United States of America v. $76,921.47 in US Currency seized from Account No. ******6541 located at Wells Fargo Bank et al

Filing 35

ORDER denying 30 Ms. Womack's Motion for Reconsideration. Signed by Judge David G Campbell on 2/4/14.(LSP)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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United States of America,

No. CV-12-02258-PHX-DGC

Plaintiff,

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ORDER

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v.

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$76,921.47 seized from Wells Fargo Bank
Account XXXXXX6541, et al.,

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Defendants.

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The Court entered summary judgment in favor of the government on

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October 10, 2013. Doc. 26. The Court denied Claimants White and Higginbotham’s

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motion to vacate on October 23, 2013. Doc. 29. In their motion to vacate, Claimants

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asserted that an unrepresented party, Ms. Pamela Womack, was prejudiced by the Court’s

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order granting summary judgment. Doc. 28 at 5. In its order denying Claimants’ motion,

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the Court noted that Womack had not filed an answer or otherwise appeared in the action.

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As a result, the Court concluded that she is not a claimant in this case. Indeed, default

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had been entered against her and all potential claimants other than White and

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Higginbotham on June 20, 2013.

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reconsideration. Doc. 30. The Court will deny the motion.

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I.

Doc. 22.

Womack has now filed a motion for

Background.

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The IRS seized many assets from Claimant White’s home in April 2012, including

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the 2007 Harley Davidson V-Rod motorcycle (“V-Rod”) at issue in Womack’s motion

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for reconsideration. On June 25, 2012, the IRS sent Womack a notice of administrative

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forfeiture proceedings warning Womack that if she wished to submit a claim to the V-

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Rod, she must do so by July 30, 2012. Doc. 34-1 at 1-4. The IRS’ notice was sent via

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certified mail, return receipt requested. On July 10, 2012, Marcus Womack, Womack’s

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cousin who lived with her, signed the return receipt. Id. at 5. Womack never filed a

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claim with the IRS.

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Womack asserts that she never received any paperwork or notice in relation to this

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or any other forfeiture action. Doc. 30 at 2. She believes that her cousin kept the

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paperwork from her to punish her for kicking him out of her home. Id.

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II.

Discussion.

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A.

Criminal Forfeiture.

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The notice provided by the IRS complied with statutory law and with Supreme

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Court precedents. 18 U.S.C. § 983(a)(1)(A)(i) (administrative notice of forfeiture “shall

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be sent in a manner to achieve proper notice[.]”); Mullane v. Cent. Hannover Bank &

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Trust Co., 339 U.S. 306, 314 (1950) (holding that while actual notice is not required,

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notice must be “reasonably calculated under all the circumstances” to apprise relevant

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persons of pending proceedings); see also Dusenberry v. United States, 534 U.S. 161,

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172-73 (2002) (affirming Mullane’s rule that method of sending notice must be

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reasonably calculated to provide actual notice and that government is not required to

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prove that intended recipient had actual notice).

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constructive notice of the forfeiture proceedings.

Womack was thus on notice or

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The government has also demonstrated that Womack was on actual notice that the

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government was seeking forfeiture of the V-Rod. Womack’s uncle, Claimant White, was

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indicted and prosecuted for trafficking and money laundering conspiracies.

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criminal trial, Womack was called as a witness to testify about the seizure and forfeiture

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of the V-Rod. On March 27, 2013, she testified that she was Claimant White’s niece, that

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she paid cash for the V-Rod, and that the government seized the V-Rod from Claimant

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White’s home. Doc. 34-2 at 3-5. She was clearly on notice that the government was

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In his

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seeking forfeiture of the V-Rod. Nevertheless, she failed to assert a claim to the V-Rod

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until November 2013.

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The jury found Claimant White guilty on all counts against him. It also found that

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there was a nexus between the V-Rod and the conspiracy offenses. Doc. 34-3 at 8. The

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Court entered a preliminary order of forfeiture on June 26, 2013, finding that there was a

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nexus between the V-Rod and Claimant White’s criminal conduct. Doc. 34-4 at 2. As

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required, the government published notice of the intended forfeiture for 30 days.

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Doc. 34-5. Again, Womack failed to file a claim to the V-Rod. Because Womack was

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on notice or constructive notice of the forfeiture proceedings and failed to file a claim or

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petition for the V-Rod, the Court concludes that her interest in the V-Rod was forfeited.

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B.

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The government instituted this civil action on October 22, 2012, in response to an

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administrative claim that Claimants White and Higginbotham filed with the IRS on

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July 23, 2012. Doc. 1. Although Womack claims that she was represented by counsel

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with respect to the motorcycle and this case (Doc. 30 at 1), she never filed a claim or an

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answer in this action. The Court entered default against all potential claimants other than

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Claimants White and Higginbotham on June 20, 2013. Doc. 22. On October 10, 2013,

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the Court granted the government’s motion for summary judgment seeking forfeiture of

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all of the assets claimed, including the V-Rod. Doc. 26. Womack requests that the Court

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reconsider its order granting summary judgment and that it “release [her] property to

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[her].” Doc. 30. Although the Court is sympathetic to her situation, it simply cannot

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grant the relief she requests given her repeated failures to timely file a claim to the

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forfeited property.

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Civil Forfeiture.

Womack’s motion is untimely. It was not filed within 14 days of the Court’s order
as required by Local Rule of Civil Procedure 7.2(g)(2).

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In addition, motions for reconsideration are disfavored and should be granted only

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in rare circumstances. See Stetter v. Blackpool, No. CV-09-1071-PHX-DGC, 2009 WL

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3348522, at *1 (D. Ariz. Oct. 15, 2009). A motion for reconsideration will be denied

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“absent a showing of manifest error or a showing of new facts or legal authority that

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could not have been brought to [the Court’s] attention earlier with reasonable diligence.”

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LRCiv 7.2(g)(1); see Carroll v. Nakatani, 342 F.3d 934, 945 (9th Cir. 2003). Mere

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disagreement with an order is an insufficient basis for reconsideration. See Ross v.

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Arpaio, No. CV 05-4177-PHX-MHM (ECV), 2008 WL 1776502, at *2 (D. Ariz. Apr. 15,

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2008). Nor should reconsideration be used to ask the Court to rethink its analysis. Id.;

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see N.W. Acceptance Corp. v. Lynnwood Equip., Inc., 841 F.2d 918, 925-26 (9th Cir.

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1988). Courts in this district have identified four circumstances where a motion for

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reconsideration will be granted: (1) the moving party has discovered material differences

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in fact or law from those presented to the Court at the time of its initial decision, and the

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party could not previously have known of the factual or legal differences through the

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exercise of reasonable diligence, (2) material factual events have occurred since the

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Court’s initial decision, (3) there has been a material change in the law since the Court’s

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initial decision, or (4) the moving party makes a convincing showing that the Court failed

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to consider material facts that were presented to the Court at the time of its initial

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decision. See, e.g., Motorola, Inc. v. J.B. Rodgers Mech. Contractors, Inc., 215 F.R.D.

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581, 586 (D. Ariz. 2003).

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Womack has not argued that any of the four circumstances apply to her and the

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Court does not believe that any apply. Womack appears to argue that she was denied due

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process of law because she never had notice of the forfeiture proceedings or because her

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lawyer failed to assert a claim on her behalf in this action. The Court cannot agree. The

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government has demonstrated that it satisfied the standard articulated in Mullane. In

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addition, the failure of Womack’s lawyer to assert a claim on her behalf is not a reason

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for the Court to grant her motion for reconsideration under the local rule.

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Given that Womack is effectively appearing pro se, the Court will also construe

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her filing as a motion for relief under Rule 60(b). The Court may grant a motion for

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relief from judgment under Rule 60(b) only “upon a showing of (1) mistake, surprise, or

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excusable neglect; (2) newly discovered evidence; (3) fraud; (4) a void judgment; (5) a

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satisfied or discharged judgment; or (6) extraordinary circumstances which would justify

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relief.” Id. at 1263; see Fed. R. Civ. P. 60(b); Allmerica Fin. Life Ins. & Annuity Co. v.

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Llewellyn, 139 F.3d 664, 666 (9th Cir. 1997) (stating that party must show “extraordinary

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circumstances” to obtain relief under Rule 60(b)(6)). The only ground upon which relief

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might plausibly be granted in Womack’s favor under Rule 60(b) is for excusable neglect.

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See Lemoge v. United States, 587 F.3d 1188, 1192 (9th Cir. 2009). The Court cannot

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conclude that Womack has established excusable neglect given her knowledge of the

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criminal case, her knowledge that the motorcycle was seized by the government almost

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two years ago, and her representation by counsel in this case. The Court concludes,

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therefore, that relief must not be granted under Rule 60(b).
IT IS ORDERED that Ms. Womack’s motion for reconsideration (Doc. 30) is
denied.
Dated this 4th day of February, 2014.

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