United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
March 23, 2018, the United States' filed a Motion to
Strike Jerry C. Sims, Jr's Claim for Lack of Standing
(ECF No. 10). On April 2, 2018, Jerry Sims, proceeding
pro se, filed a Motion for Leave to File Answer
Instanter (ECF No. 13). The Court, having considered the
motions, record, applicable law, and otherwise being fully
advised, concludes that Mr. Sims' motion for leave to
file an answer should be granted, and the United States'
motion should be denied for mootness.
United States filed its Verified Complaint for Forfeiture
In Rem against $10, 990.00 in United States currency
and $9, 050.00 in United States currency on January 5, 2018.
Compl., ECF No. 1. The complaint arose allegedly from a
seizure by the Drug Enforcement Administration
(“DEA”) on September 4, 2017, conducted by
Special Agent Jarrell W. Perry during an encounter at the
Greyhound Bus Station in Albuquerque, New Mexico.
Id. ¶¶ 3, 7. During a search of the bag
and wallet of Jeffery Calvin Sims Jr., which the United
States asserts was consensual, Agent Perry found several
rubber-band wrapped bundles of United States currency.
Id. ¶ 8. A search of Asia Linesse Terry's
wallet and bag revealed two rubber-band wrapped bundles of
currency. Id. ¶ 10-11. Mr. Sims and Ms. Terry
allegedly gave conflicting accounts of the source of the
currency, who purchased their one-way tickets with cash, who
they were staying with in California, and the reason for
having bundled cash with them. Id. ¶ 7, 13.
According to the Government, Mr. Sims said he recently sold a
car, but Ms. Terry said that Mr. Sims had sold a different
vehicle than the one he had identified. Id. ¶
13. Additionally, Mr. Sims' bus ticket allegedly bore the
false name of Steven Moore and he allegedly repeatedly
asserted that his driver's license in the name of Jerry
Calvin Sims Jr. was not him. Id. ¶¶ 7, 9.
Mr. Sims also allegedly told Agent Perry he was not involved
with drugs without being asked questions about drugs.
Id. ¶ 12.
to the Government, Mr. Sims has a felony arrest for drug
trafficking on November 21, 2008, and a felony possession of
drugs on August 19, 2008. Id. ¶ 14. A trained
and certified narcotics detection canine allegedly alerted
positively for the odor of illegal controlled substances on
the currency. See Id. ¶¶ 15-16. The United
States moves for forfeiture of the currency under 21 U.S.C.
886(a)(6) in its First Claim for Relief and for forfeiture
under 18 U.S.C. § 981(a)(1)(C) in its Second Claim for
Relief. Id. ¶¶ 19-25.
February 9, 2018, Jerry C. Sims filed a Verified Claim,
subject to the penalty of perjury, claiming that he is the
sole owner of the monies and the funds were seized by the DEA
after an illegal search and seizure on September 4, 2017.
See Verified Claim 1-2, ECF No. 4. Mr. Sims also
claims that the asserted adoption of the funds by the DEA
“was not in conformity with the procedures designed to
regulate adoptions of this ilk.” Id. On March
2, 2018, Mr. Sims filed a Motion for Extension of Time to
File Answer, seeking a 14-day extension of time to file an
answer or responsive pleading under Federal Rule of Civil
Procedure 6(b). Claimant's Mot., ECF No. 5.
March 5, 2018, the Honorable Jerry H. Ritter entered an Order
Denying Claimant's Motion for Extension of Time to File
an Answer (ECF No. 6). The Court founds that Mr. Sims
provided no reason demonstrating excusable neglect for filing
the untimely motion in his request for an extension as
required by Rule 6(b)(1)(B) or for why an extension was
necessary, preventing the Court from finding good cause as
required by Rule 6(b)(1)(A). Order, ECF No. 6. The Court thus
ordered that Claimant “is precluded from filing an
Answer in this case.” Id.
the United States filed a Notice of Publication (ECF No. 7).
On March 23, 2018, the United States filed a motion to strike
Mr. Sim's claim for lack of standing (ECF No. 10). The
United States asserts that Mr. Sims lacks statutory standing
because he failed to file a timely answer to the complaint as
required by Supplemental Rule G(5)(b). United States'
Mot. to Strike 1, ECF No. 10. On April 2, 2018, Mr. Sims
filed a Motion for Leave to File Answer Instanter (ECF No.
13). In the motion, Mr. Sims states that he is currently
incarcerated in the Cuyahoga County Jail in Ohio, and
“was unable to timely respond to Plaintiff's
Complaint.” Claimant's Mot. for Leave to File
Answer, ECF No. 13. The same day, Mr. Sims filed his proposed
Answer. Claimant's Answer Instanter, ECF No. 14.
United States filed a Notice of Completion of Briefing,
noting that Mr. Sims did not file a response to its motion to
strike Mr. Sims's Claim. See Notice, ECF No. 18.
In response to Claimant's motion for leave to file an
answer, the United States argues that the Court already
denied an extension of time to file an answer, Mr. Sims
ignored the preclusion order, and he failed to specify when
its incarceration began and how he was unable to timely
respond to Plaintiff's complaint. See United
States' Resp. 1-2, ECF No. 19. In reply, Mr. Sims noted
that his incarceration makes him unable to file documents
electronically, so filing documents on time is more difficult
under his circumstances. See Claimant's Reply,
ECF No. 20.
forfeiture claimant must meet both Article III and statutory
standing requirements before he may contest a forfeiture.
United States v. $8, 221, 877.16 in U.S. Currency,
330 F.3d 141, 150 n.9 (3d Cir. 2003). To show Article III
standing, a claimant must show an interest in the property
sufficient to create a “case or controversy.”
Id. (quoting United States v. Contents of
Accounts Nos. 3034504504 & 14407143 (In re Friko
Corp.), 971 F.2d 974, 984 (3d Cir. 1992)). Statutory
standing requires compliance with certain procedural
requirements. United States v. $148, 840.00 in U.S.
Currency, 521 F.3d 1268, 1273 n.3 (10th Cir. 2008)
(citing with approval $8, 221, 877.16 in U.S.
Currency, 330 F.3d at 150 n.9).
the government sent direct notice to a known potential
claimant, the claimant must file a claim by the deadline set
forth in the direct notice, at least 35 days after the notice
is sent. See Fed. R. Civ. P. G(5)(a)(ii)(A) &
G(4)(b)(i)-(ii). “A claimant must serve and file an
answer to the complaint . . . within 21 days after filing the
claim.” Fed.R.Civ.P. G(5)(b). Supplemental Rule G(8)(c)
provides that the government, at any time before trial, may
move to strike a claim or answer for failing to comply with
Rule G(5) or because the claimant lacks standing.
Fed.R.Civ.P. G(8)(c). Strict compliance with Supplemental
Rule G(5) is generally required in the absence of special
circumstances. See United States v. Commodity Account No.
549 54930 at Saul Stone & Co., 219 F.3d 595, 598
(7th Cir. 2000); United States v. Ford 250 Pickup 1990
VIN No. 1FTHX26M1LKA69552, 980 F.2d 1242 (8th Cir. 1992)
(“Strict compliance with the rule requires both a claim
and an answer.”). A party “attempting the
untimely filing must show excusable neglect or a meritorious
defense.” Ford 250 Pickup, 980 F.2d at 1245.
Sims is proceeding pro se. The Court finds that
Claimant's motion for leave to file an answer acts as a
response to the United States' motion to strike his claim
for failing to file an Answer. The Court thus finds that
Claimant Sims has not consented to granting of the motion
under Local Rule 7.1(b).
Court initially prohibited Claimant Sims from filing an
Answer because he failed to give justification for his need
for an extension. Although belated, Claimant filed a
subsequent motion providing reasons for his request for more
time to file an answer to the complaint -- his incarceration
has made it difficult to file pleadings on time because he
does not have access to electronic filing. The Court finds
the grounds are sufficient under Rule 6(b)(1)(B) to
constitute excusable neglect. Mr. Sims also requested leave
to file his answer, so Mr. Sims did not merely ignore this
Court's prior preclusion order. Instead, Mr. Sims
provided additional grounds for his need for more time and
attempted to follow the procedural rules, showing a good
faith effort to comply with Rule G(5). He has also filed his
Answer, setting forth those allegations in the complaint that
stand admitted and will not be in issue at trial and those
that are contested, so that Mr. Sims has met the underlying
goal of the procedural rule requiring an answer. Although the
motion is not overflowing with detail, the Court recognizes
that Mr. Sims is proceeding pro se. For the
foregoing reasons, the Court will grant Claimant's Motion
for Leave to File Answer Instanter. Cf. United States v.
$9, 020.00 In U.S. Currency, 30 Fed.Appx. 855, 857-58
(10th Cir. Feb. 13, 2002) (unpublished) (“Further, the
oft-cited statement that courts may require strict compliance
with Rule C(6) does not negate the liberal construction due
pro se pleadings…. In light of appellant's pro se
status, and because appellant's petition for remission
satisfied both the requirements and underlying purposes of
Rule C(6), the district court should have construed his
petition liberally as a verified claim.”).
the Government's motion to strike was based on lack of
standing for failing to file a timely answer, and the Court
has now permitted Claimant Sims permission to file his
Answer, the Court ...