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United States v. Premises and Real Property with All Buildings

January 21, 2010

UNITED STATES OF AMERICA, PLAINTIFF,
v.
THE PREMISES AND REAL PROPERTY WITH ALL BUILDINGS, APPURTENANCES, AND IMPROVEMENTS, LOCATED AT 1311 FIVE MILE LINE ROAD, WEBSTER, NEW YORK, THAT IS, ALL THAT TRACT OR PARCEL OF LAND, SITUATED IN THE TOWN OF PENFIELD, COUNTY OF MONROE, AND STATE OF NEW YORK, AND MORE PARTICULARLY DESCRIBED IN A CERTAIN DEED RECORDED IN THE MONROE COUNTY CLERK, DEFENDANT.



The opinion of the court was delivered by: Charles J. Siragusa United States District Judge

DECISION and ORDER

INTRODUCTION

Siragusa, J. This case is before the Court on the motion by Terry Swann ("Swann"), a potential claimant to the defendant property, seeking reconsideration of the Court's prior memorandum and decision denying him an extension of time after the fact to file a claim. See Memorandum and Order, United States of America v. 1311 Five Mile Line Road, No. 09-CV-6047-CJS (May 11, 2009). For the reasons stated below, the motion is denied.

FACTUAL BACKGROUND

On February 2, 2009, the United States of America ("the Government") filed a verified complaint seeking forfeiture, under 18 U.S.C. §§ 2428(b)(1)(A), 2253(a)(3) and 2254, of the real property described in the caption. Pursuant to Rule G(4)(b) and Rule G(5)(a)(ii)(A) of the Supplemental Rules for Admiralty or Maritime Claims and Asset Forfeiture Actions ("Forfeiture Rules"), the Government attempted to serve likely claimant, Terry Swann through his criminal defense lawyer, Michael Tallon, Esq., by sending a Notice of Forfeiture Action to Mr. Tallon on February 2, 2009.*fn1 Mr. Tallon, who had not been retained to represent Terry Swann, his criminal defense client, in this separate civil forfeiture action, returned the Notices of Forfeiture Action to the Government with a cover letter. Mr. Tallon sent his client, Terry Swann, who was then incarcerated, a copy of his cover letter, addressed to the prosecuting attorneys, which stated, in pertinent part:

I enclose two (2) certified mailings, one addressed to "The Estate of Wayne Swann" and the other to "Terry Swann." I am returning them unopened as I believe they concern the prospective civil forfeiture action. At this point, until I am formally engaged by Mr. Swann and possibly by the estate of his late brother, I am unable to accept what I believe to be service of a Summons and Complaint. (Michael J. Tallon, Esq., letter to Assistant United States Attorneys Kathryn L. Smith and Tiffany H. Lee (Feb. 5, 2009), at 1.) A copy of the letter went to Terry Swann. (Id.; Tallon Decl. ¶ 5.)

Subsequently, on February 6, 2009, the Government sent a Notice of Forfeiture Action to Terry Swann at his address in the Monroe County Jail, which was delivered to him on February 9, 2009. The Notice of Forfeiture Action set out the following information, as required by the Rules: "(A) the date when the notice is sent; (B) a deadline for filing a claim, at least 35 days after the notice is sent; (C) that an answer or a motion under Rule 12 must be filed no later than 20 days after filing the claim; and (D) the name of the government attorney to be served with the claim and answer." Rule G(4)(b)(ii)(A)--(D).The Notice of Forfeiture Action clearly indicated that, "[a]ny person who asserts an interest in any of the defendant properties may contest the forfeiture by filing a claim in [this Court] by March 13, 2009.." (Notice of Forfeiture Action (Feb. 6, 2009), at 1 (emphasis added).).

On March 31, 2009, Swann's counsel filed a motion for an extension of time to file an answer. (Docket No. 11.) The Government opposed the application, and the Court, in a Memorandum and Order filed on May 11, 2009, denied Swann's motion. In its decision, the Court wrote that,

Terry Swann argues that he thought Mr. Tallon [his criminal defense lawyer] would be handling the forfeiture and, thus, did not take steps to timely request an extension of time, or otherwise respond to the Notice of Forfeiture Action. The Court notes that the Notice of Forfeiture Action set out the date by which a claim was due to be filed in this Court. Despite that, Terry Swann waited until after the expiration of the deadline to even raise the issue with his attorney. The Notice of Forfeiture Action set out in detail the place for filing the claim and the addresses to which to send a claim. The Court fails to understand how Terry Swann could have thought Mr. Tallon was handling the forfeiture action when, in his letter of February 5, 2009, quoted from above, a copy of which went to Mr. Swann prior to the Notice of Forfeiture Action, Mr. Tallon made it clear that at that time he was not.

Memorandum and Order, United States of America v. 1311 Five Mile Line Road, No. 09-CV-6047-CJS (May 11, 2009), at 3--4. In the application to reconsider, Swann's counsel provides his observations and conclusion that Swann has been suffering from dysthymia.

STANDARDS OF LAW

As the Fifth Circuit has recognized,

[t]here is no motion for "reconsideration" in the Federal Rules of Civil Procedure. See Hamilton Plaintiffs v. Williams Plaintiffs, 147 F.3d 367, 371 n. 10 (5th Cir.1998). However, a motion for reconsideration filed within ten days of the district court's judgment is construed as a Rule 59(e) motion that suspends the time for filing a notice of appeal. See id.

Bass v. U.S. Dept. of Agriculture, 211 F.3d 959, 962 (5th Cir. 2000). Since the Federal Rules of Civil Procedure do not expressly provide for motions for reconsideration, such a motion may be construed as a motion to alter or amend judgment under Rule 59(e) or Rule 60(b). See Osterneck v. Ernst & Whinney, 489 U.S. 169, 174 (1989). In DiLaura v. ...


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