United States District Court, N.D. New York
GARY L. SHARPE, District Judge.
Pending before the court is the government's unopposed motion to strike the counterclaim filed by claimant Thomas O'Rourke in this civil forfeiture in rem action. (Dkt. No. 71.) O'Rourke seeks the imposition of a constructive trust over the property at issue in this action, an order returning the funds to him, and an award of attorneys' fees, costs, and disbursements. (Dkt. No. 63 at 6.) The government argues that O'Rourke's counterclaim must be dismissed, because civil forfeiture actions are actions against the property, not against any claimant, so it is improper for a third-party claimant such as O'Rourke to assert a counterclaim. (Dkt. No. 71, Attach. 1 at 3-4.) In other words, no claim has been asserted against O'Rourke that would allow him to file a counterclaim. See United States v. One Lot of U.S. Currency ($68, 000), 927 F.2d 30, 34 (1st Cir. 1991); United States v. $22, 832.00 in U.S. Currency, No. 1:12 CV 01987, 2013 WL 4012712, at *4 (N.D. Ohio Aug. 6, 2013) (noting that, "because the government has not filed a complaint against the claimants, they are not in the position to file a counterclaim."); United States v. Assorted Computer Equip., No. 03-2356V, 2004 WL 784493, at *2 (W.D. Tenn. Jan. 9, 2004); United States v. $10, 000 in U.S. Funds, 863 F.Supp. 812, 816 (S.D. Ill. 1994).
For the reasons articulated in the government's brief and on authority of the cases cited therein, (Dkt. No. 71, Attach. 1 at 3-4), the government's motion is granted and O'Rourke's counterclaim, (Dkt. No. 63 ¶¶ 23-42), is dismissed from this action.
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that the government's motion to strike O'Rourke's counterclaim (Dkt. No. 71) is GRANTED; and it is further
ORDERED that O'Rourke's counterclaim (Dkt. No. 63 ¶¶ 23-42) is DISMISSED; and it is further
ORDERED that the Clerk of the Court provide a copy of this Summary ...