United States of America v. Fifty-Nine (59) Firearms

Filing 67

ORDER denying 51 Motion to Strike. Signed by Judge William T. Moore, Jr on 2/2/15. (bcw)

u.s.r
IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF GEORGA"[Tr_2
SAVANNAH DIVISION

UNITED STATES OF AMERICA,

F
ur

CASE NO. CV4 14-074

V.

FIFTY-NINE (59) FIREARMS,
Defendants.

ORDER

Before the Court is the Government's Motion to Strike
Claimant's Counterclaim. (Doc. 51.) In its motion, the
Government seeks to strike Claimant George F. Whitaker's
counterclaim against the Government. No response has been filed
in opposition to the motion.
In his Verified Answer and Counterclaim, Claimant Whitaker
asserts that he is the lawful and proper owner of one Glock
Pistol, Model 30S, SN: UDG781 ("Firearm 58"), but also purports
to bring a counterclaim against the Government for "attorney
fees and costs." (Doc. 47 at 2.) As the Government points out in
its motion, counterclaims are not usually permitted in civil
forfeiture actions. See United States v. $89,600 in U.S.
Currency, 2011 WL 4549604, at *2 (S.D. Ga. Sept. 29, 2011)
(unpublished). Because a civil forfeiture action is against the
property in rem, a claimant has no standing upon which to file a
counterclaim. See United States v. Assorted Computer Equip.,

2004 WL 784493, at

*2 (W.D. Tenn. Jan. 9, 2004) (unpublished)

("Counterclaims are generally not allowed by third parties in
civil in rem forfeiture proceedings.").
However, Claimant Whitaker's "counterclaim" appears to be
nothing more than a request for attorney's fees and Costs. Such
relief is not only permissible in a civil forfeiture action, but
is mandated by statute: "in any civil proceeding to forfeit
property under any provision of Federal law in which the
claimant substantially prevails, the United States shall be
liable for reasonable attorney fees and other litigation costs
reasonably incurred by the claimant." 28 U.S.C. § 2465(b) (1) (A).
Quite simply, despite Claimant Whitaker's mischaracterization of
the request as a counterclaim, there is nothing impermissible
about the relief he seeks. As prescribed by 28 U.S.C.
§ 2465 (b) (1) (A), Claimant Whitaker may pursue the requested
attorney fees and costs should he ultimately "substantially
prevail" in this action. Accordingly, the Government's motion is
DENIED.
SO ORDERED this

2'

day of February 2015.

WILLIAM T. MOORE, JR.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA