United States of America v. A 2007 Mercedes Benz R350

Filing 35

ORDER denying 33 Motion for Reconsideration regarding 31 Order on Motion for Summary Judgment. Signed by District Judge Terrence W. Boyle on 6/9/2016. Copy sent to pro se claimant via US Mail to 4069 Preserve Glen Court, Snellville, GA 30039. (Romine, L.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
EASTERN DIVISION
NO. 4:14-CV-109-BO
UNITED STATES OF AMERICA,
Plaintiff,
v.

A 2007 MERCEDES BENZ R350, VIN:
4JGCB65E37A038742, AND ANY AND ALL
PROCEEDS FROM THE SALE OF SAID
PROPERTY,
Defendant.

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ORDER

This matter comes before the Court on prose claimant's motion pursuant to Federal Rule
of Civil Procedure 60(b)(1). The government has replied, and the matter is ripe for ruling. For
the reasons discussed below, claimant's motion is DENIED. [DE 33].
This case is a civil action brought by the government to forfeit a vehicle used by
claimant, Walter Davis, to transport illegal controlled substances. The Court granted the
government's renewed motion for summary judgment in the matter in January. [DE 31]. The
Court had initially denied the government's motion for summary judgment for want of a lab
report regarding the substances found in the vehicle. Having subsequently received the report,
which confirmed the presence of 1.68 grams of cocaine and a pill which tested positive for
oxycodone, the Court granted the government's renewed motion for summary judgment. [DE 281, 31]. Claimant now moves for relief pursuant to Federal Rule of Civil Procedure 60(b )(1 ).
Federal Rule of Civil Procedure 60(b)( 1) permits the Court "on motion and just terms" to
relieve a party from a final judgment, order, or proceeding for "mistake, inadvertence, surprise,
or excusable neglect." Fed. R. Civ. P. 60(b)(1). However, "before a party may seek relief under
Rule 60(b), a party first must show timeliness, a meritorious defense, a lack of unfair prejudice to

the opposing party, and exceptional circumstances." Dowell v. State Farm Fire & Cas. Auto. Ins.
Co., 993 F.2d 46,48 (4th Cir. 1993) (internal quotation omitted). For a Rule 60(b)(l) motion to
be considered timely, it must be filed "no more than a year after the entry of the judgment or
order or the date of the proceeding." Fed. R. Civ. P. 60(c)(1).
Here, claimant meets the timeliness requirement, as the order at issue was entered in
January 2016. However, plaintiff fails the threshold requirement of a meritorious defense. As the
Court found in the summary judgment order, the lab report submitted with the renewed motion
for summary judgment confirmed that the vehicle contained both cocaine and oxycodone. [DE
31, 28-1]. The Court finds that claimant has not offered any evidence sufficient to call this
conclusion into question. The Court questions claimant's understanding of the lab report and
earlier order, as claimant argues multiple times that the amount of cocaine was "one-fiftieth of a
gram," which is "too miniscule to be possible evidence of possession with intent to
'manufacture, distribute, or dispense."' [DE 33-1]. The Court finds no basis for this in the record
or law and indeed finds credible evidence to the contrary. [DE 28-1]. In the summary judgment
order, the Court found that there was a substantial connection between the subject vehicle and
the criminal offense of possession and transportation of cocaine and finds no evidence in the
instant motion to warrant revision of its earlier finding. In other words, claimant has failed to
establish a meritorious defense.
The Court notes that claimant's argument that the amount of drug weight found in the
vehicle was "too small to support the seizure" also fails. Though the Court has previously noted
its concern that the instant forfeiture action may implicate the Eighth Amendment's Excessive
Fines Clause, taking the law as it is, the Court does not alter its earlier holding.

2

As claimant has failed to satisfy the Rule 60(b)(l) threshold requirements, the excusable
neglect argument necessarily fails.

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CONCLUSION
For the reasons discussed above, claimant's motion for relief pursuant to Rule 60(b) is
DENIED. [DE 33].

SO ORDERED, this

_J__ day of June, 2016.

-y;w...~~w. ~
TERRENCE W. BOYLE
UNITED STATES DISTRICT::-:

1

Moreover, the Court notes that, for purposes ofthis proceeding, claimant has been prose.
Indeed, the attorney whose alleged excusable neglect Mr. Davis now pleads has never entered a
notice of appearance in this matter. Despite this, the instant motion has with it an affidavit in
support which was purportedly written by a Mr. Aaron Frishberg, attorney, who, along with
purported local counsel Travis Payne, claims to have represented Mr. Davis in the forfeiture
matter. Though the affidavit is apparently written by Mr. Frishberg, it was signed by Walter
Davis. As no notice of appearance has ever been entered, the Court considers Mr. Davis to be
unrepresented in this matter.
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