USA v. 400 Roper Street, Morganton, North Carolina

Filing 15

ORDER denying 10 Motion to Dismiss; adopting Memorandum and Recommendations re 12 Memorandum and Recommendations. Signed by District Judge Martin Reidinger on June 18, 2010. (jhg)

IN THE DISTRICT COURT OF THE UNITED STATES F O R THE WESTERN DISTRICT OF NORTH CAROLINA ASHEVILLE DIVISION C IV IL CASE NO. 1:10cv18

U N IT E D STATES OF AMERICA,

) ) P l a i n t if f , ) ) vs . ) ) 4 0 0 ROPER STREET, MORGANTON, ) N O R TH CAROLINA, being real ) p ro p e rty described in a deed at Book ) 4 3 1 , Page 468, of the Registry of ) B u rk e County, North Carolina, ) to g e th e r with the residences, and all ) a p p u rte n a n c e s , improvements, and ) a tta c h m e n ts thereon, ) ) D e fen d a n t. ) )

ORDER

TH IS MATTER is before the Court on the Claimants' Motion to D is m is s [Doc. 10]; the Magistrate Judge's Memorandum and R e c o m m e n d a tio n [Doc. 12] regarding the disposition of that motion; and th e Claimants' Objections to the Memorandum and Recommendation [Doc. 1 3 ].

I.

PROCEDURAL BACKGROUND P u rs u a n t to 28 U.S.C. § 636(b) and the standing Orders of

D e s ig n a tio n of this Court, the Honorable Dennis L. Howell, United States M a g is tra te Judge, was designated to consider a pending motion in the a b o ve -c a p tio n e d civil action and to submit to this Court a recommendation fo r the disposition of this motion. O n May 11, 2010, the Magistrate Judge filed a Memorandum and R e c o m m e n d a tio n [Doc. 12] in this case containing proposed conclusions of la w in support of a recommendation regarding the Claimants' Motion to D is m is s [Doc. 10]. The parties were advised that any objections to the M a g is tra te Judge's Memorandum and Recommendation were to be filed in writin g within fourteen (14) days of service. [Id.]. The Claimants filed tim e ly Objections to the Memorandum and Recommendation on May 23, 2 0 1 0 . [Doc. 13].

II.

S TAN D AR D OF REVIEW The Federal Magistrate Act requires a district court to "make a de

n o v o determination of those portions of the report or specific proposed fin d in g s or recommendations to which objection is made." 28 U.S.C. §

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6 3 6 (b )(1 ). The Court is not required to review, under a de novo or any o th e r standard, the factual or legal conclusions of the magistrate judge to wh ic h no objections have been raised. Thomas v. Arn, 474 U.S. 140, 150, 1 0 6 S.Ct. 466, 472, 88 L.Ed.2d 435 (1985). Additionally, the Court need n o t conduct a de novo review where a party makes only "general and c o n c lu s o ry objections that do not direct the court to a specific error in the m a g is tra te 's proposed findings and recommendations." Orpiano v. J o h n s o n , 687 F.2d 44, 47 (4th Cir. 1982).

III.

A N A L Y S IS In their Motion to Dismiss, the Claimants argue that this civil forfeiture

a c tio n is barred by the five-year statute of limitations set forth in 19 U.S.C. § 1621. [Doc. 10 at 3-4]. The Magistrate Judge concluded that the G o ve rn m e n t's Complaint "sufficiently alleges the occurrence of predicate a c ts and the use of such property in the facilitation of such acts such that th e January 15, 2010, filing of this action is not time barred" and thus re c o m m e n d e d that the Claimants' Motion to Dismiss be denied. [Doc. 12 a t 9].

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T h e Claimants object to the Magistrate Judge's Recommendation, a rg u in g that it "misstates the law and is contradicted by the plain text of 19 U .S .C . § 1621, well settled controlling legal precedent concerning the n a tu re of drug conspiracy offenses, and several of the very cases cited in th e [Memorandum and Recommendation]." [Doc. 13 at 1]. After a careful de novo review of the Magistrate Judge's R e c o m m e n d a tio n [Doc. 38], the Court finds that the Magistrate Judge's p ro p o s e d legal conclusions are consistent with current case law and the p la in language of 19 U.S.C. § 1621. The flaw in the Claimants' argument is th a t it would allow for the possibility that the statute of limitations for the fo rfe itu re action could expire while criminal activity continued to occur on th e property. Such cannot be the proper interpretation of § 1621. Accordingly, the Court hereby ACCEPTS the Magistrate Judge's R e c o m m e n d a tio n that the Claimants' Motion to Dismiss be denied. IT IS, THEREFORE, ORDERED that the Claimants' Objections to the M e m o ra n d u m and Recommendation [Doc. 13] are OVERRULED, the M a g is tra te Judge's Recommendation [Doc. 12] is ACCEPTED, and the C la im a n ts ' Motion to Dismiss [Doc. 10] is DENIED.

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IT IS SO ORDERED.

Signed: June 18, 2010

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