United States of America v. Vehicle 2003 GMC Sierra 3500 Pickup Truck, VIN 1GTJK33113F208636

Filing 51

OPINION AND ORDER denying re 47 MOTION for Reconsideration filed by John Presley. Signed by District Judge Patrick J. Duggan. (MOre)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

UNITED STATES OF AMERICA,
Plaintiff,

Case No. 05-74205

v.

Honorable Patrick J. Duggan

ONE 2003 GMC SIERRA 3500 PICKUP
TRUCK, VIN: 1GTJK33113F208636,
Defendant.
/
OPINION AND ORDER
On November 2, 2005, the Government filed this forfeiture suit, naming as in rem
defendant a vehicle seized by agents of the Drug Enforcement Agency. The forfeiture
action was stayed pending completion of the underlying criminal proceedings against the
sole claimant to this property, John David Presley. Presley was convicted and after the
conviction, the Government filed a motion to allow an interlocutory sale of the vehicle.
On June 15, 2009, the Court granted this motion and the vehicle was sold in August
2009. The Court subsequently vacated Presley’s conviction pursuant to 28 U.S.C. § 2255
and, upon the Government’s motion, the Court dismissed the indictment. On October 26,
2011, the Government moved for summary judgment in the forfeiture action, which the
Court denied. After an unsuccessful settlement conference, the Government moved for
an entry of an order voluntarily dismissing the forfeiture action with prejudice pursuant to
Federal Rule of Civil Procedure 41(a)(2), which the Court granted on June 28, 2012. The

Court found that Presley would not be prejudiced by an order voluntarily dismissing the
action because he had not filed a compulsory counterclaim against the Government and
had therefore effectively waived any claim for money in excess of the sale proceeds.
Presley then filed a motion for reconsideration pursuant to Eastern District of Michigan
Local Rule 7.1(h), and this motion is presently before the Court. Having considered
Presley’s arguments, the Court does not find a “palpable defect” in its June 28, 2012
Opinion and Order that would have led to a different disposition of the Government’s
motion for voluntary dismissal.
Eastern District of Michigan Local Rule 7.1(h) states the grounds for granting a
motion for reconsideration, providing:
The movant must [1] not only demonstrate a palpable defect
[2] by which the court and the parties have been misled but
also [3] show that correcting the defect will cause a different
disposition of the case.
E.D. Mich. LR 7.1(h)(3). “A ‘palpable defect’ is ‘a defect that is obvious, clear,
unmistakable, manifest, or plain.’” United States v. Lockett, 328 F. Supp. 2d 682, 684
(E.D. Mich. 2004) (citation omitted). “[T]he court will not grant motions for rehearing or
reconsideration that merely present the same issues ruled upon by the court, either
expressly or by reasonable implication.” E.D. Mich. LR 7.1(h)(3). The purpose of a
motion for reconsideration is not “‘to give an unhappy litigant one additional chance to
sway the judge.’” Pakideh v. Ahadi, 99 F. Supp. 2d 805, 809 (E.D. Mich. 2000) (quoting
Durkin v. Taylor, 444 F. Supp. 879, 889 (E.D. Va. 1977)).

2

Presley’s argument in support of his reconsideration motion is two-fold. First,
Presley argues that the Government failed to comply with this Court’s July 15, 2009
Order permitting the interlocutory sale of the vehicle, which instructed the Government
that “[t]he Defendant Vehicle shall not be sold for less than two-thirds of its appraised
value according to the NADA guide.” (July 15, 2009 Order ¶ 3, ECF No. 17.) The
pickup truck was sold in August 2009 for approximately $17,500, which, according to the
Government, was two-thirds of the NADA value at the time of the sale. Presley’s
position is that he is entitled to receive two-thirds of the fair market value of the vehicle
at the time it was seized, which, in 2005 was $27,050.00. (Def.’s Reply 2, ECF No. 50.)
Second, Presley asks this Court to permit him to bring a counterclaim against the
Government to receive the roughly $10,000 he believes he was entitled to based on his
valuation of the truck.
Both of Presley’s arguments were presented to the Court in response to the
Government’s motion for voluntary dismissal. Although Presley mistakenly filed a
“Settlement Conference Statement” instead of asserting a counterclaim in responding to
the Government’s motion, the Court considered Presley’s contentions regarding the
proper sale price and impliedly rejected them when it held that Presley waived his
compulsory counterclaim against the Government. (June 28, 2012 Op. & Order 5, ECF
No. 40.)
In granting the Government’s motion for voluntary dismissal, the Court noted that
Presley was not entitled to make a claim for money in excess of the proceeds of the sale
because Presley had not filed a compulsory counterclaim pursuant to Federal Rule of
3

Civil Procedure 13(a)(1). Even if Presley had properly filed a counterclaim in lieu of
mistakenly filing the “Settlement Conference Statement,” a palpable defect would not
exist. As the Court noted, “Rule 41(a)(2)’s counterclaim language applies where the
counterclaim was pleaded before service of the motion for voluntary dismissal. This
suggests that a party should not be able to oppose a motion for voluntary dismissal by
pleading a counterclaim in response to the motion.” (June 28, 2012 Op. & Order 6, n.4.)
Presley filed the “Settlement Conference Statement” after the Government moved for
voluntary dismissal and therefore, even if his contention that he meant to file a
counterclaim is correct, the result of the Court’s June 28, 2012 Opinion and Order would
remain unchanged. In other words, had Presley filed a counterclaim in lieu of the
“Settlement Conference Statement,” this counterclaim would, in essence, have been filed
in opposition to the Government’s motion for voluntary dismissal.
Moreover, in responding to the present motion, the Government has indicated that
it has never consented to a counterclaim or waived sovereign immunity in this civil
forfeiture case.1 Fed. R. Civ. P. 13(d) (explaining that the rules governing counterclaims
“do not expand the right to assert a counterclaim . . . against the United States”). Presley
has provided no basis, either by way of allegation or evidence, that the Government
consented to be sued by Presley for whatever he believes is or was the value of the seized
truck. In light of the Court’s June 28, 2012 Opinion and Order, which provided that (1)
the United States and its agents had reasonable cause for the seizure of Defendant
1

Local Rule 7.1(h)(2) provides that no response to a motion for reconsideration is
permitted unless the Court orders otherwise. In the instant action, the Court issued a
notice permitting the Government to respond on August 16, 2012. (ECF No. 48.)
4

Vehicle under 28 U.S.C. § 2465, and that the Government’s position in the underlying
forfeiture suit was substantially justified under the Equal Access to Justice Act, 28 U.S.C.
§ 2414(d)(1)(B), the Court believes that the Government’s sovereign immunity argument
is correct. (June 28, 2012 Op. & Order 6-9.)
In sum, the Court has previously addressed the arguments Presley submits in
support of his motion for reconsideration. The Local Rules explain that the Court “will
not grant motions for rehearing or reconsideration that merely present the same issues
ruled upon by the court, either expressly or by reasonable implication.” E.D. Mich. LR
7.1(h)(3). Moreover, Presley has not identified a palpable defect warranting a different
ruling on the Government’s motion for voluntary dismissal because he has not shown
how the Court and the parties were misled in the instant case. The Court has carefully
reviewed Presley’s arguments, but concludes that it did not err in granting the
Government’s motion for voluntary dismissal.
Accordingly,
IT IS ORDERED that Presley’s motion for reconsideration is DENIED.

Dated: January 2, 2013
s/Patrick J. Duggan
UNITED STATES DISTRICT JUDGE
Copies to:
John David Presley, pro se
6420 Silverbrook W
West Bloomfield, MI 48322
Tauras N. Ziedas, A.U.S.A.
Andrew N. Wise, Esq.
5