UNITED STATES OF AMERICA v. CURRENCY
Filing
28
ORDER denying 18 Motion for Reconsideration ; denying 20 Motion to Disqualify Judge; granting the Government's request for 90 days of discovery in this case. Ordered by Judge C. Ashley Royal on 3/1/13 (lap)
IN THE UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF GEORGIA
ATHENS DIVISION
UNITED STATES OF AMERICA,
:
:
Plaintiff,
:
:
v.
:
:
No. 3:11‐CV‐130 (CAR)
$28,000.00 IN UNITED STATES
:
FUNDS,
:
:
Defendant Property,
:
:
TIRRELL KITCHINGS,
:
:
Claimant.
:
___________________________________ :
ORDER ON MOTION TO DISQUALIFY DISTRICT JUDGE AND
MOTION FOR RECONSIDERATION
Before the Court are Claimant Tirrell Kitchings’ Motion to Disqualify District
Judge [Doc. 20] and Motion for Reconsideration [Doc. 18] of this Court’s Order
denying Claimant’s Motion for Summary Judgment. Having fully considered the
record of this case, the arguments of the parties, and the applicable law, the Court
hereby DENIES Claimant’s Motions [Docs. 18 & 20] for the following reasons.
BACKGROUND
On September 13, 2011, the Government filed a civil forfeiture action against the
Defendant property, alleging that it is subject to forfeiture pursuant to 21 U.S.C. §
881(a)(6) because it constitutes money furnished or intended to be furnished in
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exchange for a controlled substance. On January 6, 2012, before this Court had even
entered a Scheduling and Discovery Order, Claimant filed a motion for summary
judgment. In his summary judgment motion, Claimant argued that the vehicle search
was without probable cause, that there was no factual basis for the forfeiture, and that
the Government had admitted the funds seized were not subject to forfeiture because
it failed to file its admissions within the prescribed 30 days.
On September 24, 2012, this Court entered its Order denying, without
prejudice, Claimant’s motion for summary judgment.1 The Court clearly denied
summary judgment because Claimant prematurely filed his motion before the
Government had any meaningful opportunity to conduct discovery. In an effort to
clarify proper procedure and move the case along, the Court offered the parties notes
on the Claimant’s arguments. First, the Court offered its guidance to Claimant and
informed him that the proper vehicle to address illegally‐seized funds is a motion to
suppress, not a motion for summary judgment. In the same vein, the Court set forth
the law regarding admissions and stated that if the Government was to file a motion to
withdraw admissions, in accordance with the law, the Court would likely grant it.
Finally, the Court reiterated the civil forfeiture standard and pointed out that civil
forfeiture cases usually depend on the presentation of evidence and are not decided as
a matter of law.
1
Order on Claimant’s Motion for Summary Judgment, Doc. 17.
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As instructed by the Court, on September 28, 2012, Claimant filed his discovery
status report seeking no additional discovery but retaining his right to seek additional
discovery should the Government be permitted to do so.2 On October 1, 2012, the
Government filed its discovery status report seeking 90 days of discovery.3 On the
same day that Claimant filed his discovery status report, he also filed the Motions for
Disqualification and Reconsideration that are currently under review.
DISCUSSION
Motion for Disqualification
Claimant contends the undersigned must be disqualified pursuant to 28 U.S.C. §
455(a) based on the undersigned’s “Order on Claimant’s Motion for Summary
Judgment, the appearance of impropriety[,] and facts which would cause an objective
observer to reasonably suspect that the judge is biased[.]”4 However, as set forth in
detail below, Claimant’s request is based on his disagreement with the undersigned’s
ruling on his motion for summary judgment. Adverse rulings are not grounds for
recusal.5 No evidence exists showing any appearance of impropriety or bias, and thus
Claimant’s Motion must be denied.
Discovery Status Report by Claimant, Doc. 19.
Discovery Status Report by the Government, Doc. 21.
4 Claimant’s Motion to Disqualify District Judge, Doc. 20, p. 1.
5 Liteky v. United States, 510 U.S. 540, 555 (1994) (adverse rulings “almost never constitute a valid basis for
a bias or partiality motion.”).
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Under 28 U.S.C. § 455(a), “[a]ny justice, judge, or magistrate judge of the United
States shall disqualify himself in any proceeding in which his impartiality might
reasonably be questioned.”6 The inquiry of whether a judge’s impartiality might
reasonably be questioned under § 455(a) is an objective standard designed to promote
the public’s confidence in the impartiality and integrity of the judicial process.”7 The
test is whether a reasonable person with knowledge of all the facts would question the
judge’s impartiality. 8 Although any doubt “must be resolved in favor of recusal,”9 “a
judge, having been assigned to a case, should not recuse himself on unsupported,
irrational, or highly tenuous speculation.”10
To require recusal, a judge’s bias “must stem from an extrajudicial source and
result in an opinion on the merits on some basis other than what the judge learned from
his participation in the case.”11 “Ordinarily a judge’s rulings in the same . . . case may
not serve as the basis for a recusal motion.”12 Adverse judicial rulings are generally
“proper grounds for appeal, not for recusal.”13 Moreover, “[a] judge’s ordinary efforts
at courtroom administration” also do not show bias.14 “A judge has as strong a duty to
28 U.S.C. § 455(a).
Davis v. Jones, 506 F.3d 1325, 1332 n. 12 (11th Cir. 2007) (internal citations omitted).
8 In re Evergreen Sec., Ltd., 570 F.3d 1257, 1263 (11th Cir. 2009).
9 See Murray v. Scott, 253 F.3d 1308, 1310 (11th Cir. 2001).
10 U.S. v. Greenbough, 782 F.2d 1556, 1558 (11th Cir. 1986).
11 Jaffe v. Grant, 793 F.2d 1182, 1188‐89 (11th Cir. 1986).
12 McWhorter v. City of Birmingham, 906 F.2d 674, 678 (11th Cir. 1990).
13 In re Walker, 532 F.3d 1304, 1311 (11th Cir. 2008).
14 Liteky, 510 U.S. at 556.
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sit when there is no legitimate reason to recuse as he does to recuse when the law and
facts require.”15
Claimant first contends the undersigned showed bias by stating in the Order
denying summary judgment that it “would likely grant” a motion to withdraw
admissions if the Government filed one. Claimant contends this statement shows the
Order was based on an “unfiled, unmentioned, unjustified motion.”16 This is simply
not the case. The Court clearly denied Claimant’s motion for summary judgment
because it was prematurely filed before proper discovery had taken place, not based on
any unfiled motion by the Government. Indeed, the Court pointed out that without any
proper discovery, a party cannot assert ‐‐ and thus the Court cannot determine ‐‐
whether a fact is (or is not) in dispute. Thus, the motion was denied without prejudice
as prematurely filed.
In an effort to help the parties and clarify the issue, the Court set forth the legal
parameters surrounding admissions – an issue Claimant raised – and “note[d] that even
if this Court determined the Government failed to file its responses to Claimant’s
requests for admission within the prescribed 30 days, the Government could file a
motion to withdraw the admissions, which the Court would likely grant.”17 Contrary to
Claimant’s argument, the undersigned not only recognized that the Government had
United States v. Malmsberry, 222 F. Supp. 2d 1345 (M.D. Fla. 2002) (citation omitted).
Motion to Disqualify Judge, Doc. 20, p. 5.
17 Order on Claimant’s Motion for Summary Judgment, Doc. 17, p. 5 (emphasis added).
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not filed any such motion, but also acknowledged that the issue was not properly
before the Court and in no way resolved it. Just as the undersigned had earlier
explained to Claimant the proper method by which this Court must analyze a challenge
to an illegal seizure – through a motion to suppress rather than a motion for summary
judgment ‐‐ it too explained to the parties the proper way it must analyze any motion to
withdraw admissions. No objective layperson would question the undersigned’s
impartiality of this case based on this argument.
Claimant also argues that the Court’s remark that it would likely grant a
Government motion to withdraw admissions shows bias in light of the undersigned’s
prior decision in United States v. Johnson et al., 3:06‐CR‐41 (CAR). In Johnson, co‐
defendant Juanita Davenport filed a third‐party claim to seized funds that this Court
dismissed as untimely. Although the Order on the motion to dismiss in the Johnson case
and the summary judgment Order in this case both involve the timeliness of filings
during the course of a forfeiture proceeding, the similarity ends there. In the Johnson
case, the law mandated dismissal of Davenport’s untimely claim, as the “forfeiture
statute requires a third‐party claimant to file a claim ‘within thirty days of the final
publication of notice or [her] receipt of notice . . . whichever is earlier.’”18 On the
contrary, in this case, if the Government filed a motion to withdraw admissions, the law
is clear that the Court has discretion to grant such a request “if it would promote the
Order on Motion to Dismiss Third‐Party Claim, Case No. 3:06‐CR‐41, Doc. 742 p. 2 (citing 21 U.S.C. §
853(n)(2)).
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presentation of the merits of the action and if the court is not persuaded that it would
prejudice the requesting party in maintaining or defending the action on the merits.”19
The facts of these two cases are completely different and certainly provide no basis on
which an objective, disinterested lay observer could entertain significant doubt about
the undersigned’s impartiality.
Claimant also argues that the undersigned shows bias for unreasonably delaying
its ruling on Claimant’s motion for summary judgment and for allowing further
discovery in this case. These arguments in no way support recusal. The undersigned
shows no bias or impartiality by allowing the Government, and Claimant, should he
need it, the opportunity to conduct discovery. Moreover, after discovery is complete,
the Claimant still has an opportunity to file a motion for summary judgment. Claimant
clearly bases his Motion for disqualification on his disagreement with the undersigned’s
ruling on his motion for summary judgment ‐‐ an argument that provides absolutely no
basis for recusal.20
Accordingly, Claimant’s Motion for Disqualification is DENIED.
Motion for Reconsideration
Having found no reason for recusal, the Court will now address the Claimant’s
Motion for Reconsideration of the Court’s Order denying his motion for summary
judgment. Claimant proffers the same arguments used to support his motion for
19
20
Fed. R. Civ. P. 36(b).
See Liteky, 510 U.S. at 555; In re Walker, 532 F.3d at 1311; McWhorter, 906 F.2d at 678.
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disqualification that he does to support his motion for reconsideration: (1) that the
Order is based on granting an unfiled motion to withdraw admissions by the
Government; (2) that the Court unreasonably delayed ruling on the summary judgment
motion; and (3) that the Order is based on allowing discovery that the Government
never sought. These arguments, which have been thoroughly addressed by the Court
in the previous section, provide no basis for reconsideration.
Because Claimant has filed his Motion for Reconsideration within ten days of the
Court’s Order denying summary judgment, it will be decided under Rule 59(e) of the
Federal Rules of Civil Procedure.21 Such a motion “must demonstrate why the court
should reconsider its prior decision and set forth facts or law of a strongly convincing
nature to induce the court to reverse its prior decision.”22 Reconsideration of a previous
order is an extraordinary remedy and should be employed sparingly.23 Reconsideration
is justified when (1) there has been an intervening change in the law; (2) new evidence
has been discovered that was not previously available to the parties at the time the
original order was entered; or (3) reconsideration is necessary to correct a clear error of
law or prevent manifest injustice.24 Here, Claimant fails to demonstrate through new
evidence, intervening change in the law, or manifest injustice that this Court should
See, e.g., Hertz Corp. v. Alamo rent‐A‐Car, Inc., 16 F.3d 1126, 1131 (11th Cir. 1994).
Fla. Coll. of Osteopathic Med., Inc. v. Dean Witter Reynolds, Inc., 12 F. Supp. 2d 1306, 1308 (M.D. Fla. 1998).
23 Region 8 Forest Servs. Timber Purchasers Council v. Alcock, 993 F.2d 800, 805‐06 (11th Cir. 1993).
24 Richards v. United States, 67 F. Supp. 2d 1321, 1322 (M.D. Ala. 1999); McCoy v. Macon Water Auth., 966 F.
Supp. 1209, 1222‐23 (M.D. Ga. 1997).
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reconsider its denial, without prejudice, of Claimant’s motion for summary judgment.
Accordingly, Plaintiff’s Motion for Reconsideration [Doc. 18] is DENIED.
CONCLUSION
For the reasons explained above, Claimant’s Motion for Disqualification [Doc.
20] and Motion for Reconsideration [Doc. 18] are hereby DENIED. The Court hereby
GRANTS the Government’s request for 90 days of discovery in this case.25
SO ORDERED, this 1st day of March, 2013.
S/ C. Ashley Royal
C. ASHLEY ROYAL
UNITED STATES DISTRICT JUDGE
SSH
25
Discovery Status Report by United States of America, Doc. 21.
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