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United States v. Real Property Known and Numbered as 1731-1735 North Fourth Street

January 8, 2007

UNITED STATES OF AMERICA, PLAINTIFF,
v.
REAL PROPERTY KNOWN AND NUMBERED AS 1731-1735 NORTH FOURTH STREET, COLUMBUS, FRANKLIN COUNTY, OHIO, DEFENDANT.



The opinion of the court was delivered by: Judge Frost

MAGISTRATE JUDGE KEMP

ORDER ADOPTING THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

This property forfeiture action is before the Court on an Objection to the Magistrate Judge's Report and Recommendation filed by All Columbus Management, Inc. The Report recommended this Court deny ACM's motion to set aside forfeiture because ACM is not a party in this action, and, therefore, does not have standing to file a motion to set aside forfeiture.*fn1 For the following reasons, the Objection to the Magistrate Judge's Report and Recommendation is overruled and the Report is adopted in its entirety.

I.

When objections are received to a Magistrate Judge's Report and Recommendation, the assigned District Judge "may accept, reject, or modify the recommended decision, receive further evidence, or recommit the matter to the magistrate with instructions." 28 U.S.C. §636(b)(1)(B). General objections are insufficient to preserve any issues for review; "[a] general objection to the entirety of the magistrate's report has the same affects as would a failure to object." Howard v. Secretary of Health and Human Services, 932 F.2d 505, 509 (6th Cir.1991). The Court reviews the report de novo.

II.

The Magistrate Judge concluded that ACM cannot assert a claim in a case in which it is not a party. The Magistrate Judge recognized that ACM failed to follow the statutory standing requirements necessary to becoming a claimant in a forfeiture action. Additionally, the Magistrate Judge noted that ACM failed to move to intervene or ask for any extension of time to file a claim on the North Fourth Street property. The court stated:

In the instant case, ACM has not moved to intervene, has not asked for any extension of time to file a claim, and has not complied with the statutory standing requirements. As noted, supra, in order to make a claim on a piece of property in a forfeiture action, a party must have both Article III and statutory standing. In this case, it is abundantly clear that ACM does not have statutory standing. ACM raises issues of whether Mr. Davidson was served properly or if lis pendens was attached in this case. Those issues are not relevant to whether ACM, as a potential claimant, satisfied Supplemental Rule for Certain Admiralty and Maritime Claims Rule C(6).

(Magistrate Judge's Report and Recommendation at p. 9.)

In response to the Magistrate Judge's conclusion, ACM argues that the Magistrate erred by concluding that ACM did not file a claim in a timely fashion. ACM contends that it never received service from the government once it acquired a legal interest in the North Fourth Street property one year after the United States commenced this civil forfeiture action. ACM claims:

Because ACM was never properly served, its duty to file a claim under the Supplemental Rules was never triggered. As Rule (C)(6)(a) makes clear, a claimant must file a verified statement (the "claim") within 30 days of either: (1) service; (2) completed publication; or (3) in the time allotted by the court. In other words, it is only after proper service that the clock starts running to file a claim. This is no different than starting the clock to file an answer from the day the complaint is properly served. Indeed, any other rule gives rise to serious due process concerns.

***

Rather, the Magistrate (implicitly) required ACM to file a claim by March 27, 2005, 30 days after service by publication was completed by the United States as required under Supplemental Rule 6(C). This is remarkable. ACM did not acquire its interest in the Property until July 15, 2005, over three months after it was apparently required to file its claim. Not only did ACM not know it had an interest in the Property at the time it was supposedly required to file a claim, it would not have standing even if it did file a claim by March 27 because it had no legal interest in the Property; a person ...


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