United States District Court, S.D. Alabama, Southern Division
ORDER ON MOTION TO RECONSIDER
V. S. GRANADE SENIOR UNITED STATES DISTRICT JUDGE
matter is before the Court on a motion for reconsideration
or, alternatively, a motion to stay the criminal forfeiture
proceeding or a preliminary injunction filed by third-party
Petitioner Loan T. Nguyen (“Nguyen”) (Doc. 118)
and her brief in support (Doc. 118-1). The Government filed a
response in opposition (Doc. 121), to which Nguyen replied
(Doc. 122). Upon due consideration, the Court DENIES
third-party petition is the result of the criminal forfeiture
proceeding attached to the criminal prosecution of her
husband, Manila Chicago. Chicago pleaded guilty to certain
charges in the Indictment, and the Government moved for a
preliminary order of forfeiture as to property named in the
Indictment and Bill of Particulars. (Doc. 77). After entry of
the Preliminary Order of Forfeiture (Doc. 78) and Amended
Preliminary Order of Forfeiture (“APOF”) (Doc.
80), the Government notified Nguyen of the forfeiture
proceeding. Nguyen filed a Petition (Doc. 84) and First
Supplemental and Amended Petition (Doc. 85), to which the
Government filed a Motion to Dismiss (Doc. 109). The Court
granted the Government's motion as Nguyen failed to
satisfy the pleading requirements of 21 U.S.C. §
853(n)(3) and failed to state a claim upon which relief may
be granted under 21 U.S.C. § 853(n)(6). (Doc. 117). Now,
Nguyen “submits that the Court's decision …
is in error” and due to be reconsidered. (Doc. 118-1,
grant or denial of a motion to reconsider is left to the
discretion of the trial court. Chapman v. AI
Transport, 229 F.3d 1012, 1023-24 (11th Cir. 2000) (en
banc). Such a motion may not be used as a vehicle to inject
new arguments into the underlying motion or to submit
evidence previously available but not properly presented on
the underlying motion. May v. United Postal Service,
122 F.3d 43, 46 (11th Cir. 1997). Nor may it be used to
“relitigate old matters.” Wilchombe v. TeeVee
Toons, Inc., 555 F.3d 949, 957 (11th Cir. 2009)
(citation omitted). Instead, “[a] motion to reconsider
is only available when a party presents the court with
evidence of an intervening change in controlling law, the
availability of new evidence, or the need to correct clear
error or manifest injustice.” Nelson v. Whirlpool
Corp., 668 F.Supp.2d 1368, 1379 (S.D. Ala. 2009).
“With regard to the third ground, the Court cautions
that any litigant considering bringing a motion to reconsider
based upon that ground should evaluate whether what may seem
to be clear error of law is in fact simply a point of
disagreement between the Court and the litigant.”
Atkins v. Marathon LeTourneau Co., 130 F.R.D. 625,
626 (S.D.Miss. 1990). This standard makes clear that
reconsideration of a previous order is an extraordinary
remedy to be employed sparingly. Nelson, 668
F.Supp.2d at 1379. Although this standard has traditionally
been applied in civil cases, it is also applied to a
third-party petitioner's reconsideration request in a
criminal forfeiture action. United States v.
Gardiner, No. 05-20893-CR, 2007 WL 2765574, at *5 (S.D.
Fla. Sept. 20, 2007).
begin, Nguyen argues that the Government did not request and
the Court did not specify whether her Petition and First
Supplemental and Amended Petition were dismissed with
prejudice. (Doc. 118-1, p. 2). Indeed, neither the
Government's motion nor the Court's Order explicitly
addressed this matter. However, the Advisory Committee Notes
for Federal Rule of Criminal Procedure 32.2(c) instruct that
a motion to dismiss a third-party's petition in a
criminal forfeiture proceeding is sufficiently analogous that
“the Civil Rules may be followed.” Fed. R. Crim.
P. 32.2, Advisory Committee Notes, 2000 Adoption, Subdivision
(c). As such, a motion to dismiss that attacks a
third-party's petition as failing to state a claim upon
which relief may be granted is treated like a motion to
dismiss under Federal Rule of Civil Procedure 12(b)(6).
United States v. Grossman, 501 F.3d 846, 848 (7th
Cir. 2007). An order on a Rule 12(b)(6) motion dismissing a
case is a judgment on the merits. See NAACP v. Hunt,
891 F.2d 1555, 1560 (11th Cir. 1990) (reasoning that the
Supreme Court has clearly stated that “the dismissal
for failure to state a claim under Federal Rule of Civil
Procedure 12(b)(6) is a judgment on the merits”).
Therefore, the sufficiently analogous nature of a failure to
state a claim under Rule 32.2 is also a judgment on the
merits. “An adjudication on the merits is, in turn,
presumed to operate as a dismissal with prejudice unless the
district court specifies otherwise.” Eiber
Radiology, Inc. v. Toshiba Am. Med. Sys., Inc., __ F.
App'x __, 2016 WL 7367778, at *4 (11th Cir. 2016). Thus,
prejudice attached by way of the Court's earlier Order.
Nguyen insists that reconsideration is due because her
interest in the property “is superior to her
husband's interest in her portion of the property”
under 21 U.S.C. § 853(n)(6)(A). (Doc. 118-1, p. 3).
Before addressing this argument, the Court notes that Nguyen
does not specify to which property she refers. Nguyen only
uses the indistinct noun “property, ” but she
speaks to her “undivided ownership portion” and
later discusses that she will be forced from her home if the
Court does not reconsider its Order. Given this, the Court
surmises that Nguyen only asks for reconsideration of the
undersigned's § 853(n)(6)(A) analysis as it relates
to the 13915 Sprinkle Avenue, Mobile, Alabama 36509
Court previously reasoned, Nguyen and her husband hold
Sprinkle Avenue as joint tenants with a right of
survivorship. Alabama law is clear that “each tenant
[in a joint tenancy] is seized of some equal share while at
the same time each owns the whole.” Porter v.
Porter, 472 So.2d 630, 634 (Ala. 1985). When a
petitioner cannot show that her interest is superior to her
joint tenant, she fails to satisfy § 853(n)(6)(A).
See United States v. Jimerson, 5 F.3d 1453, 1455
(11th Cir. 1993). Under this, the Court finds no clear error
in its Order, and Nguyen offers no caselaw that calls for a
different conclusion. She merely disagrees with the
Court's holding and caselaw upon which the undersigned
relied. This is an improper basis for reconsideration.
Additionally, if Nguyen seeks reconsideration of the APOF as
it relates to the contents of PNC Bank Account No.
XXXXXX1595, which she mentions in her conclusion, she offers
no basis upon which the Court's Order is in error, and
the Court finds none. Therefore, the Court DENIES
Nguyen's request as it relates to § 853(n)(6)(B).
Nguyen insists she “may also qualify as a bona fide
purchaser for value of the title to and interest in the
Sprinkle [Avenue] property, because she was at the time of
purchase reasonably without cause to believe that the
property was subject to any forfeiture under this section,
and because the purchase predated any alleged criminal
activity by [Nguyen]'s husband.” (Doc. 118-1, p.
4). She argues that the Court's conclusion that to
qualify for amendment as a bona fide purchaser under 21
U.S.C. § 853(n)(6)(B) that Nguyen must have purchased
any interest from Defendant Chicago is not within the
statute. Id. In other words, she argues that the
Court inappropriately added a statutory requirement she must
satisfy. Notwithstanding, she admits the Eleventh Circuit
Court of Appeals has interpreted § 853(n)(6)(B) to
require the interest in question be purchased from the
criminal defendant but urges the Court find such caselaw
factually distinguishable and inapplicable. Id. The
Court declines to adopt this position for several reasons.
Nguyen offers no caselaw to support her interpretation.
Second, the Eleventh Circuit's unqualified interpretation
of § 853(n)(6)(B) found it “to protect subsequent
purchasers of ‘the defendant's
interest' in an asset, ” not an interest
purchased from any other individual. United States v.
Soreide, 461 F.3d 1351, 1356 (11th Cir. 2006) (emphasis
in original) (quoting United States v. Kennedy, 201
F.3d 1324, 1330 (11th Cir. 2000)). Moreover, the
Soreide Court did not limit its holding to the facts
of that case, as Nguyen requests, or consider the source of
the purchase proceeds in deciding whether § 853(n)(6)(B)
is satisfied, as Nguyen now insists is a distinguishing
factor. Quiet simply, the only relevant factor in the
Soreide Court's § 853(n)(6)(B) analysis was
whether the third-party petitioner purchased an interest in
the property from the criminal defendant or someone else.
Thus, the Court DENIES Nguyen's Motion to Reconsider as
it relates to § 853(n)(6)(B).
also implores the Court revisit its conclusion in regard to
her equitable and constitutional arguments. She explains that
the Government intends to proceed with liquidating the
Sprinkle Avenue property once a final order issues, which
will leave her without her home or compensation and cause
irreparable harm. (Doc. 118-1, p. 7). Therefore, she
continues, the Court should step in and use its equitable
powers to frustrate the Government's foreclosure or, at
least, order a stay of the proceeding. Id. at 9.
first time in her Reply to the Government's opposition to
reconsideration, Nguyen cites Willis Management
(Vermont), Ltd. v. United States, 652 F.3d 236 (2d Cir.
2011), for the proposition that the Court has the power to
act in equity to protect “her interest in the
house.” (Doc. 122, p. 4). Willis Management
(Vermont), Ltd. offers Nguyen no safe harbor. As the
Court previously reasoned in its Order, an equitable argument
like the one in Willis Management (Vermont), Ltd.
succeeds because the third-party petitioner has an equitable
interest that satisfies either § 853(n)(6)(A) or §
853(n)(6)(B). In Willis Management ...