture”—under
which a federal court can adopt a state or local seizure and subsequently deem the property to have
been seized by the federal government . . . .”) Because Little is a new decision, and the cases which
apply the concept of “adoptive forfeiture” when a state official transfers possession to a federal
official arose before Little was decided, the court hesitates to conclude that “adoptive forfeiture,”
as a concept, applies in the context of a turnover order. It is, however, apparent that the transfer
being made pursuant to a turnover order is of control of property, similar to an “adoptive
forfeiture.” See $178,858.00 in U.S. Currency, 2013 WL 5524699, at *5 (stating “[w]hether or not
the ‘adoptive forfeiture’ label is affixed to the present case, the doctrine's operative characteristic
(i.e., state court complicity in federal forfeiture proceedings) is present in instant case, and that
eliminates any concern that animate the so-called ‘rule of prior exclusive jurisdiction.’”). In Little,
the court explained that a state search warrant commands that the state law enforcement officer
who seizes the property “shall retain possession of the property subject to further orders of the
court,” and that “a court issuing a search warrant . . . assumes constructive control over the seized
property, which it retains until it orders otherwise.” Little, 2017 WL 836553, at *3. Because it is
transfer of possession which is at issue, in this case, in which the state court ordered transfer of the
property, the wording of the state court order does not defeat in rem jurisdiction in this court.
Barton’s argument that the district court rescinded its turnover order was an argument made
in a brief filed in this court prior to the second turnover Order on May 3, 2017 by the Elmore
County Circuit Court. On May 3, 2017, the Elmore County Circuit Court ordered the property
transferred to the DEA “pursuant to the authority in Little v. Gaston . . . .” (Doc. # 26-2). Therefore,
whether the Elmore County District Court’s order rescinding its initial turnover order could have
any effect on that court’s continued exercise of in rem jurisdiction, or this court’s subsequent
exercise of in rem jurisdiction, that issue has been rendered moot by the Order entered by Circuit
Court of Elmore County. As a result, the state has properly transferred the property to federal
agents for the pursuit of forfeiture under federal law as authorized under Ala. Code 15-5-14.
As to Barton’s argument that her state court action was not brought to final judgment and,
therefore, the state court still has jurisdiction, the United States responds that the case law Barton
relies on is inapposite because the cases deal with divesting jurisdiction by another court, not
transfer to another court.4
Barton has also argued that the state court did not promptly initiate a forfeiture action in
compliance with Ala. Code §20-2-93(c). While there is a limit on the time in which a state court
has to initiate a forfeiture proceeding, and there may even be a requirement that there must be
prompt action for turnover orders under state law, this court’s ability to proceed with forfeiture is
not affected by those state law limits. Cf. United States v. $639,470.00 U.S. Currency, 919 F.
Supp. 1405, 1414 (C.D. Cal. 1996) (stating that the “federal government's approval of the state's
request made late and in violation of state procedural rules was the end of the issue” and the
federal court had jurisdiction through adoption). Moreover, in this case, given the prompt action
by state and federal officials, which was required because of the intervening decision of Little, a
One case relied on by Barton, Steensland v. Alabama Judicial Inquiry Com’n, 87 So.3d
535, 542 (Ala. 2012), held that a retirement did not deprive the Judicial Inquiry Commission from
exercising jurisdiction to adjudicate charges in a complaint, and there is no discussion of any
transfer. Other cases, such as Glazner v. Jenkins, Judge, 186 So. 475, 476 (Ala. 1939), stand for
the broad proposition that the “first court which acquires jurisdiction of the same cause of action
between the same parties should proceed with it to a final disposition and cannot be deprived of
this authority or duty to do so by a subsequent suit in another court of concurrent jurisdiction.”
In this case, the state court could and did relinquish control over the property by its order.
The federal court is not divesting or depriving the state court of its jurisdiction. Instead, the state
court transferred the property, which allowed the federal court to exercise jurisdiction. Cf. $25,000,
2003 WL 22159054, at *5 (stating “the Defendant currency could not be handed over to the federal
government without a state court turnover order because the state court had already exerted in rem
jurisdiction over the property.”)
In addition, as Alabama courts have recognized, there is a distinction between in rem
jurisdiction over the res and jurisdiction over the case. See Ervin, 137 So.3d at 904. Transfer of
the property did not by itself conclude the case filed by Barton in state court, and this court
expresses no opinion, and has no authority to comment on, proceedings which are still ongoing in
the state court case. In short, the court cannot conclude that the precedent Barton relies on
undermines the authority of a state court, in its own case, to order transfer of the right to control
property to federal authorities.
Regarding her notice argument, Barton does not cite any authority requiring such notice.
The Eighth Circuit has analyzed a due process argument in the context of an adoptive forfeiture
prompt action seems to have occurred.
and has explained that “because the DEA could adopt the seizure even if the MSHP was without
authority to transfer the property seized, because due process does not require any notice prior to
such an adoption, and because due process is not concerned with the identity of the sovereign
seeking to forfeit the seized property, but with the forfeiture action itself,” due process rights were
not violated by the adoptive seizure. Madewell v. Downs, 68 F.3d 1030, 1039–40 (8th Cir. 1995).
This court concludes that the same analysis applies here, and the turnover order was effective to
create in rem jurisdiction in this court.
c. Barton’s Argument That This Court Cannot Exercise of Jurisdiction After Transfer
In addition to the arguments as to the state court’s authority under state law, Barton has
also argued that this court did not have jurisdiction at the time that the Verified Complaint was
filed, and, therefore, does not currently have jurisdiction. Specifically, Barton argues that because
the Elmore County District Court did not issue a turnover order until after the Government filed
the Verified Complaint in this case, this court should dismiss this action, because, even if the
turnover order confers in rem jurisdiction to this court, the turnover order cannot cure the defect
that existed at the time of the Government’s original filing. Barton further asserts that because the
Government physically possessed the property before the turnover order gave it jurisdiction, the
exercise of jurisdiction is invalid, citing Green.
Green, of course, is state law, so while the court has consulted it, and other state law cases
to determine when the state had in rem jurisdiction, Green is not binding on this court as to its own
exercise of jurisdiction.
The Government cites United States v. $99,000, No. 1:10cv138-SEB-DKL, 2011 WL
2470665 (S.D. Ind. June 17, 2011). In that case, property was seized pursuant to a search warrant
issued by an Indiana state court. Later on, but before the state court issued a turnover order of the
property, a federal forfeiture complaint was filed in federal court. Afterwards, the state court
executed a turnover order transferring the property to federal authorities to pursue forfeiture in
federal court. The claimant challenged the federal court’s exercise of in rem jurisdiction, arguing
that the district court lacked jurisdiction to conduct federal forfeiture proceedings. The court
explained that even assuming that the state court had exercised jurisdiction over the property, the
property was subsequently transferred by turnover, which gave the court jurisdiction over the res.
Id. at *5. In essence, the federal court acquired in rem jurisdiction over the property when the state
court issued a transfer order, and it did not matter that the federal court did not have jurisdiction at
the time of the government’s original filing.5
In this case, the Government filed a Verified Complaint on December 20, 2016. Little
was subsequently decided, which revealed that in rem jurisdiction had attached in state court. This
court had subject matter jurisdiction in this case at the time the Verified Complaint was filed. The
Elmore County District Court issued a turnover order in response to Little, relinquishing any
control over the subject property “for purposes of Federal forfeiture proceedings” which then gave
this court jurisdiction over the property (Doc. # 17-6). Therefore, as in $99,000, the court finds
any lack of jurisdiction over the property that was within the constructive control of the state at
the time of the Government’s original filing, does not affect the court’s jurisdiction over the
property now that it has been properly turned over to the federal authorities for forfeiture. The fact
that Barton filed suit in state court seeking return of the property under state law cannot defeat the
The court in $99,000 went on to find that any time limitations related to the state’s ability to
initiate forfeiture proceedings against property after its seizure did not apply to the state’s ability
to turnover property to the federal government. The court reflected, “while the state had lost its
ability to initiate its own forfeiture proceedings . . . it was nonetheless permitted to hold the
property until either the final disposition of the case or it transferred the property to federal
authorities [under state law].” Id. at *6.
right of the United States to proceed with forfeiture under federal law after the state court exercised
its right to transfer control of the property itself under state law. The court concludes, therefore,
that it has jurisdiction in this case, and the Motion to Dismiss is due to be DENIED.
B. Barton’s Ability to Proceed with Her Claim In This Court
In its Motion to Strike the Verified Claim, the Government argues that Barton lacks
standing to assert a claim to the Defendant property because she failed to file a timely claim and
to file a timely Motion to Dismiss under Rules G(4)(b) and G(5)(b) of the Supplemental Rules—
Admiralty or Maritime Claims and Asset Forfeiture Actions (“Supplemental Rules”) (Doc. # 15).
Rule G(4)(b) states that a notice for filing a claim must state “a deadline for filing a claim, at least
35 days after the notice is sent.” 6
In this case, the direct notice provided 35 days from its service to file a claim. The notice
was served on December 30, 2016. The deadline, therefore, was February 3, 2017. Barton filed
her claim on February 15, 2017; 12 days after the deadline.
Rule G(5)(b) provides “A claimant must serve and file an answer to the complaint or a
motion under Rule 12 within 21 days after filing the claim.” As mentioned previously, Barton filed
a claim on February 15, 2017. Therefore, the deadline for filing an answer or motion under Rule
12 was March 8, 2017. Barton filed her Motion to Dismiss on March 22, 2017; 14 days after the
deadline. Because Barton missed both of these deadlines, and because, the Government argues,
both requirements must be strictly complied with to satisfy the statutory requirements of standing,
In its First Supplemental Response to Barton's Motion to Dismiss, the Government also argues
Barton has waived her right to challenge the court's in rem jurisdiction by failing to timely include
this objection in a Motion to Dismiss. The analysis below with regard to timeliness also applies to
this waiver argument.
the Government contends that Barton does not have standing to assert a claim to the Defendant
property in this case.
While the Government is correct that Barton’s claim and Motion were filed after the
deadlines as calculated from the filing of the original Verified Complaint, and the court may
require strict conformance with the rules in most cases, the court has discretion to extend the time
for filings in certain instances.
Among the factors the district court should consider in determining
whether to exercise its discretion include: the time the claimant
became aware of the seizure, whether the Government encouraged
the delay, the reasons proffered for the delay, whether the claimant
had advised the court and the Government of his interest in
defendant before the claim deadline, whether the Government
would be prejudiced by allowing the late filing, the sufficiency of
the answer in meeting the basic requirements of a verified claim, and
whether the claimant timely petitioned for an enlargement of time.
United States v. $125,938.63, 370 F.3d 1325, 1328–29 (11th Cir. 2004). In this case, all of these
factors weigh in favor of extending the deadlines in Barton’s favor. Although Barton has been
aware of the Government’s seizure for almost a year, as evidenced by the claim she filed with the
DEA in August 2016, she has diligently pursued her claim to the Defendant property since that
time. Moreover, during a hearing on Barton’s Motion to Dismiss, Barton’s counsel recounted the
unique legal developments in Little, and Barton’s good faith attempts to secure her rights to the
Defendant property in light of those developments. These factors all weigh in favor of extending
such deadlines in this case.
Moreover, in a case like this, where the court did not acquire in rem jurisdiction in the
forfeiture action until the state court issued a turnover order, the court must consider the timeliness
of Barton’s claim and Motion in light of the date upon which in rem jurisdiction attached in federal
court. It makes little sense to hold Barton to the Government’s deadlines set forth in the
Government’s Verified Complaint if this court did not have jurisdiction over the property at that
time. Moreover, now that this court has acquired in rem jurisdiction, it would be inequitable to
hold Barton to deadlines, which she may never have had to comply with if the state court had not
turned the property over to this court for adjudication.
Upon consideration of these factors, the court finds that Barton has standing to assert a
claim to the Defendant property in this case. Barton’s claim and Motion to Dismiss were timely
under the circumstances and do not affect her ability to pursue her claim in this forfeiture action.
Accordingly, the Government’s Motion to Strike Barton’s claim is due to be DENIED.
For the reasons stated herein, it is hereby ORDERED that Barton’s Motion to Dismiss
(Doc. # 14) and the Government’s Motion to Strike (Doc. # 15) are DENIED.
It is further ORDERED that Barton has until July 14, 2017 to file an Answer.
Done this 28th day of June, 2017.
/s/ W. Harold Albritton
W. HAROLD ALBRITTON
SENIOR UNITED STATES DISTRICT JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?