United States of America v. $70,932.00 United States Currency et al

Filing 72

DECISION AND ORDER denying 59 Plaintiff's Motion for Summary Judgment without prejudice consistent with the Decision and Order; denying 64 Motion to Dismiss. Signed by Hon. Michael A. Telesca on 7/5/19. (Copy of this Decision and Order sent by first class mail to Mr. Fitch.) (JMC)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
________________________________
UNITED STATES OF AMERICA,
DECISION AND ORDER
No. 1:16-cv-00245

Plaintiff,
-vs70,932.00 UNITED STATES CURRENCY,
ET AL.,
Defendants.
________________________________

I.

Introduction
Plaintiff United States of America filed this in rem action on

March 24, 2016, seeking forfeiture of $70,932.00 in United States
Currency seized from claimant Andrew D. Fitch (“Fitch”), as well as
motor vehicles, a stump grinder, snow mobiles, a wave runner, and
televisions.

Docket No. 1.

The complaint stems from Fitch’s

arrest in Lockport, New York, in February 2013, as well as the
execution of search warrants at his residence in May 2013 and
November 2015, for drug-related activities.
claim for the property on July 27, 2016.

Id.

Fitch filed a

Docket No. 25.

Claimant

Bank of America, N.A., also filed a claim for one of the motor
vehicles, on May 27, 2016.1

Docket No. 12.

1

On April 25, 2018, in response to the Government’s pending motion for
summary judgment, Bank of America filed an attorney affidavit, withdrawing its
claim to the motor vehicle, as Fitch had paid the retail installment contact in
full and was issued a lien release, thereby extinguishing any interest Bank of
America had in the property. See Docket No. 62.

Thereafter, on July 27, 2016, and August 17, 2016, Fitch filed
motions to dismiss.

Docket Nos. 28, 30.

On October 24, 2016, the

Honorable Hugh B. Scott, United States Magistrate Judge, issued a
Report

and

Recommendation

motions be denied.

(“R&R”),

Docket No. 33.

adopted the R&R in its entirety.

recommending

that

Fitch’s

On June 25, 2019, the Court

Docket No. 70.

The parties previously engaged in settlement discussions, but
ultimately were unable to settle the case.
48, 49, 50.

Docket Nos. 45, 46, 47,

On April 11, 2018, Plaintiff filed a motion for

summary judgment, seeking forfeiture of the defendant properties.
Docket Nos. 59, 60.

Fitch filed a response on April 26, 2018.

Docket No. 63.
Thereafter, on April 1, 2019, Fitch filed a third motion to
dismiss.
2019.

Docket No. 64.

Plaintiff filed its response on May 3,

Docket Nos. 66, 67.

The case was transferred to the undersigned on June 21, 2019.
Docket No. 68.

On June 26, 2019, the Court vacated the June 16,

2016 referral order (Docket No. 17), directing that Judge Scott
hear and report upon dispositive motions.

Docket No. 71.

This

Decision and Order addresses the currently-pending motion for
summary judgment filed by the United States (Docket No. 59), and
the currently pending motion to dismiss, filed by Fitch (Docket No.
64).

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II.

Fitch’s Motion to Dismiss
A.

Standard

To withstand a Rule 12(b)(6) motion to dismiss, the complaint
must plead facts sufficient “to state a claim for relief that is
plausible on its face.”
570 (2007).

Bell Atl. Corp. v. Twombly, 550 U.S. 544,

“A claim has facial plausibility when the plaintiff

pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “The plausibility
standard is not akin to a ‘probability requirement,’ but it asks
for more than a sheer possibility that a defendant has acted
unlawfully.” Id. Thus, “[w]here a complaint pleads facts that are
merely consistent with a defendant’s liability, it stops short of
the line between possibility and plausibility of entitlement to
relief.”

Id. (internal citations and quotation marks omitted).

Determining whether a complaint meets the plausibility standard is
“context-specific”

and

requires

that

judicial experience and common sense.”

the

court

“draw

on

its

Id. at 679. The Court must

“accept the factual allegations set forth in the complaint as true
and draw all reasonable inferences in favor of the plaintiff.”
Nicholson v. Allied Interstate, LLC, 91 F. Supp. 3d 365, 368
(E.D.N.Y. 2015) (citing Cleveland v. Caplaw Enters., 448 F.3d 518,
521 (2d Cir. 2006)).

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For civil forfeiture actions, “[n]o complaint may be dismissed
on the ground that the Government did not have adequate evidence at
the time the complaint was filed to establish the forfeitability of
the property.”

18 U.S.C. § 983(a)(3)(D).

Fed R. Civ. P. Supp. R.

G governs pleading requirements in civil forfeiture actions.

See

U.S. v. $22, 173.00 in U.S. Currency, 716 F. Supp. 2d 245, 248
(S.D.N.Y. 2010) (“Pleading requirements in a civil forfeiture
action are governed by the Supplemental Rules. . . .

Supplemental

Rule G(2)(f) requires that the Government ‘state sufficiently
detailed facts to support a reasonable belief that the government
will be able to meet its burden of proof at trial.’

Accordingly,

the Government’s complaint must ‘assert specific facts supporting
an inference that the property is subject to forfeiture.’”).
Pursuant to Supplemental Rule G, the complaint in an in rem
forfeiture action must:
(a)

be verified;

(b) state the grounds for subject-matter jurisdiction, in
rem jurisdiction over the defendant property, and venue;
(c) describe the property with reasonable particularity;
(d) if the property is tangible, state its location when
any seizure occurred and—if different—its location when
the action is filed;
(e) identify the statute under which the forfeiture
action is brought; and
(f) state sufficiently detailed facts to support a
reasonable belief that the government will be able to
meet its burden of proof at trial.

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Fed. R. Civ. P. Supp. R. G(2)(a)-(f).
B.

Analysis

The Court has reviewed Fitch’s April 11, 2019 motion to
dismiss (Docket No. 64), and concludes that the motion must be
denied. The arguments raised by Fitch in the April 2019 motion are
essentially the same as those raised in his prior motions to
dismiss (Docket Nos. 28, 30), including that agents lacked probable
cause to search his residence, and his residence was searched as a
result of malicious prosecution.

See Docket No. 64 at 1-14.

The

Court finds now, as it did then, that Fitch’s arguments may be
defenses at trial, but do not go to the sufficiency of the
complaint.
The complaint (Docket No. 1) is verified, and describes in
detail the events leading up to the seizure of Fitch’s property,
the basis for forfeiture of the property, as well as jurisdiction
and venue.

Accordingly, the complaint satisfies the requirements

of Fed R. Civ. P. Supp. R. G.

Fitch fails to raise any argument in

his motion to dismiss identifying a deficiency in the complaint.
Accordingly, for the reasons stated in Judge Scott’s October 2016
R&R (Docket No. 33), as well as the reasoning contained in the
Court’s June 25, 2019 Decision and Order (Docket No. 70), the Court
denies Fitch’s April 2019 motion to dismiss the complaint (Docket
No. 64).

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III.Plaintiff’s Motion for Summary Judgment
A.

Standard

“Civil
judgment.”

forfeiture

proceedings

may

be

decided

on

summary

United States v. $38,148.00 United States Currency,

No. 13-CV-1162A(F), 2018 WL 2091415, at *6 (W.D.N.Y. Apr. 12,
2018), adopted, 2018 WL 2087586 (W.D.N.Y. May 4, 2018).

Federal

Rule of Civil Procedure 56(c) states that summary judgment shall be
granted “if the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).

The

court’s role in determining a motion for summary judgment is not
“to weigh the evidence and determine the truth of the matter but to
determine whether there is a genuine issue for trial.”

Id.

When

considering a motion for summary judgment, the court must draw
inferences from underlying facts “in the light most favorable to
the party opposing the motion.”

Matsushita Elec. Indus. Co. v.

Zenith Radio Corp., 475 U.S. 574, 587-88 (1986).
B.

Plaintiff’s Failure to File an Irby Notice

Pursuant to Local Rules of Civil Procedure for the Western
District of New York, “[a]ny party moving for summary judgment
against a pro se litigant shall file and serve with the motion
papers a ‘Notice to Pro Se Litigant Regarding Rule 56 Motion For

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Summary Judgment’ in the form provided by the Court.

Failure to

file and serve the form notice may result in denial of the motion,
without prejudice to proper renewal.

Where the pro se party is not

the plaintiff, the movant shall amend the form notice as necessary
to reflect that fact.”

L. R. Civ. P. 56(b); see also Graves v.

Correctional Medical Service, No. 11-CV-1005A(M), 2015 WL 1823456,
at *3 (W.D.N.Y. Apr. 22, 2015) (“The Second Circuit has required
‘that

pro

se

litigants

have

actual

notice,

provided

in

an

accessible manner, of the consequences of the pro se litigant’s
failure to comply with the requirements of Rule 56.’” (quoting Irby
v. N.Y.C. Transit Authority, 262 F.3d 412, 414 (2d Cir. 2001)),
aff’d, 667 F. App’x 18 (2d Cir. 2016).

Here, Plaintiff did not

file a Rule 56(b) notice (hereinafter, an “Irby notice”) with its
motion papers, despite the fact that Fitch is proceeding pro se.
There is no indication from L. R. Civ. P. 56(b) that an Irby notice
need not be provided to pro se claimants in forfeiture actions;
rather, the text of the rule is broad, and applies to “any party
moving for summary judgment against a pro se litigant,” and further
specifies that when the pro se party is not the plaintiff, the
movant should amend the form notice as necessary (emphasis added).
See also Ortiz-Alvear v. United States, 21 F. App’x 27, 28 (2d Cir.
2001) (citing to Irby in the context of pro se plaintiff’s claim to
certain

property

forfeited

in

an

administrative

forfeiture

proceeding, and explaining that “[t]he government concedes that it

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did not give the required Rule 56 notice to Ortiz–Alvear, who was
then proceeding pro se.

Accordingly, his claim regarding the

Raigosa package will be remanded to the district court for the
purpose of allowing the government to provide appellant with the
required Rule 56 notice and to give him the opportunity to respond
to the merits of the judicial forfeiture, setting forth specific
facts showing that there are genuine issues for trial.”).
The failure of the moving party to provide an Irby notice to
a pro se litigant does not necessarily warrant denial of the
motion.

“In the absence of such action, the district court should

promptly provide the pro se [litigant] with such required notice.”
Irby, 262 F.3d at 414.

In other words, where the moving party

fails to file the required notice, the Court, on its own accord,
may provide the notice to the non-moving, pro se party.
Here, Plaintiff’s motion was filed in April 2018.
No. 59.

Docket

At that time, the Court (Scott, M.J.) set a scheduling

order (Docket No. 61), but no Irby notice was provided to Fitch,
either by the Court or by Plaintiff.

The case was transferred to

the undersigned in June 2019, over one year after Plaintiff filed
its motion and Fitch filed a response.

Docket No. 68.

In other

words, the undersigned’s providing an Irby notice to Fitch at this
point in time will not cure Plaintiff’s oversight, because Fitch
has already filed his response to Plaintiff’s motion for summary
judgment.

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The Court notes that Fitch’s opposition to Plaintiff’s motion
for summary judgment is limited, and is not in compliance with the
Federal or Local Rules of Civil Procedure.

While Plaintiff filed

a motion with forty attached exhibits (Docket Nos. 59, 60), Fitch
filed

a

four-page,

letter-style

response,

with

no

documentation or memorandum of law (Docket No. 63).

supporting
Also, Fitch

did not submit an opposing statement of facts, as required by Local
Rule 56(a)(2).

Local Rule 56(a)(2) requires that papers opposing

a motion for summary judgment “shall” include a response to the
movant’s statement of facts, and further provides that “[e]ach
numbered paragraph in the moving party’s statement of material
facts may be deemed admitted for purposes of the motion unless it
is

specifically

controverted

by

a

correspondingly

numbered

paragraph in the opposing statement.”

The form notice to pro se

litigants

informs

that

affidavit

or

the

pro

se

affirmation,

party

statement

of

he

must

material

include
facts,

an
and

memorandum of law in response to a motion for summary judgment.
Had Fitch received the required notice, he would have known to
include these materials with his response papers.
Fitch’s failure to provide such materials in support of his
response demonstrates to the Court that he did not understand the
consequences of Plaintiff’s motion.
apparent

to

the

Court

that

the

This is not a case where it is
pro

se

party

“had

a

‘clear

understanding’ of the consequences of failing to comply with Rule

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56.”

Wright v. Esgrow, No. 10-CV-6502 CJS, 2013 WL 1826053, at *6

(W.D.N.Y. Apr. 30, 2013) (quoting Irby, 262 F.3d at 414 (“[A]
district court need not advise a pro se litigant as to the nature
of summary judgment where an opposing party has already provided
the litigant with the requisite notice . . . or where the record
otherwise makes clear that the litigant understood the nature and
consequences

of

summary

judgment.”)

(emphasis

added,

citation

omitted)).
Accordingly, the Court denies without prejudice Plaintiff’s
motion for summary judgment (Docket No. 59). Plaintiff may re-file
its motion, and provide Fitch with the required “Notice to Pro Se
Litigant Regarding Rule 56 Motion For Summary Judgment” in the form
provided by the Court, and in compliance with L. R. Civ. P. 56(b).
Fitch shall file any responding papers within 30 days following the
filing of Plaintiff’s motion.

IV.

Conclusion
For the foregoing reasons, the Court denies Fitch’s motion to

dismiss (Docket No. 64).
Further, the Court denies without prejudice Plaintiff’s motion
for summary judgment (Docket No. 59).

Plaintiff may re-file its

motion, and provide Fitch with the required “Notice to Pro Se
Litigant Regarding Rule 56 Motion For Summary Judgment” in the form
provided by the Court, and in compliance with L. R. Civ. P. 56(b).

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Fitch shall file any responding papers within 30 days following the
filing of Plaintiff’s motion.
ALL OF THE ABOVE IS SO ORDERED.
S/Michael A. Telesca
HONORABLE MICHAEL A. TELESCA
United States District Judge
DATED:

July 5, 2019
Rochester, New York

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