United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER GRANTING SUMMARY
MATTER comes before the Court on the United States'
Second Motion for Summary Judgment (Doc. 71), filed
April 10, 2018. Pursuant to 28 U.S.C. § 636(c) and
Fed.R.Civ.P. 73(b), the parties have consented to me serving
as the presiding judge and entering final judgment. Doc.
59. Having considered the parties' arguments,
exhibits and all relevant authority, the Court will grant the
United States' Second Motion for Summary Judgment.
forfeiture in rem case involves a dispute over
whether seized items are drug paraphernalia or fall under the
tobacco exception. On July 12, 2016, agents from the Drug
Enforcement Administration (“DEA”), Eddy County
Sheriff's Office, and the Lea County Drug Task Force
executed a federal search warrant at LookingGlass Gifts &
Novelties, LLC (“LookingGlass”) in Artesia, New
Mexico. Undisputed Material Facts 2, 3 (“UMF 2,
3”). Agents seized a large number of assorted smoking
instruments, scales, grinders, containers with hide
compartments, and roach clips. UMF 8; see also
Appendix 1 (attached). Garlan Plumlee (“Plumlee”)
is the owner and operator of the LookingGlass establishment.
United States then filed this Complaint for Forfeiture in
rem on November 20, 2016 against Defendant Assorted Drug
Paraphernalia. Doc. 1. Defendant Assorted Drug
Paraphernalia refers to all items seized from LookingGlass on
July 12, 2016, except four assorted smoking instruments that
the Court dismissed following an unopposed motion. Docs.
18, 21; see also UMF 17. Plumlee and LookingGlass
(“Claimants”) filed a verified claim and
statement of interest to the property (Doc. 15). The
Court previously granted partial default judgment as to any
other unknown claimants (Docs. 81, 82).
some discovery (see Docs. 19, 20, 23), the United
States filed its first Motion for Summary Judgment on August
4, 2017 (Doc. 25). In response, Claimants filed two
declarations pursuant to Federal Rule of Civil Procedure
56(d), requesting additional time for discovery before
responding to the motion. Docs. 27, 31. The
Honorable Carmen Garza granted Claimants' request
(Doc. 68), and, for the sake of judicial efficiency,
the Court denied the pending Motion for Summary Judgment
without prejudice, allowing the United States to refile its
motion after completing Rule 56(d) discovery (Doc.
United States filed its Second Motion for Summary Judgment on
April 10, 2017. Doc. 71. As part of the motion, the
United States included affidavits from its experts, Joseph
Gelinas (Doc. 71-1), Thomas D. Novicki (Doc.
71-3), and Matthew C. Monte (Doc. 71-4). In
Claimants' response to the Second Motion for Summary
Judgment, Claimants included an affidavit from their expert,
Wes Golden (Doc. 72). The parties then filed
cross-motions to strike the submitted affidavits. Docs.
73, 89. After review, the Court denied Claimants'
Motion to strike the affidavits of Joseph Gelinas, Thomas D.
Novicki, and Matthew C. Monte. Doc. 94. However, the
Court granted the United States' Motion and struck Wes
Golden's affidavit because Claimants did not disclose
their expert in a timely manner. Id.
SUMMARY JUDGMENT STANDARD
to Federal Rule of Civil Procedure 56, “[t]he court
shall grant summary judgment if the movant shows that there
is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). “The movant bears the initial
burden of making a prima facie demonstration of the absence
of a genuine issue of material fact and entitlement to
judgment as a matter of law.” Adler v. Wal-Mart
Stores, Inc., 144 F.3d 664, 670-71 (10th Cir. 1998). The
burden then shifts “to the nonmoving party to show that
there is a genuine issue of material fact.” Bacchus
Indus., Inc., v. Arvin Indus., Inc., 939 F.2d 887, 891
(10th Cir. 1991). Both the movant and the party opposing
summary judgment are obligated to “cit[e] to particular
parts of materials in the record” to support their
factual positions. Fed.R.Civ.P. 56(c)(1)(A). In this
district, “[a]ll material facts set forth in the
Memorandum will be deemed undisputed unless specifically
controverted.” D.N.M.LR-Civ. 56.1(b).
“genuine” dispute exists where the evidence is
such that a reasonable jury could resolve the issue either
way. See Adler, 144 F.3d at 670 (citing Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A
mere scintilla of evidence in the non-movant's favor is
not sufficient. Anderson, 477 U.S. at 252.
“When applying this standard, the Court examines the
factual record and reasonable inferences therefrom in the
light most favorable to the party opposing summary
judgment.” Hartwell v. Sw. Cheese Co., L.L.C.,
No. CV 15-1103 JAP/GJF, 2017 WL 944125, at *2 (D.N.M. Jan.
23, 2017). “Summary judgment is not ‘a disfavored
procedural shortcut but rather [it is] an integral part of
the Federal Rules as a whole, which are designed to secure
the just, speedy, and inexpensive determination of every
action.'” Garcia v. Vilsack, 628 F.Supp.2d
1306, 1308-09 (D.N.M. 2009) (quoting Celotex Corp. v.
Catrett, 477 U.S. 317, 327 (1986)).
assert that the Government's burden is to show probable
cause that the property subject to forfeiture was involved in
criminal activity. Doc. 72 at 4 (citing United
States v. $39, 000 in Canadian Currency, 801 F.2d 1210,
1216 (10th Cir. 1986)). However,
[t]he Civil Asset Forfeiture Reform Act of 2000 change[d] the
government's initial burden of proof. Pursuant to 18
U.S.C. § 983(c)(1), the “burden of proof is on the
Government to establish, by a preponderance of the evidence,
that the property is subject to forfeiture.”
United States v. Wagoner Cty. Real Estate, 278 F.3d
1091, 1097 n.5 (10th Cir. 2002) (quoting 18 U.S.C. §
maintains that the seized items constitute drug paraphernalia
subject to forfeiture pursuant to 21 U.S.C. § 881(a)(10)
which provides that “[a]ny drug paraphernalia (as
defined in 21 U.S.C. § 863)” is “subject to
forfeiture to the United States and no property right shall