summons provides that an answer to the
complaint must be served within twenty days of the filing of the claim,
and any request for an extension of time must be made before the claim
filing deadline (Item 6). Notice of the action was published in the
Buffalo Law Journal on July 1, 8, and 15, 2002 (Item 8). On August 7,
2002, the government filed a request for entry of default as no claim or
answer had been filed, and the time to file a claim or answer had not
been extended by stipulation or court order (Item 9, ¶ 7). On or
about August 7, 2002, the attorney for the putative claimant contacted
the government seeking an extension of time in which to file. The
government opposed the request, as it was made after the deadline had
already passed (Item 11, Affidavit of Richard D. Kaufman, ¶ 8). The
government filed a motion for default judgment and order of forfeiture on
August 21, 2002 (Item 11). Thereafter, the putative claimant filed an
answer on September 13, 2002 (Item 14), and an attorney's affirmation in
response to the motion on September 23, 2002 (Item 15). In his
affirmation, attorney Joseph Terranova acknowledged that he "failed to
timely respond by filing an answer to the forfeiture complaint . . ." and
that he "assigned a higher priority to pending criminal cases" rather
than devote his full attention to this civil matter (Item 15, ¶¶ 7,
Rule C(6) of the Supplemental Rules for Certain Admiralty and Maritime
Claims provides that a claimant must file a claim/statement of interest
within 20 days of actual notice of execution of process. The Civil Asset
Forfeiture Reform Action ("CAFRA"), 18 U.S.C. § 983, et seq.,
provides that a person asserting an interest in seized property must file
a claim "not later than 30 days after the date of service of the
Government's complaint. . . ." 18 U.S.C. § 983(a)(4)(A).*fn1 The
claimant must thereafter file an answer to the complaint for forfeiture
"not later than 20 days after the date of the filing of the claim."
18 U.S.C. § 983(a)(4)(B). The complaint in this case was filed on
June 13, 2002. The putative claimant did not file a claim, and did not
file an answer until September 13, 2002.
Generally, strict compliance with the time periods of CAFRA and Rule
C(6) is required. See United States v. Amiel, 995 F.2d 367, 371 (2d Cir.
1993). The filing of a verified claim is a prerequisite to the filing of
an answer, and confers standing on a claimant to contest a forfeiture.
United States v. One Dairy Farm, 918 F.2d 310, 311 (1st Cir. 1990);
United States v. Certain Real Property and Premises Known as 218 Panther
Street, 745 F. Supp. 118, 120 (E.D.N.Y. 1990). A court, however, has the
discretion to excuse a late filing if the claimant can show "excusable
neglect" and a meritorious defense. United States v. One 1978 Piper
Navajo Aircraft, 748 F.2d 316, 318 (5th Cir. 1984). Mitigating factors
which can excuse a late filing include a good faith attempt to file on
time, detrimental reliance on government misinformation, and the
expenditure of considerable time and resources preparing for trial.
United States v. One Dairy Farm, supra, at 312.
Here, the putative claimant's attorney has admitted that he did not
timely file an answer to the forfeiture complaint (Item 15, ¶ 7).
Additionally, no verified claim was filed in order to confer standing on
the putative claimant to contest the
forfeiture. In his affirmation, Mr.
Terranova stated that he filed a claim in response to the notice of
seizure with the Drug Enforcement Agency ("DEA" ) (Item 15, ¶ 3), but
the government correctly notes that the filing of an administrative claim
with the DEA does not satisfy the verified claim obligation of Rule
C(6). See United States v. Beechcraft Queen Airplane, 789 F.2d 627, 630
(8th Cir. 1986); United States v. One 1990 Mercedes Benz 300CE, et al.,
926 F. Supp. 1, 4 (D.D.C. 1996). An attorney's inability to manage his
caseload or preoccupation with other more important matters does not
constitute excusable neglect for purposes of relieving a client of the
burdens of a final judgment. See United States v. Cirami, 535 F.2d 736,
739 (2d Cir. 1976); Klein v. Williams, 144 F.R.D. 16, 18-19 (E.D.N.Y.
1992); United States v. One 1978 BMW VIN No. 5391202, 624 F. Supp. 491,
492 (D.Mass. 1985) (court declined to create "inconvenient timing"
exception to Rule C(6)).*fn2
The putative claimant also argues that the government suffers no
prejudice by a late filing, and a default would deprive him of the
opportunity to contest the forfeiture on the merits (Item 15, ¶¶
11-12). As a result of the late filing of the answer and the opposition
to the government's motion, the litigation in this case has been
protracted to the government's detriment. United States v. One 1990
Mercedes Benz 300CE, supra, at 5. Courts have demanded strict compliance
with the time periods in cases involving real property, despite the
claimants' argument that forfeiture of real property is too drastic a
remedy for the relatively minor transgression of a late filing. See
United States v. One Dairy Farm, supra; United States v. 218 Panther
Street, supra. Here, while the result may seem harsh, the asset sought to
be forfeited is considerably less significant than real property. In the
absence of strong mitigating factors and a meritorious defense, the
putative claimant is required to comply with the filing requirements of
CAFRA and Rule C(6).
As the putative claimant failed to file a verified claim and answer
within the time period specified in CAFRA and Rule C(6) of the
Supplemental Rules, the government's motion for a default judgment and
order of forfeiture is granted.