United States of America v. One Parcel of Property Located at 9607 Lee Road 72, Waverly, Lee County, Alabama et al

Filing 166

OPINION. The court declines to set aside the default against Nelms. An appropriate order will be entered granting plaintiff United States of America's motion for partial decree of forfeiture and severance as to the interest of Nelms in 8895 Lee Road, Waverly, Alabama. Signed by Honorable Judge Myron H. Thompson on 9/24/2014. (dmn, )

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, EASTERN DIVISION

UNITED STATES OF AMERICA,

)
)
Plaintiff,
)
)
v.
)
)
ONE PARCEL OF PROPERTY
)
LOCATED AT 8895 LEE ROAD
)
72, WAVERLY, LEE COUNTY,
)
ALABAMA, WITH ALL
)
APPURTENANCES AND
)
IMPROVEMENTS THEREON,
)
(Tax Map No.
)
43-06-07-25-0-000-014.001), )
)
Defendant.
)

CIVIL ACTION NO.
3:11cv937-MHT

OPINION
This civil forfeiture proceeding is now before the
court on plaintiff United States of America’s motion for
partial decree of forfeiture and severance as to the
interest of Tommie L. Nelms

(also known as Tommy Lee

Nelms) in 8895 Lee Road, Waverly, Alabama.
reasons that follow, the motion will be granted.

For the

I.
November

1,

BACKGROUND

2011:

This

civil

lawsuit

seeking

forfeiture of properties at the following locations was
filed: 9607 Lee Road and 8895 Lee Road, Waverly, Alabama.
November 18, 2011: Service was perfected on Tommie L.
Nelms, a potential claimant.
February

27,

2012:

The

clerk

the

court

entered

default against Nelms.
December 28, 2012, and March 19, 2014: Decrees of
forfeiture were entered as to as to 9607 Lee Road as to
all claimants, except as to Vicki Nelms who agreed to pay
the

government

$

28,681

in

lieu

of

forfeiting

the

property.
June 12, 2014: The government filed a motion for
forfeiture as to Nelms’s interest in 8895 Lee Road.
June 17, 2014: The court issued a show-cause order,
with a June 30 deadline, to Nelms.
June 25, 2014: Nelms requested additional time to
respond to the show-cause order.

2

June 26, 2014: The court gave Nelms until August 4,
2014, to respond to the show-cause order.
July 30, 2014: Nelms filed a response to the showcause order.
September

12,

2014:

A

hearing

was

held

on

the

government’s motion for forfeiture as to Nelms’s interest
in 8895 Lee Road.

II.
With

his

response

DISCUSSION
of

July

30,

2014,

Nelms

is

essentially asking that this court set aside the default
the clerk of the court entered against him on February
27, 2012.
against

Whether Nelms is entitled to have the default

him

set

aside

is

controlled

by

Fed.R.Civ.P.

55(c), which provides that, “The court may set aside an
entry of default for good cause.” To determine whether
there is good cause, courts look to a range of factors,
including “whether the default was culpable or willful,
whether setting it aside would prejudice the adversary,

3

and whether the defaulting party presents a meritorious
defense.” Compania Interamericana Export–Import, S.A. v.
Compania Dominicana de Aviacion, 88 F.3d 948, 951 (11th
Cir.1996).
At the hearing on September 12, it became clear to
the

court

that,

although

in

prison

since

2011

and

although of limited education, Nelms fully appreciated
what was at issue when he was served in November 2011.
Yet for three years he did absolutely nothing to protect
his interests.

The court does not believe that there is

any good cause for his failure in this regard.

Moreover,

all pretrial proceedings (including discovery) are at an
end and this case is ready to go to trial.

To set aside

the default against Nelms at this time and then to allow
all pretrial proceedings (including discovery and the
filing

and

resolution

of

dispositive

motions)

to

be

reopened as to all claimants (for efficiency dictates
that all claims as to all parties should be resolved in
one trial) would greatly prejudice not only the plaintiff

4

but also the other claimants who also surely want this
case resolved soon as possible.

And whether Nelms has a

meritorious claim is debatable at best.
The court therefore declines to set aside the default
against Nelms.

An appropriate order will be entered

granting plaintiff United States of America’s motion for
partial decree of forfeiture and severance as to the
interest of Nelms in 8895 Lee Road, Waverly, Alabama
DONE, this the 24th day of September, 2014.

/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE