United States District Court, D. Kansas
MEMORANDUM AND ORDER
JOHN
W. BROOMES UNITED STATES DISTRICT JUDGE
This
case comes before the court on Movant Troy Tompkins's
motion for return of property (Doc. 10). The motion has been
fully briefed and is ripe for decision.[1] (Doc. 12.)
Tompkins's motion is DENIED for the reasons stated
herein.
I.
Facts and Procedural History
On June
8, 2018, Plaintiff filed this action seeking forfeiture of
Defendant $64, 480 in United States Currency (the
“property”) on the basis that the property was
furnished or intended to be furnished in exchange for a
controlled substance or constitutes proceeds traceable to
violations of the Controlled Substances Act. (Doc. 1.) This
court entered a warrant of arrest in rem and order for notice
requiring the government to provide notice to all persons who
may have an interest or claim in the property. (Doc. 3.) The
order further provided that a potential claimant must file a
claim pursuant to Rule G(5) of the Supplemental Rules for
Admiralty or Maritime and Asset Forfeiture Claims. The claim
must identify the specific property claimed, identify the
claimant and state the claimant's interest in the
property, be signed by the claimant under penalty of perjury,
be filed with this court and a copy served on the government
attorney handling the case. (Id.)
On July
7, 2018, Plaintiff served a notice of this forfeiture action
on Troy Tompkins. (Doc. 6.) The notice instructed Tompkins on
how to file a claim pursuant to Rule G(5). (Doc. 12.)
Tompkins, however, has not filed a claim with this court.
Plaintiff indicated that Tompkins sent correspondence to
Plaintiff titled “Notice of Property Claim and Demand
for Specific Performance.” (Doc. 12 at 3.) On September
17, 2018, counsel for Plaintiff sent Tompkins a letter
indicating that the deadline to file a claim had passed but
agreed to allow additional time for Tompkins to file a claim
with the court pursuant to Rule G. Tompkins has not done so.
On
October 20, Tompkins filed a motion for return of property
pursuant to Fed. R. Crim. P. 41(g).
II.
Analysis
This
matter is a civil forfeiture action. Rule 41(g) is a criminal
procedural rule. Rule 41(g) is not available in a civil
forfeiture proceeding if the movant has an adequate remedy at
law. United States v. Roberts, 282 Fed.Appx. 735,
736-37 (10th Cir. 2008). Tompkins has an adequate remedy as
he can file a claim in this action and challenge the
forfeiture of the property.
As it
appears that Tompkins, who is proceeding pro se, has been
confused by this proceeding and the required filings, the
court will extend his time to file a claim in this matter.
Tompkins will be allowed 21 days from the date of this order
to file a claim. The instructions for filing a claim are as
follows:
[I]n order to avoid civil forfeiture of the property, any
person claiming an interest in, or right against, the
property must file a claim in this Court pursuant to Rule
G(5) of the Supplemental Rules for Admiralty or Maritime and
Asset Forfeiture Claims. The claim shall identify the
specific property claimed, identify the claimant and state
the claimant's interest in the property, be signed by the
claimant under penalty of perjury, and a copy served on the
government attorney handling the case…. In addition,
any person having filed such claim shall also serve and file
an answer to the complaint no later than twenty-one (21) days
after the filing of the claim.
All claims, answers and motions for or concerning the
defendant property shall be filed with the Office of the
Clerk, United States District Court, 401 N. Market, Room 204,
Wichita, Kansas 67202, with copies thereof sent to Special
Assistant United States Attorney Sean M.A. Hatfield, 301 N.
Main, Suite 1200, Wichita, Kansas 67202.
(Doc. 3 at 2.)
Should
Tompkins fail to timely file a claim, Plaintiff may move for
default judgment. Any motion for an extension of time to file
a claim must be sought prior to the deadline imposed in this
order.
III.
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