United States of America v. One Savage 67 .410 Bore Shotgun et al

Filing 13

OPINION AND ORDER GRANTING 12 Motion to Strike 11 Claim ofMary Shelton. Signed by Judge William S. Duffey, Jr on 8/5/2013. (anc)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
v.

1:12-cv-3614-WSD

ONE SAVAGE 67 .410 BORE
SHOTGUN et al.,
Defendants.

OPINION AND ORDER
This matter is before the Court on Plaintiff’s Motion to Strike Claim of Mary
Shelton [12] (“Motion to Strike”).
I.

BACKGROUND
On October 17, 2012, Plaintiff United States of America (“Plaintiff”) filed

this in rem action seeking the forfeiture of two firearms and 149 rounds of
ammunition (the “Defendant Property”). In its Complaint [1], Plaintiff alleges
that, on June 20, 2012, its agents discovered the Defendant Property in the
bedroom of Rex Bartholomew (“Bartholomew”), a convicted felon. In the course
of their investigation, the agents learned that Bartholomew’s bedroom was in a
house owned by Claimant Mary Shelton (“Claimant”). Claimant told the
investigators that the Defendant Property belongs to her and that she had asked

Bartholomew to store it in his bedroom. Plaintiff seized the Defendant Property on
the ground that Bartholomew possessed it in violation of 18 U.S.C. § 922(g)(1).
On December 10, 2012, pursuant to Rule G(4)(b) of the Supplemental Rules
for Admiralty or Maritime Claims and Asset Forfeiture Actions (“Supplemental
Rules”), Plaintiff sent to Claimant a notice [6] (the “Notice”) informing Claimant
of this action and instructing Claimant on how to assert an interest in the
Defendant Property. The Notice expressly directed Claimant to Rule G(5) of the
Supplemental Rules and informed Plaintiff that, under Rule G(5), she was required
to file both (i) a “claim,” as described in Rule G(5)(a), on or before January 15,
2013, and (ii) an answer or Rule 12 motion in response to Plaintiff’s Complaint, as
discussed in Rule G(5)(b), within twenty-one (21) days of filing her claim. (Notice
[6].)
On January 10, 2013, Claimant filed her claim [11], under Rule G(4)(a),
asserting an interest in all of the Defendant Property. Claimant did not file an
answer or Rule 12 motion in response to Plaintiff’s Complaint.
On February 21, 2013, Plaintiff filed its Motion to Strike Claimant’s claim
on the ground that Claimant failed to file an answer or Rule 12 motion. Claimant
did not oppose, or otherwise respond to, the Motion to Strike.

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II.

DISCUSSION
Rule G of the Supplemental Rules governs this action. See Supp. R. G(1)

(“This rule governs a forfeiture action in rem arising from a federal statute.”). The
Rule allows a person asserting an interest in the defendant property to assert and
pursue a claim by filing (i) a written claim, in the form prescribed in Rule G(4)(a),
within thirty-five days (35) of receiving notice of the action from the plaintiff, and
(ii) an answer to the complaint or Rule 12 motion within twenty-one days of filing
his written claim. Supp. R. G(4)(b)(ii), (5)(a)–(b). The plaintiff may move to
strike a claim that is not presented in conformity with these requirements. Supp. R.
G(8)(c).
In this action, although Claimant filed a written claim as required by Rule
G(5)(a), Claimant failed to file an answer or Rule 12 motion, as required by Rule
G(5)(b). Claimant’s claim is thus required to be stricken. See Supp. R. G(8)(c);
see also United States v. $114,031.00 in U.S. Currency, 284 F. App’x 754, 756
(11th Cir. 2008) (citing Dresdner Bank AG v. M/V Olympia Voyager, 463 F.3d
1233, 1237 (11th Cir.2006)) (explaining that a claimant’s failure to comply with
Rule G(5) deprives the claimant of standing to proceed); United States v. All
Assets Held at Bank Julius Baer & Co., 664 F. Supp. 2d 97, 102–03 (D.D.C. 2009)
(holding that claimants’ failure to file an answer required claims to be stricken);

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United States v. 40 Acres of Real Prop., More or Less, 629 F. Supp. 2d 1264, 1275
(S.D. Ala. 2009) (same).1
III.

CONCLUSION
Accordingly, for the foregoing reasons,
IT IS HEREBY ORDERED that Plaintiff’s Motion to Strike Claim of

Mary Shelton [12] is GRANTED. Claimant Mary Shelton’s Claim [11] is
STRICKEN.

SO ORDERED this 5th day of August, 2013.

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Because Claimant did not oppose, or otherwise respond to, Plaintiff’s Motion to
Strike, the Court further finds that Claimant has abandoned her claim for the
Defendant Property. See St. Andrews Presbyterian Coll. v. S. Ass’n of Colls. &
Sch., 679 F. Supp. 2d 1320, 1334–35 (N.D. Ga. 2009) (citing Bute v. Schuller
Int’l, Inc., 998 F. Supp. 1473, 1477 (N.D. Ga. 1998); Welch v. Delta Air Lines,
Inc., 978 F. Supp. 1133, 1137 (N.D.Ga.1997)) (“Failure to respond to an opposing
party’s arguments regarding a claim constitutes abandonment of that claim, and
warrants dismissal of the abandoned claim.”); see also LR 7.1(B), NDGa (“Failure
to file a response shall indicate that there is no opposition to the motion.”). For
this additional reason, Plaintiff’s Motion to Strike is required to be granted.

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