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United States v. $297

United States District Court, E.D. North Carolina, Eastern Division

May 8, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
$297, 638.00 IN U.S. CURRENCY, Defendant.

          ORDER

          JAMES C. DEVER III Chief United States District Judge

         On October 4, 2016, the United States of America filed this civil action in rem seeking the forfeiture of $297, 683.00 in U.S. currency under 18 U.S.C. § 981(a)(1)(C) [D.E. 1]. On December 11, 2017, the United States moved to amend the pleadings to add a claim for forfeiture under 18 U.S.C. § 1955(d) [D.E. 16], moved for summary judgment [D.E. 17], and filed a memorandum in support [D.E. 18]. On December 29, 2017, claimant Charles Smith ("Smith" or "Claimant") cross-moved for summary judgment [D.E. 23] and filed a memorandum in support [D.E. 24]. Thereafter, both parties responded and replied. As explained below, the court grants the United States's motion to amend the pleadings and denies the motions for summary judgment.

         I.

         In June 2015, law enforcement authorities received numerous complaints that Smith was operating an illegal gambling business at his residence in Trenton, North Carolina. See [D.E. 20-1] 8. Undercover agents visited Smith's residence on numerous occasions and found approximately 40 video gaming machines ("VGMs") and individuals playing the VGMs. See Id. at 8-9. On December 22, 2015, Special Agent Greg Murphy obtained a search warrant to search Smith's residence and to seize any slot machines and related documents or currency. See Id. at 11-12. During the search, agents seized $297, 638.00 in U.S. currency, 40 VGMs, and 1 ATM machine. See Id. at 13. The $297, 638.00 in U.S. currency is the subject of this dispute and was found in a plastic pickle barrel in Smith's backyard. See id.

         II.

         A party generally may amend its complaint once as a matter of course. Fed.R.Civ.P. 15(a)(1). Further amendments are allowed "only with the opposing party's written consent or the court's leave, " although "[t]he court should freely give leave whenjustice so requires." Id. 15(a)(2). Leave should not be granted when the amendment "would be prejudicial to the opposing party, there has been bad faith on the part of the moving party, or the amendment would be futile." Johnson v. Oroweat Foods Co., 785 F.2d 503.509 (4th Cir. 1986): see Newport News Holdings Corp. v. Virtual City Vision. Inc., 650 F.3d 423, 439 (4th Cir. 2011). Once a district court has issued a scheduling order, however, the scheduling order "may be modified only for good cause." Fed.R.Civ.P. 16(b)(4).

         "[A]fter the deadlines provided by a scheduling order have passed, the good cause standard must be satisfied to justify leave to amend the pleadings." Nourison Rug Corp. v. Parvizian, 535 F.3d 295, 298 (4th Cir. 2008); see Hexion Specialty Chems., Inc. v. Oak-Bark Corp., No. 7:09-CV-105-D, 2011 WL 4527382, at *8 (E.D. N.C. Sept. 28, 2011) (unpublished); Farrar & Farrar Dairy. Inc. v. Miller-St. Nazianz. Inc., No. 5:06-CV-160-D, 2011 WL 1262159, at *l-2 (E.D. N.C. Mar. 31, 2011) (unpublished), affd. 477 Fed.Appx. 981 (4th Cir. 2012) (per curiam) (unpublished). "If the party fails to establish 'good cause' under Rule 16, a trial court may deny the motion to amend and need not conduct the inquiry under Rule 15." Hexion Specialty Chems., Inc., 2011 WL 4527382, at *8. Federal Rule of Civil Procedure 16's "good cause" standard turns on "the timeliness of the amendment and the reasons for its tardy submission; the primary consideration is the diligence of the moving party." Montgomery v. Anne Arundel Cty., 182 Fed.Appx. 156, 162 (4th Cir. 2006) (per curiam) (unpublished): see Nourison Rug Corp., 535 F.3d at 298; Hexion Specialty Chems., Inc. 2011 WL 4527382, at *8; Farrar & Farrar Dairy. Inc., 2011 WL 1262159, at *2. Establishing good cause requires the moving party to show that the party could not reasonably have met the deadline despite the party's diligence. See, e, g,, Cook v. Howard, 484 Fed.Appx. 805, 815 (4th Cir. 2012) (per curiam) (unpublished); United States v. Godwin, 247 F.R.D. 503, 506 (E.D. N.C. 2007).

         The United States originally sought forfeiture under 18 U.S.C. § 981 (a)(1)(C) believing that the currency was derived from proceeds traceable to a violation of 18 U.S.C. § 1955, a "specified unlawful activity." See [D, E. 18] 1-2. During discovery, Smith contended that the currency came from the sale of his tire business to Charlie Gray. See [D.E. 20-2] 5. Smith stated that

Gray paid $2, 000 down, then $2000/month for 10 years, then a final payment of $60, 000, for a total sale price of $300, 000 for the business. [Smith] deposited the payments he received in his BB&T account and then withdrew the total amount in May 2014 in the form of cashier checks, which he then cashed and stored the cash in the barrel from which it was seized.

Id. At the time of Smith's withdrawal, the BB&T account contained $215, 844.14. See p.E. 20-3] 22. On October 26, 2017, the United States deposed Smith and learned additional information concerning the currency. Specifically, Smith admitted that he earned approximately $81, 793.85 from the VGMs. See Id. at 46-48. Moreover, Smith admitted that he stored the gambling proceeds with the money withdrawn from his BB&T account. See id. at 74-75. The United States moves to amend the pleadings to include a claim that the $297, 638.00 in currency is forfeitable under 18 § U.S.C. 1955(d) because it was "used in" the illegal gambling business. See [D.E. 18] 16; 18 U.S.C. 1955(d).

         As for Rule 16(b), the United States has demonstrated "good cause" for the amendment. The United States acted diligently and could not have discovered the extent to which Smith commingled his funds without Smith's sworn deposition testimony. No. other party involved in the case knew that Smith had $297, 638.00 in the pickle barrel or that he withdrew money from the barrel to make pay-outs to customers. See [D.E. 19] 7. There also is no reason to believe the United States should have known this information before deposing Smith. See, e.g., Franklin Livestock. Inc. v. Boehringer Ingelheim Vetmedica. Inc., No. 5:15-CV-00063-BO, 2016 WL 7613690, at *2(E.D. N.C. Sept. 23, 2016) (unpublished). Moreover, the United States timely moved for leave to amend after discovering this information. Thus, the United States has shown "good cause." See, e.g., Carolina Coupon Clearing. Inc. v. Cardinal Health Managed Care Servs, LLC. No. 1:16CV412, 2017 WL 5634903, at *2 (M.D. N.C. June 9, 2017) (unpublished); Baverische Landesbank v. Aladdin Capital Mgmt. LLC, 289 F.R.D. 401.404 (S.D.N.Y. 2013); Farrar & Farrar Dairy. Inc. v. Miller-St. Nazianz. Inc., No. 5:06-CV-160-D, 2007 WL 4118519, at *6 (E.D. N.C. Nov. 16, 2007) (unpublished); Burton v. United States, 199 F.R.D. 194, 197-98 (S.D. W.Va. 2001). As for Rule 15(a)(2), Smith would not be prejudiced by the amendment because "[t]he relevant facts alleged remain substantially the same." Green v. Baltimore City Police Dep't. No. WMN-10-3216, 2011 WL 335868, at *1 (D. Md. Jan. 31, 2011) (unpublished). Furthermore, the United States did not act in bad faith and the amendment would not be futile. Accordingly, the court grants the motion to amend.

         III.

         This court reviews the parties' cross-motions for summary judgment under the familiar standard of Rule 56 of the Federal Rules of Civil Procedure. See, e.g.. Fed.R.Civ.P. 56; Scott v. Harris, 550 U.S. 372, 378 (2007); Celotex Corp. v. Catrett, 477 U.S. 317, 325-26 (1986); Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 247-55 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,475 U.S. 574, 585-87 (1986). Summary judgment is appropriate "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); see Anderson, 477 U.S. at 247-48. The party seeking summary judgment must demonstrate an absence of a genuine issue of material fact. See Celotex Corp., 477 U.S. at 325. Once the moving party has met its burden, the nonmoving party then must demonstrate that there exists a genuine issue of material fact for trial. See Matsushita, 475 U.S. at 587. "[T]here is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Anderson, 477 U.S. at 249. Conjectural arguments will not suffice. See Id. at 249-52; Beale v. Hardy, 769 F.2d 213, 214 (4th Cir. 1985) ("The nonmoving party... cannot create a genuine issue of material fact through mere speculation or the building of one inference upon another."). ...


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