USA v. Currency, et al.

• Court: District Court, D. New Hampshire
• Decided: February 13, 2001
• Docket: CV-00-378-B
• Status: Published

Opinion

USA v. Currency, et a l . CV-00-378-B 2/13/01 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

United States of America

v. Civil No. 00-378-B Opinion No. 2001DNH031 $230,963.88 in United States Currency, More or Less, et al.

MEMORANDUM AND ORDER

In this civil forfeiture action, no potential claimants to

the defendants-in-rem responded to the government's complaint

prior to the filing deadline. On November 16, 2000, I denied

Carol DeFrancesco's motion requesting permission to file a tardy

claim to the defendants-in-rem and an answer to the government's

complaint because I concluded that her attorney's failure to do

so in a timely manner was not the result of excusable neglect,

(Doc. No. 7). Accordingly, I granted the government's motion for

an entry of default. On November 28, 2000, I ordered that a

default judgment be entered against all potential claimants to

the defendants-in-rem, (Doc. No. 10). DeFrancesco now moves,

pursuant to Federal Rule of Civil Procedure 60(b)(1), to set

aside that default judgment. Because DeFrancesco demonstrates neither a good reason for her default nor the existence of a

potentially meritorious claim to the defendants-in-rem, I deny

her motion.

I. DISCUSSION1

DeFrancesco argues that the default judgment should be set

aside because: (1) I should have allowed her to file her late

claim and answer; and (2) she has a potentially meritorious claim

to the defendants-in-rem. In support of her motion, she invokes

Fed. R. Civ. P. 60(b)(1), which provides as follows:

On motion and upon such terms as are just, the court may relieve a party or a party's representative from a final judgment, order, or proceeding for . . . mistake, inadvertence, surprise, or excusable neglect.

See also Fed. R. Civ. P. 55(c) (stating that a court may set

aside a default judgment in accordance with Rule 6 0 (b)).

"Rule 60(b) is a vehicle for extraordinary relief," and,

therefore, "motions invoking the rule should be granted only

under exceptional circumstances." Torre v. Continental Ins. Co.,

15 F.3d 12, 14-15 (1st Cir. 1994) (internal quotation marks and

citation omitted). Thus, in order to prevail on her motion,

1 The relevant background facts are set forth in my Memorandum and Order dated November 16, 2000, (Doc. No. 7).

- 2 - DeFrancesco "bears the heavy burden of showing both a good reason

for the default and the existence of a meritorious defense."

United States v. Proceeds of Sale of 3,888 Pounds Atlantic Sea

Scallops, 857 F.2d 46, 48 (1st Cir. 1988); see United States v.

One Lot of $25,721.00 in Currency, 938 F.2d 1417, 1421 (1st Cir.

1991) .

DeFrancesco asserts that her attorney failed to file a

timely claim against the defendants-in-rem because she had not

yet decided whether to file a claim and, therefore, her attorney

did not have her authority to file a claim. This is the exact

same argument that she advanced, and I rejected, in her prior

motion seeking permission to file a late claim and answer.2

A Rule 60(b) (1) motion, however, "cannot serve as a

surrogate for a direct appeal." United States v. One Rural Lot,

No. 00-1554, 2001 WL 55674, *1 (1st Cir. Jan. 26, 2001) (per

curiam). Accordingly, it cannot be used to reargue the merits of

"a point already decided." Barrett v. Lombardi, Nos. 00-1834,

00-1835, 2001 WL 29313, *4 (1st Cir. Jan. 17, 2001); see Broadway

2 Although DeFrancesco offers her attorney's affidavit in support of her argument, that affidavit merely restates information contained in her prior pleadings.

- 3 - v. Norris, 193 F.3d 987, 990 (8th Cir. 1999); Cashner v. Freedom

Stores, Inc., 98 F.3d 572, 577 (10th Cir. 1996); 11 Charles Allen

Wright & Arthur R. Miller, Federal Practice and Procedure § 2858

(2d ed. 1995) (observing that "relief will not be granted under

Rule 60(b)(1) merely because a party is unhappy with the

judgment."). Because DeFrancesco reargues an argument that I

previously rejected, and offers no new facts supporting that

argument, I find that she fails to show a good reason for her

default. See Cashner, 98 F.3d at 577; 11 Wright & Miller, supra

§ 2858.

Because I conclude that DeFrancesco fails to show a good

reason for her default, I need not dwell on whether she has a

meritorious claim to the defendants-in-rem. See One Lot of

$25,721.00 in Currency, 938 F.2d at 1422. I simply note that

DeFrancesco's conclusory assertion that she has a meritorious

claim to the defendants-in-rem does not satisfy her burden under

Rule 60(b)(1). See Teamsters, Chauffeurs, Warehousemen and

Helpers Union, Local No. 59 v. Superline Transp. Co., Inc., 953

F.2d 17, 21 (1st Cir. 1992) (stating that a movant must offer

more than an "unsubstantiated boast" and that "[e]ven an

allegation that a meritorious claim exists, if the allegation is

- 4 - purely conclusory, will not suffice to satisfy the precondition

to Rule 60 (b) relief") .

II. CONCLUSION

For the foregoing reasons, I deny DeFrancesco's motion to

set aside the default judgment, (Doc. No. 11) .

SO ORDERED.

Paul Barbadoro Chief Judge February 13, 2001

cc: Jean B. Weld, Esq. Peter V. Grille, Esq.

- 5 -