UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
March 29, 2012
UNITED STATES OF AMERICA,
JUAN CARLOS HERRERA GOMEZ,
The opinion of the court was delivered by: John G. Koeltl, District Judge:
MEMORANDUM OPINION AND ORDER
The Court has received the attached motion for summary judgment from the defendant.
On December 12, 2011, the Court ordered the Government to respond to the defendant's motion for reconsideration of the Court's November 14, 2012 Memorandum Opinion and Order. The Court specifically ordered the Government to respond by January 3, 2012, and to "respond to the defendant's contention that the administrative forfeiture was procedurally defective." The defendant asserts that the Government has not responded to the motion for reconsideration.
The defendant has moved for summary judgment "in light of the facts that the Government has refused to move or answer." The Court will construe the defendant's motion for summary judgment as a motion for a default judgment pursuant to Rule 55 of the Federal Rules of Civil Procedure. Rule 55 allows for the entry of a default judgment when a party "has failed to plead or otherwise defend." Fed. R. Civ. P. 55(a). "In general, neither the entry of default nor default judgment are appropriate based on a party's failure to file a response to a motion." Johnson v. Pugh, No. 11 Civ. 865, 2012 WL 523793, at *3 (E.D. Wis. Feb. 15, 2012).
In this case, the Government responded to the defendant's initial complaint for equitable relief pursuant to Rule 41(g) of the Federal Rules of Civil Procedure for the return of his property. However, the Government has not responded to the pending motion for reconsideration of the Court's prior Order on the complaint pursuant to Rule 41(g). The Government's failure to respond to the motion is not a proper basis for a default judgment. The defendant's motion for a default judgment is denied without prejudice.
The Government should respond to the motion for reconsideration by April 19, 2012. The Government should also explain why it failed to respond to the Court's December 12, 2011 Order. If the Government does not reespond or otherwise move to extend its time to respond, the Court may treat the defendant's factual assertions with respect to the alleged procedural defects in the administrative seizures at issue as uncontested.
The Clerk is directed to close Docket No. 215.
© 1992-2012 VersusLaw Inc.