United States District Court, M.D. North Carolina
MEMORANDUM OPINION AND RECOMENDATION OF UNITED STATES MAGISTRATE JUDGE
JOE L. WEBSTER, Magistrate Judge.
This matter is before the Court on Defendants United States of America and the Drug Enforcement Administration's (DEA) motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(1) and (6). (Docket Entry 12.) Plaintiff has not responded to the motion, despite receiving two extensions of time, and the time to do so has expired. The motion is therefore ripe for disposition. For the following reasons, the court recommends that Defendants' motion to dismiss be granted.
On November 5, 2013, Elsa Martinez Flores ("Plaintiff"), proceeding pro se, filed a Motion to Set Aside Declaration of Forfeiture and Compel Return of Seized Property. (Docket Entry 1.) In her Motion, Plaintiff alleges that $6, 500 in United States Currency was seized from her home by DEA agents on July 28, 2011. Plaintiff alleges that the seizure occurred pursuant to the arrest of her boyfriend, Manuel Camacho Garcia, who was subsequently convicted of conspiracy to distribute narcotics in this court. (See United States v. Garcia, Case No. 1:11CR253-3, M.D. N.C., filed November 5, 2013.) Plaintiff alleges that the currency seized belonged to her, not to Garcia, and that the money should be returned to her because she did not receive notice of the administrative forfeiture proceeding. Defendants filed a timely motion to dismiss on December 31, 2014. As noted, Plaintiff has not responded to the motion.
On July 25, 2011, Manuelo Garcia was indicted in the Middle District of North Carolina for violations of 21 U.S.C. § 841 (a)(1). On July 28, 2011, Garcia was arrested by members of the DEA and Caswell County Sheriff's Office at his residence in Yanceyville, North Carolina. During the arrest and protective sweep of the residence, Garcia gave consent for a search of the residence and vehicles in the driveway. The law enforcement officers then searched the residence and discovered $6, 500 in U.S. currency, as well as a.45 caliber handgun. The DEA subsequently adopted the seizure of the currency and submitted a forfeiture report to DEA's acting Forfeiture Counsel. After reviewing the case, the DEA accepted the case for administrative forfeiture pursuant to 21 U.S.C. § 881(a), which generally authorizes forfeiture of the proceeds of illegal narcotics and funds intended to be furnished in exchange for illegal narcotics.
On August 16, 2011, the DEA sent notice of forfeiture to Manuel Camacho Garcia aka Rigoberto Martines Cruz at 477 Cherry Grove Road, Yanceyville, NC via certified mail, return receipt requested. The notice was accepted and signed for by "Elsa Martinez" (Plaintiff) on August 20, 2011. Additionally, on the same date, the DEA sent notice of forfeiture to Garcia at the Alamance County Jail by certified mail. This notice was accepted and signed for by "J. Lloyd" on August 18, 2011. The mailed notices stated that the deadline to file a claim was September 30, 2011. The DEA then published notice, pursuant to 19 U.S.C. § 1607(a) and 21 C.F.R. § 1316.75, in the Wall Street Journal for three consecutive weeks in August and September 2011. If the mailed notice was not received, the published notice stated that the deadline to file a claim was October 13, 2011. The published and mailed notices also explained the option of filing a petition for remission or mitigation of forfeiture.
On October 27, 2011, after the time limit for filing a claim had expired, and in the absence of a properly executed claim, the DEA forfeited the amount of $6, 500.00 to the United States under authority of 19 U.S.C. § 1609.
On May 2, 2012, the DEA received a claim for seized property from Eugene C. Lester, III on behalf of Elsa Martinez. On the same dare, the DEA received a second claim for seized property from Eugene C. Lester, III, on behalf of Elsa Martinez, at its remote mail facility in Quantico, Virginia. Both of these claims included a copy of the DEA Notice of Seizure dated August 16, 2011, which indicated that the last day to file a claim was September 20, 2011, and which was received and accepted by Elsa Martinez on August 20, 2011.
On May 10, 2012, the DEA rejected the claim of Elsa Martinez as untimely. The DEA sent notice of the decision to Eugene C. Lester by certified mail.
Plaintiff filed the current action on November 5, 2013, alleging that the forfeiture should be set aside because she did not receive notice of the administrative forfeiture proceeding. The DEA received the Summons and Motion on July 9, 2014. (See Docket Entry 11.)
In support of their motion, Defendants have presented material outside the pleadings. A motion to dismiss should be construed as one for summary judgment if matters outside the pleadings "are presented to and not excluded by the court." FED. R. CIV. P. 12 (d). "All parties must be given a reasonable opportunity to present all the material that is pertinent to the motion." Id. Here, the Clerk of Court mailed the standard Roseboro letter to Plaintiff on December 31, 2014, notifying her that the motion to dismiss had been filed, and that it "may or may not be supported by an affidavit." The letter informed Plaintiff of her right to file a response in opposition, "accompanied by counter affidavits, " and that she also could submit other responsive material. Plaintiff was further notified that uncontested motions are ordinarily granted. ( See Roseboro letter, Docket Entry 14.) Plaintiff received one extensions of time (Docket Entry 16), but she never filed a response to the motion.
An uncontested motion for summary judgment is not automatically granted. Campbell v. Hewitt, Coleman & Assocs., Inc., 21 F.3d 52, 55 (4th Cir. 1994). Rather, the moving party's facts are deemed uncontroverted, and the court determines whether the moving party is entitled to a judgment as a matter of law. Custer v. Pan Am. Life Ins. Co., 12 F.3d 410, 416 (4th Cir. ...