United States District Court, N.D. California, San Francisco Division
ORDER DENYING PLAINTIFF'S MOTION FOR LEAVE TO FILE A MOTION FOR RECONSIDERATION [Re: ECF No. 23]
LAUREL BEELER, Magistrate Judge.
Plaintiff Chike Okafor filed a Motion for Return of Property under Rule 41(g) of the Federal Rules of Criminal Procedure, the Civil Asset Forfeiture Reform Act of 2000 ("CAFRA"), and the Due Process clause of the Fifth Amendment, regarding the administrative forfeiture by the Drug Enforcement Administration ("DEA") of $99, 500 in United States currency seized from Plaintiff. ECF No. 1. The government opposed the motion and moved to dismiss for lack of jurisdiction. ECF No. 14. Following a hearing on July 3, 2014, the court denied the government's motion to dismiss for lack of jurisdiction, but also denied the Plaintiff's motion for return of property. Plaintiff has now filed a motion for leave to file a motion for reconsideration. ECF No. 23. For the reasons set forth below, the court denies the motion.
I. FACTUAL ALLEGATIONS
On April 4, 2013, DEA agents at San Francisco International Airport seized $99, 500 from Plaintiff's carry-on bag after a trained narcotics canine alerted to the cash, and following a search to which he consented. By Notice bearing a mailing date of May 1, 2013, the DEA informed Plaintiff that the $99, 500 had been seized and was subject to forfeiture pursuant to 21 U.S.C. § 881 because the property was used or acquired as a result of a violation of the Controlled Substances Act. See Rashid Decl. Ex. 2, ECF No. 12. The Notice provided Plaintiff with a deadline of June 5, 2013 by which to file a claim contesting the forfeiture. Id.
Plaintiff's counsel David Michael submitted a declaration in support of Plaintiff's motion declaring under oath that on June 4, 2013, he personally delivered a FedEx envelope containing Plaintiff's administrative claim, along with a cover letter that he had drafted, to the FedEx office on Shattuck Avenue in Berkeley, California. See Michael Decl. ¶ 3, ECF No. 3. He asserts that he delivered the envelope before the 5:15 p.m. deadline on June 4, 2013 for delivery before 10:30 a.m. on June 5, 2013. Id .; see also FedEx priority overnight airbill, Michael Decl. Ex. B. (dated "May 4, 2013" and stamped received by the DEA on June 6, 2013). The airbill does not have any markings on it that show when or where it was actually received by the FedEx office or even which office received it.
Plaintiff also provided the court with a printout of the tracking information for this envelope available on the FedEx website. Id. Ex. L. This printout shows that the envelope was picked up on June 5, 2013 at 4:49 p.m. at Emeryville, CA. The envelope was delivered to the DEA on June 6, 2013, at 9:03 a.m., after the June 5, 2013 deadline. Id. On June 13, 2013, the DEA sent a letter to Plaintiff's counsel stating that the claim was untimely and offered Plaintiff twenty days to file a Petition for Remission and/or Mitigation. See Michael Decl. Ex. C, ECF No. 3. As part of the motion for return of property, Plaintiff's counsel Michael stated in his declaration that "I have reviewed this delivery with FedEx and they, mysteriously, only trace the package back to the Emeryville processing center and lose track of its location prior to that time." Id. ¶ 3. He concluded that "it is obvious to [him] that, for some reason, the package was lost or misplaced in the Berkeley drop-off office on 4 June 2013, and inadvertently found in the Emeryville processing center the next day, which accounts for its delivery to DEA on 6 June, 2013." Id.
II. PROCEDURAL HISTORY
Plaintiff filed the motion for return of property and counsel's supporting declaration on March 4, 2014. ECF Nos. 1, 3. On May 15, 2014, the government filed a single pleading which was both a Motion to Dismiss for Lack of Jurisdiction and an Opposition to Plaintiff's Motion for Return of Property. See ECF No. 14. Plaintiff filed a Reply on May 20, 2014. ECF No. 15. The government filed a Reply on June 5, 2014. ECF No. 16.
The court held a hearing on July 3, 2014. Counsel Michael was not in attendance, and Plaintiff was represented by another attorney, Edward Burch, from the Michael law firm. At the hearing, the court inquired as to whether there was any additional information that existed to supplement the record relating to the late filing, and counsel for Plaintiff indicated that there was none.
The court then issued an order on July 3, 2014 finding that while the court had jurisdiction, the factual record before the court did not support a finding of extraordinary circumstances justifying equitable tolling. ECF No. 22.
On July 14, 2014, Plaintiff filed, pursuant to Civil Local Rule 7-9, a request for leave of court to file a motion for reconsideration of this court's prior Order of 7/3/2014, denying the government's motion to dismiss but also denying Plaintiff's motion to return property. The court ordered the government to file a ...