Order — United States v. One 32' Solid Powerboat Vessel (S.D. Fla., Dkt. 12)

Summary

An Order in United States of America v. One 32' Solid Powerboat Vessel and Inventory, Case No. 09-21536-CV-HOEVELER, in the U.S. District Court for the Southern District of Florida, entered on the docket September 16, 2009 (Doc. 12). The Court denies, without prejudice, the government's motion to strike Alvaro Morales's July 31, 2009 Verified Claim and Answer. It states that the claim was not signed by the claimant under penalty of perjury as Rule G(5) requires but was instead signed and verified by an attorney. With some reluctance, the Court allows Mr. Morales to file an amended claim within seven (7) calendar days, and states that failure to do so will result in granting the motion to strike without further notice.

Summary drafted by a model from the document's text below and checked by script against that text before publication. It is a navigation aid, not a reading of what the document proves. Where AI is used

Full text

Text recognized from a scanned document; may contain errors.

‘Case 1:09-cv-21536-WMH Document 12 Entered on FLSD Docket 09/16/2009 Page 1 of 3

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 09-21536-CV-HOEVELER

UNITED STATES OF AMERICA,

Plaintiff,

ONE 32' SOLID POWERBOAT VESSEL
REGISTERED AS FL 6055 MR
AND INVENTORY

Defendant.

ORDER

BEFORE the Court is the government’s motion to strike Alvaro

Morales’s July 31, 2009 Verified Claim and Answer. The motion was
filed August 5, 2009 and Mr. Morales has not responded. The motion
is DENIED, without prejudice.

I.

The Supplemental Rules for Admiralty or Maritime Claims and
Asset Forfeiture Actions provide that a claim may be stricken for
failing to comply with the procedural requirements of Rule G(5),
the rule requiring the filing of an answer. See Rule G(8) (c) (i) (A).
The government correctly points out that Mr. Morales’s claim was
not “signed by the claimant under penalty of perjury,” as required

by Rule G(5) (a) (i) (C), but was instead Signed and verified by Mr.

Morales’s attorney.
‘Case 1:09-cv-21536-WMH Document 12 Entered on FLSD Docket 09/16/2009 Page 2 of 3 |

Il.
The law in this area is well established. A district court
“may require claimants in forfeiture proceedings to comply strictly
with the [Rule G(5)] requirements in presenting claims to the

court.” United States v. $125,938.62, 370 F.3d 1325, 1328 (11th

Cir. 2004) (internal quotations and citations omitted). Federal
courts in similar circumstances have routinely stricken claims that
do not strictly comply with the verification requirement in Rule

G(5) (a) (i) (C). See United States v. One Parcel of Real Property

Located at 444 Essie Morris Rd, Brownsville Community, 2008 WL

5157878, *1 (M.D. Ala. 2008) (granting motion to strike claim that

was not signed by claimant under penalty of perjury); United States

v. $11,000.00 in U.S. Funds, 2009 WL 198013, *2 (M.D. Ga. 2009)

(defaulting claimant whose claim was unsigned and late). It is not
a mere technical requirement, courts have observed, because it
requires the claimant to place himself at “risk for perjury for

false claims.” United States v. 16 Parcels of Real Property, 320

F. Supp. 2d 1307, 1313 (8.D. Fla. 2003), citing United States v.

Commodity Account No. 549 54930, 219 F.3d 595, 597 (7th Cir. 2000).

However, the Eleventh Circuit has also noted that a district
court “may exercise its discretion by extending the time for the

filing of a verified claim” see United States v. $125,938.62, 370

F.3d at 1329, and there is some precedent in this district for

allowing a claimant to correct or amend a defective submission.
“Case 1:09-cv-21536-WMH Document 12 Entered on FLSD Docket 09/16/2009 Page 3 of 3

See, e.g., United States v. $347,542.00 in U.S. Currency, 2001 WL

335828, *2 (S.D. Fla. 2001) (accepting late claim where claimant
“promptly corrected [the] deficiency. . . once the government
objected to the form of his original unsworn claim filed through
his attorney.”). Oddly, Mr. Morales did not attempt to correct the
error even after it was raised by the government’s motion to
dismiss. With some reluctance, the Court will nevertheless allow
Mr. Morales to file an amended claim that complies with the
requirements of the Supplemental Rules within seven (7) calendar
days from the date of this order. Failure to do so will result in
granting the government’s motion to strike without further notice.

DONE AND ORDERED in Miami, Florida, September /L, 2009.

WILLIAM M. HOEVELER
SENIOR UNITED STATES DISTRICT JUDGE


File and source

File

12.pdf

Size

120,972 bytes

SHA-256

dc238ba0dbc1508a3da3285cde95f68657b7980c4777d59c8a7f9baf3727b967

Our copy

12.pdf

Original

No public link identified.