United States of America v. THE PREMISES AND REAL PROPERTY WITH ALL BUILDINGS, APPURTENANCES, AND IMPROVEMENTS, LOCATED AT

Filing 23

ORDER granting 17 Motion for Default Judgment; denying 19 Motion for Reconsideration. Signed by Hon. Charles J. Siragusa on 1/21/10. (MWP) (Additional attachment(s) added on 1/22/2010: # 1 Main Document) (RE). Attached correct order to entry on 1/22/2010 (RE).

UNITED STATES DISTRICT COURT W E S T E R N DISTRICT OF NEW YORK
U N IT E D STATES OF AMERICA, P la in t if f , -vs T H E PREMISES AND REAL PROPERTY W IT H A L L BUILDINGS, APPURTENANCES, AND IM P R O V E M E N T S , LOCATED AT 1 3 1 1 FIVE MILE LINE ROAD, W E B S T E R , NEW Y O R K , THAT IS, ALL THAT TRACT OR PARCEL O F LAND, SITUATED IN THE TOW N OF P E N F IE L D , COUNTY OF MONROE, AND STATE O F NEW YORK, AND MORE PARTICULARLY D E S C R IB E D IN A CERTAIN DEED RECORDED IN THE MONROE COUNTY CLERK, D e fe n d a n t.

D E C IS IO N and ORDER 0 9 -C V - 6 0 4 7 -C J S

AP P E AR AN C E S F o r the United States: K a t h r yn L. Smith, A.U.S.A U n ite d States Attorney's Office 1 0 0 State Street, Room 620 R o c h e s te r, NY 14614 (5 8 5 ) 263-6760 M ic h a e l J. Tallon, Esq. M ic h a e l J. Tallon, P.C. 9 0 0 Times Square Building 4 5 Exchange Blvd. R o c h e s te r, NY 14614 (5 8 5 ) 546-1734

F o r Claimant Terry Swann:

IN T R O D U C T IO N S i r a g u s a , J. This case is before the Court on the motion by Terry Swann ("Swann"), a potential claimant to the defendant property, seeking reconsideration of the Court's prior m e m o ra n d u m and decision denying him an extension of time after the fact to file a claim. S e e Memorandum and Order, United States of America v. 1311 Five Mile Line Road, No. 0 9 - C V - 6 0 4 7 -C J S (May 11, 2009). Additionally, the matter is before the Court on the G o v e rn m e n t's motion for a default judgment with respect to the defendant property. For the re a s o n s stated below, Swann's motion for reconsideration is denied and the Government's m o tio n for default judgment is granted. F AC T U AL BACKGROUND O n February 2, 2009, the United States of America ("the Government") filed a verified c o m p la in t seeking forfeiture, under 18 U.S.C. §§ 2428(b)(1)(A), 2253(a)(3) and 2254, of the re a l property described in the caption. Pursuant to Rule G(4)(b) and Rule G(5)(a)(ii)(A) of th e Supplemental Rules for Admiralty or Maritime Claims and Asset Forfeiture Actions ("F o rf e itu re Rules"), the Government attempted to serve likely claimant, Terry Swann t h r o u g h his criminal defense lawyer, Michael Tallon, Esq., by sending a Notice of Forfeiture A c t io n to Mr. Tallon on February 2, 2009.1 Mr. Tallon, who had not been retained to re p re s e n t Terry Swann, his criminal defense client, in this separate civil forfeiture action, re tu rn e d the Notices of Forfeiture Action to the Government with a cover letter. Mr. Tallon s e n t his client, Terry Swann, who was then incarcerated, a copy of his cover letter, a d d r e s s e d to the prosecuting attorneys, which stated, in pertinent part:

The Government sent Mr. Tallon two Notices of Forfeiture Action--one for Terry Swann, his client, and one for Mr. Swann's then-deceased brother, Wayne Swann. -2-

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I enclose two (2) certified mailings, one addressed to "The Estate of Wayne Swann" and the other to "Terry Swann." I am returning them unopened as I believe they concern the prospective civil forfeiture action. At this point, until I am formally engaged by Mr. Swann and possibly by the estate of his late brother, I am unable to accept what I believe to be service of a Summons and Complaint.
(Michael J. Tallon, Esq., letter to Assistant United States Attorneys Kathryn L. Smith and T if f a n y H. Lee (Feb. 5, 2009), at 1.) A copy of the letter went to Terry Swann. (Id.; Tallon D e c l. ¶ 5.) Subsequently, on February 6, 2009, the Government sent a Notice of Forfeiture A c tio n to Terry Swann at his address in the Monroe County Jail, which was delivered to him o n February 9, 2009. The Notice of Forfeiture Action set out the following information, as re q u ire d by the Rules: "(A) the date when the notice is sent; (B) a deadline for filing a claim, a t least 35 days after the notice is sent; (C) that an answer or a motion under Rule 12 must b e filed no later than 20 days after filing the claim; and (D) the name of the government a t to rn e y to be served with the claim and answer." Rule G(4)(b)(ii)(A)­(D).The Notice of F o rf e itu re Action clearly indicated that, "[a]ny person who asserts an interest in any of the d e f e n d a n t properties may contest the forfeiture by filing a claim in [this Court] by March 13, 2 0 0 9 ... . " (Notice of Forfeiture Action (Feb. 6, 2009), at 1 (emphasis added).). O n March 31, 2009, Swann's counsel filed a motion for an extension of time to file a n answer. (Docket No. 11.) The Government opposed the application, and the Court, in a M e m o ra n d u m and Order filed on May 11, 2009, denied Swann's motion. In its decision, the C o u r t wrote that,

Terry Swann argues that he thought Mr. Tallon [his criminal defense lawyer] would be handling the forfeiture and, thus, did not take steps to timely request an extension of time, or otherwise respond to the Notice of Forfeiture Action. The Court notes that the Notice of Forfeiture Action set out the date
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by which a claim was due to be filed in this Court. Despite that, Terry Swann waited until after the expiration of the deadline to even raise the issue with his attorney. The Notice of Forfeiture Action set out in detail the place for filing the claim and the addresses to which to send a claim. The Court fails to understand how Terry Swann could have thought Mr. Tallon was handling the forfeiture action when, in his letter of February 5, 2009, quoted from above, a copy of which went to Mr. Swann prior to the Notice of Forfeiture Action, Mr. Tallon made it clear that at that time he was not.
M e m o ra n d u m and Order, United States of America v. 1311 Five Mile Line Road, No. 0 9 -C V -6 0 4 7 -C J S (May 11, 2009), at 3­4. In the application to reconsider, Swann's counsel p ro v id e s his observations and conclusion that Swann has been suffering from dysthymia. S T AN D AR D S OF LAW A s the Fifth Circuit has recognized,

[t]here is no motion for "reconsideration" in the Federal Rules of Civil Procedure. See Hamilton Plaintiffs v. Williams Plaintiffs, 147 F.3d 367, 371 n. 10 (5th Cir.1998). However, a motion for reconsideration filed within ten days of the district court's judgment is construed as a Rule 59(e) motion that suspends the time for filing a notice of appeal. See id.
B a s s v. U.S. Dept. of Agriculture, 211 F.3d 959, 962 (5th Cir. 2000). Since the Federal Rules o f Civil Procedure do not expressly provide for motions for reconsideration, such a motion m a y be construed as a motion to alter or amend judgment under Rule 59(e) or Rule 60(b). S e e Osterneck v. Ernst & Whinney, 489 U.S. 169, 174 (1989). In DiLaura v. Power Authority o f State of N.Y., 982 F.2d 73 (2d Cir. 1992), the Second Circuit explained:

As we have noted, "[t]he major grounds justifying reconsideration are `an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice.'" Virgin Atl. Airways, 956 F.2d at 1255 (quoting 18 Charles A. Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice & Procedure § 4478, at 790 (1981))....
D iL a u r a , 982 F.2d at 76. Subsequently, in Shrader v. CSX Transp., Inc., 70 F.3d 255 (2d

Cir. 1995), the Circuit advised "[t]he standard for granting such a motion is strict, and
re c o n s id e ra tio n will generally be denied unless the moving party can point to controlling

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d e c is io n s or data that the court overlooked--matters, in other words, that might reasonably b e expected to alter the conclusion reached by the court." Id. at 257. AN AL Y S I S A p p lyin g the appropriate standard of law, the Court determines that Swann has not m e t the requirements for reconsideration. Swann has not pointed to controlling decisions o r data that the court overlooked, or matters that might reasonably be expected to alter the C o u rt's prior decision. E v e n if the Court were to reconsider the application, however, the result would be the s a m e . The original issue before the Court was to determine whether Swann's motion for an e x te n s io n of time met the requirement of "excusable neglect" set out in Federal Rule of Civil P r o c e d u re 6. In Pioneer Inv. Services Co. v. Brunswick Assoc. Ltd. Partnership, 507 U.S. 3 8 0 (1993), the Supreme Court held that, "Congress plainly contemplated that the courts w o u ld be permitted, where appropriate, to accept late filings caused by inadvertence, m is ta k e , or carelessness, as well as by intervening circumstances beyond the party's c o n t ro l. " Pioneer, 507 U.S. at 388. The Court went on to state, "[b]ecause Congress has p ro v id e d no other guideposts for determining what sorts of neglect will be considered `e x c u s a b le ,' we determine that the determination is at bottom an equitable one, taking a c c o u n t of all relevant circumstances surrounding the party's omission." Id. at 395. The S u p re m e Court listed the factors to consider as: "the danger of prejudice to the debtor, the le n g th of the delay and its potential impact on judicial proceedings, the reason for the delay, in c lu d in g whether it was within the reasonable control of the movant, and whether the m o v a n t acted in good faith." Pioneer, 507 U.S. at 395. Although Pioneer involved in te rp re ta tio n of a Bankruptcy Rule, "the Court's opinion is based on the term `excusable

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n e g le c t ' and draws upon the use of that term in other federal rules." United States v. Hooper, 9 F.3d 257, 259 (2d Cir. 1993). The Government contends in its brief opposing reconsideration:

No evidence was timely submitted with Mr. Swann's original Rule 6(b) motion to support a finding that he suffered from depression in February and March of 2009, and that this condition made him incapable of timely responding to the United States' forfeiture complaint. There is no new evidence submitted with the present motion to support his claim. Mr. Swann has not pointed to a change in controlling law or an error of fact that would warrant reconsideration of the Court's prior order. Mr. Swann has merely reargued part of his initial motion. On these grounds, the motion for reconsideration should be denied.
( G o v 't Opp'n to Mot. for Reconsideration at 10­11.) Swann was before the Court on January 20, 2009, for a plea in his criminal case, 08C R -6 0 1 1 . As the minutes of that hearing show, Swann was, at the time, age 55 and welle d u c a t e d : he had received a Bachelor of Science degree. (Transcript of Proceedings, United S t a te s v. Swann, No. 08-CR-6011-CJS (Jan. 20, 2009), attached as Exhibit A to United S t a te s Opposition to Motion for Reconsideration ("Trans."), 3­4.) He reported that he was n o t seeing a doctor for any reason other than an issue with his eye. (Trans. 4.) Although he h a d been in jail for a little over a year at the time of his plea, he stated he had not been, and w a s not being, treated or hospitalized for any type of emotional or mental disorder. (Id. 4­5.) T h e plea agreement included a provision for the forfeiture of the computer seized from his re s id e n c e . (Trans. 16.) He was astute enough to recognize an error in the plea agreement w it h regard to the street address and correct it. (Id.) Nothing the Court observed during the p le a colloquy gave any indication that Swann was incapable of giving his full attention to d e ta il, or that he was suffering from a deteriorated mental state which excuses his neglect t o respond to the Government's forfeiture complaint.

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T h e re f o re , although Swann's counsel has presented observations of his client, these o b s e rv a tio n s do not persuade the Court that Swann has met the strict standard for r e c o n s id e r a t io n by pointing "to controlling decisions or data that the court overlooked...." S h ra d e r, 70 F.3d at 257. Based on the Court's denial of Swann's motion to reconsider, and the fact that there a re no other claimants to the defendant property, the Government's motion for default ju d g m e n t is granted. C O N C L U S IO N P la i n t if f 's motion (Docket No. 19), seeking reconsideration of the Court's prior d e c is io n denying his application to file a claim out of time in the forfeiture action, is denied. A d d itio n a lly, the Government's motion (Docket No. 17) for a default judgment is granted and t h e Clerk is directed to enter judgment against the defendant premises and real property w ith all buildings, appurtenances, and improvements, located at 1311 Five Mile Line Road, W e b s te r, New York, that is, all that tract or parcel of land, situated in the Town of Penfield, C o u n ty of Monroe, and State of New York, and more particularly described in a certain Deed re c o rd e d in the Monroe County Clerk's Office in Liber 08718 of Deeds at page 0078, in a c c o rd a n c e with Rule 55 (b) (2) of the Federal Rules of Civil Procedure and 18 U.S.C. § § 2428(b)(1)(A), 2253(a)(3), and 2254. IT IS SO ORDERED. D a te d : J a n u a ry 21, 2010 R o c h e s t e r , New York ENTER: /s / Charles J. Siragusa CHARLES J. SIRAGUSA U n ite d States District Judge -7-