United States District Court, D. Nebraska
MEMORANDUM AND ORDER
RICHARD G. KOPF, Senior District Judge.
This civil forfeiture action was filed on February 12, 2014. The defendant property is $5, 548.00 in United States currency that police seized on July 5, 2013, while executing a search warrant at the residence of Samuel McCray in Lincoln, Nebraska.
On March 5, 2014, Samuel McCray was personally served with a copy of the complaint and was notified that he had 30 days ( i.e., until April 4, 2014) to file a verified claim and 21 days thereafter to answer the complaint. No claim or answer has been filed.
On April 21, 2014, the Assistant United States Attorney who is handling the case, Nancy Svoboda, was contacted by Brett McArthur, a Lincoln attorney, who stated that he was representing Samuel McCray in state-court criminal case which is related to this forfeiture action. According to Mr. McArthur, during this conversation he "requested that [he] be given additional time to file a claim and an answer to the complaint for forfeiture, and Ms. Svoboda agreed that [he] could have some additional time." (McArthur affidavit (filing 15-1), ¶ 2.) Mr. McArthur states that he also "explained that we felt we had a meritorious defense and [he] generally outlined what [he] believed the evidence would be." ( Id. )
Ms. Svoboda recalls the conversation differently. She states: "Mr. McArthur asked if there was anything we could do to settle/mitigate this forfeiture action. I told him to file a motion requesting authority to file a claim and an answer out of time. I told him he could not tell the Court I consent. I told him if the Court allowed the late filing, I would move to stay this civil forfeiture case, pending the resolution of the related criminal case. Mr. McArthur thanked me and said he would get that on file right away." (Svoboda affidavit (filing 18-1), ¶ 5.)
Ms Svoboda continues: "No such request had been filed as of May 5, 2014. On that date, I telephoned Mr. McArthur's office, to follow up with our last conversation. I left Mr. McArthur a voice mail message asking him to call me back. As of May 7, 2014, he had not returned my phone call." (Svoboda affidavit, ¶ 6.)
On May 8, 2014, Ms Svoboda filed a motion for entry of default and served a copy of the motion on Samuel McCray (filing 10). Default was entered by the clerk the following day (filing 12). On May 13, 2014, Ms. Svoboda filed a motion for entry of default judgment and served a copy of the motion on Samuel McCray (filing 13). Ten days later, on May 23, 2014, the court granted the motion and entered a default judgment and decree of forfeiture (filing 14).
On June 2, 2014, Mr. McArthur filed a motion on behalf of Samuel McCray to set aside the default judgment and decree of forfeiture (filing 15). Mr. McArthur states that the failure to file a verified claim and answer was "[d]ue to an oversight" on his part and was "not the fault of [his] client (McCray supporting brief, p. 1; McArthur affidavit, ¶ 3.) Mr. McArthur also states that he has "contacted the bank where the records are located and [has] attempted to ascertain the name of the records custodian, and that process [was] not completed [as of June 2, 2014]." (McArthur affidavit, ¶ 3.)
To contest the forfeiture of property named as a defendant in a civil forfeiture action in rem, a claimant must proceed "in the manner set forth in the Supplemental Rules [for Admiralty or Maritime Claims and Asset Forfeiture Actions, a subset of the Federal Rules of Civil Procedure]." 18 U.S.C. § 983(a)(4)(A). In particular, Rule G(5) of the Supplemental Rules sets out the following procedural requirements:
(5) Responsive Pleadings.
(a) Filing a Claim.
(i) A person who asserts an interest in the defendant property may contest the forfeiture by filing a claim in the court where the ...