UNITED STATES OF AMERICA v. $2,000.00 In United Statres Currency

Filing 6

MEMORANDUM OPINION AND ORDER GRANTING GOVERNMENT'S MOTION FOR SUMMARY JUDGMENT AND FORFEITURE JUDGMENT: Granting 5 Motion for Summary Judgment; Defendant, $2,000 is forfeited to the United States; U. S. Marshal directed to dispose of de fendant property in accordance with the law; and Civil Action is Dismissed and Stricken from active docket of this Court. Clerk direced to enter judgment purusant to FRCP 58. Signed by Senior Judge Frederick P. Stamp, Jr on 2/21/14. (copy to USM)(soa)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
UNITED STATES OF AMERICA,
Plaintiff,
v.

Civil Action No. 5:13CV153
(STAMP)

$2,000 IN UNITED STATES CURRENCY,
in lieu of real property located in
the Meade District, Wick, Tyler County,
West Virginia, including (1) Parcel 2
and 2.001 recorded in Deed Book 317
at page 241,
Defendant.
MEMORANDUM OPINION AND ORDER
GRANTING GOVERNMENT’S MOTION FOR SUMMARY JUDGMENT
AND FORFEITURE JUDGMENT
I.

Background

On November 4, 2013, the United States filed a complaint for
forfeiture against the defendant property, $2,000 in United States
currency, which is owned by Phillip James Hamilton (“Hamilton”).
The complaint alleges that the defendant property is subject to
forfeiture because it was used to commit, or to facilitate the
commission

of,

a

violation

of

the

Controlled

Substances

Act

punishable by more than one year of imprisonment, or constituted,
or was derived from, proceeds obtained directly or indirectly as a
result of such offense.

The complaint also sets forth that the

government will be able to meet its burden of proof at trial
because on December 5, 2012, Hamilton entered a pre-complaint

settlement agreement1 wherein he agreed to the filing of this civil
action by the United States to settle the forfeiture of the
defendant property in lieu of the real property located in the
Meade District, Wick, Tyler County, West Virginia, including (1)
Parcel 2 and 2.001 recorded in Deed Book 317 at page 241 because
the real property was used or intended to be used to commit or to
facilitate a Controlled Substances Act violation, or constituted,
or was derived from, proceeds obtained directly or indirectly as a
result of such offense.
complaint

that

As such, the government contends in its

Hamilton

has

agreed

and

stipulated

to

the

forfeiture.
On January 14, 2014, the United States filed a declaration of
publication, in which it states that notice of civil forfeiture was
posted on an official government internet site (www.forfeiture.gov)
for at least thirty (30) consecutive days, beginning on November 7,
2013,

as

required

by

Rule

G(4)(a)(iii)

and

(iv)(C)

of

the

Supplemental Rules for Admiralty or Maritime Claims and Asset
Forfeiture Actions.
On January 22, 2014, the United States filed a motion for
summary judgment.

In support of its motion for summary judgment,

the government states that the deadline to file a verified claim by

1

The pre-complaint settlement agreement was executed as a
special condition of Hamilton’s pre-trial diversion with the United
States in the corresponding criminal case in which Hamilton was
named as a defendant, Criminal Action No. 5:11CR60-03.
2

any person who was not directly notified of the filing of the
forfeiture action was January 6, 2014, and no such claim was filed.
See Rule G(5)(a)(ii)(B) of the Supplemental Admiralty and Maritime
Claims and Asset Forfeiture Actions (stating that a person who was
not sent direct notice of forfeiture must file a claim no later
than sixty (60) days after the first day of publication on an
official internet government forfeiture site).

According to the

government, the filing of new claims in this case is now time
barred.

The government avers that the failure of anyone to file a

verified claim precludes statutory standing to object to the
forfeiture of the defendant property and predicates the entry of a
default judgment.

Accordingly, the United States contends that it

is entitled to a summary judgment ordering forfeiture of the
defendant property.

No response was filed to the government’s

motion for summary judgment.
II.
Summary

judgment

Discussion

is

appropriate

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.”

Fed. R. Civ. P. 56(c).

The

party seeking summary judgment bears the initial burden of showing
the absence of any genuine issues of material fact.
Corp. v. Catrett, 477 U.S. 317, 322–23 (1986).

3

See Celotex

“The burden then

shifts to the nonmoving party to come forward with facts sufficient
to create a triable issue of fact.”

Temkin v. Frederick County

Comm’rs, 945 F.2d 716, 718 (4th Cir. 1991) (citing Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986)).
In Celotex, the Court stated that “the plain language of Rule
56(c) mandates the entry of summary judgment, after adequate time
for discovery and upon motion, against a party who fails to make a
showing

sufficient

to

establish

the

existence

of

an

element

essential to that party’s case, and on which that party will bear
the burden of proof at trial.”

Celotex, 477 U.S. at 322.

In

reviewing the supported underlying facts, all inferences must be
viewed in the light most favorable to the party opposing the
motion. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986).
In this case, Hamilton, who is represented by counsel, failed
to

respond

to

the

government’s

motion

for

summary

judgment.

However, Hamilton’s failure to file a response does not relieve the
government from the burden imposed upon the moving party.

See

Custer v. Pan Am. Life Ins. Co., 12 F.3d 410 (4th Cir.1993).

The

court in Custer held that while “the failure to respond to a
summary

judgment

motion

may

leave

uncontroverted

those

facts

established by the motion, the moving party must still show the
uncontroverted facts entitle the party to ‘a judgment as a matter
of law.’”

Id. (quoting Fed. R. Civ. P. 56(c)).

4

This Court finds that there is no genuine dispute concerning
the material facts alleged in the government’s motion for summary
judgment.

See Celotex, 477 U.S. at 322-23.

The government has

shown that Hamilton has foregone his interest in the property by
agreement.

Further, the government has shown that it has complied

with the requirements of forfeiture under federal law. As Hamilton
was represented by counsel, and counsel was noticed as to the
government’s summary judgment, this Court finds that Hamilton had
an opportunity to object to the government’s motion and to the
forfeiture.

Thus, the uncontroverted facts entitle the government

to a judgment as a matter of law.

Accordingly, the government’s

motion for summary judgment is GRANTED.
III.

Conclusion

Based on the above, the government’s motion for summary
judgment is GRANTED.

The defendant, $2,000.00 in United States

Currency in lieu of real property located in the Meade District,
Wick, Tyler County, West Virginia, including (1) Parcel 2 and 2.001
recorded in Deed Book 317 at page 241, is ORDERED forfeited to the
United States.

Further, the United States Marshals Service is

DIRECTED to dispose of the defendant property in accordance with
the law.

In addition, it is ORDERED that this civil action be

DISMISSED and STRICKEN from the active docket of this Court.
IT IS SO ORDERED.

5

The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to counsel of record herein. Pursuant to Federal
Rule of Civil Procedure 58, the Clerk is DIRECTED to enter judgment
on this matter.
DATED:

February 21, 2014

/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE

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