The opinion of the court was delivered by: Gershon, United States District Judge
Plaintiff Ramon Espinal brings this action under Rule 41(e) of the Federal Rules of Criminal Procedure for return of property seized by the Drug Enforcement Agency ("DEA") at the time of his arrest on narcotics-related charges. Defendant moves to dismiss the complaint pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure or, in the alternative, Fed. R. Civ. P. 56. Plaintiff has filed no opposition. Because the court lacks subject matter jurisdiction, defendant's motion to dismiss is granted.
The following facts are uncontested.
On May 18, 1998, DEA agents arrested plaintiff and seized $1750 used in connection with a narcotics-related offense.*fn1 On July 6, 1998, the DEA sent, via certified mail, notice of seizure to plaintiff's home and then-address of incarceration. The notice advised plaintiff that procedures to administratively forfeit the seized property had begun, that he could petition the DEA for return of the property and/or contest the forfeiture in a United States District Court, and that, if he challenged the forfeiture in court, he must file a claim of ownership and a cost bond with the DEA within 20 days of the first date of publication of notice. Both certified letters were returned undeliverable.
Defendant then sent notice to the attorney representing plaintiff in his then-pending criminal proceeding. On July 13, 1998, receipt of notice was acknowledged by an employee at the attorney's office. The DEA published notice for three successive weeks in USA Today beginning July 15, 1998. Each publication indicated the last date to file a claim of ownership was August 4, 1998.
On September 9, 1999, plaintiff was remanded to custody.*fn2 However, on September 18, 1998, the DEA sent plaintiff a certified letter at a new address (the "Elm Street Address") indicating that plaintiff would be allowed an additional 20 days to respond to the notice. Receipt of this letter was acknowledged on behalf of plaintiff by an individual present at the address.
On October 29, 1998, the DEA administratively forfeited the $1750 under 19 U.S.C. § 1609 because no claim of ownership had been filed.
On April 18, 2006, plaintiff filed the instant complaint, alleging he "was never notified of any forfeiture action by the government and was never given any receipt by the Officers that removed the personal property of Petitioner." Therefore, he claims, the government must return the seized property. Defendant's answer, in addition to denying the allegations, identifies two defenses: lack of subject matter jurisdiction because the forfeiture was administrative, and expiration of the appropriate statute of limitations. In his "reply" to the answer, plaintiff acknowledges that, were there a proper administrative forfeiture, this court would lack jurisdiction. He argues, however, that the administrative forfeiture was procedurally deficient and that the statute of limitations was tolled.
Defendant moved to dismiss on April 17, 2007, on the same grounds identified in its answer.
Responding to Espinal's pleadings, defendant asserts that Espinal was not denied due process, nor was the administrative forfeiture otherwise procedurally deficient. Despite the court's warning that failure to respond would result in the defendant's motion being considered unopposed, see docket entry #19, Espinal has not filed an opposition.