E-Alert Case Updates

The Client is not Punished for his Attorney’s “Excusable Neglect”

U.S. v. $12,914.00
Case No.: ELH-11-01912 (D. Md. December 2, 2011)
by Gregory L. Arbogast, Associate
Semmes, Bowen & Semmes (www.semmes.com)

The attorney in this case failed to comply with the strict time limit of filing an Answer in a forfeiture proceeding, but the attorney fell on his sword, or at least the penknife, asking the Court for mercy, and his client was forgiven. Ordinarily, the Rules for Admiralty and Maritime Claims and Asset Forfeiture Actions (“Rules”) are to be strictly construed. In this case, however, where the attorney missed a deadline, through no fault of the client, the Court permitted a tardy filing.

U.S. v. $12,914.00 is an asset forfeiture case in which the Government seized $12,914.00 in funds in accordance with the Controlled Dangerous Substances Act. After the seizure, Jackie Weatherly (“Claimant”), by and through her attorney, filed a verified claim asserting an ownership interest in the funds. The Government filed a Motion to Strike the Claim and asserted that the Claimant failed to file an Answer within 21 days, as required by the Rules.

In response to the Government’s motion, Claimant filed an Answer. The Government again filed a Motion to Strike because Claimant’s Answer was filed outside of the 21 days permitted by the Rules. Claimant’s attorney opposed the second Motion to Strike and explained that he drafted the Answer, but misplaced it in his office. He thought that the Answer was filed. As soon as he realized the Answer was not filed-which occurred when he received the Government’s Motion to Strike- he filed the Answer. Claimant’s attorney asked the Court not to punish his client for his own mistake.

The Court analyzed whether it should permit Claimant to file an Answer outside of the 21-day window permitted by the Rules. The Court noted that the Rules are generally strictly enforced in forfeiture proceedings. Judge Hollander, however, also conceded that the substantively important filing is the verified claim, not the Answer. The verified claim is a sworn statement asserting an ownership interest in the forfeited property, while the Answer is merely a denial of the allegations and an assertion of defenses. Therefore, Judge Hollander found that Claimant’s mistake was one of procedure, not of substance.

The Court next considered whether the attorney’s mistake was “excusable neglect,” such that she should make an exception to the Rules and permit the tardy filing. In making this assessment, Judge Hollander found that the Government did not face a “hint” of prejudice. The mistake did not unduly delay the proceedings or place the Government at a disadvantage. Therefore, Judge Hollander found the attorney’s mistake to be “excusable neglect,” and she permitted Claimant to file the Answer after the deadline to do so.