United States District Court, D. Arizona
Honorable Roslyn O. Silver Senior United States District
Christopher Wayne Francis seeks relief from the judgment
entered on January 31, 2007, that concluded $41, 400 was
subject to forfeiture. (Doc. 14). Francis now claims he was
abandoned by the attorney he hired to contest the forfeiture
and his incarceration rendered him “unable to obtain
the documentary evidence” that would have prevented
forfeiture of the money. (Doc. 19 at 11). Even assuming
Francis' attorney abandoned him, Francis has not met the
high bar for obtaining relief from an eleven-year-old
15, 2006, the United States of America filed a
“Verified Complaint for Forfeiture In Rem.” (Doc.
1). That complaint alleged Phoenix Police Detectives had
encountered Francis at Sky Harbor Airport shortly after
Francis arrived on a flight from Florida. During that
encounter the police discovered Francis was carrying a total
of $41, 400 in U.S. currency. Most of the currency was
“concealed within Francis' shoes [and] placed in
heat sealed bags.” (Doc. 1 at 5). The currency was
seized and a police dog later “gave a positive
alert” to the currency, indicating the currency had
been around “marijuana, methamphetamine, cocaine [or]
heroin.” (Doc. 1 at 15).
through attorney T.S. Hartzell, filed an answer to the
complaint. (Doc. 6). That answer alleged the currency
“had a legitimate and explainable origin” and it
was not “the proceeds of a criminal offense.”
(Doc. 6 at 3). Francis' answer sought the
“immediate return of the claimed currency.” (Doc.
6 at 3). Francis also filed, again through his attorney, a
“Statement of Interest or Right Against
Property.” (Doc. 7). In that document Francis claimed
he was “the owner of $30, 000 of the $41, 400”
that had been seized. (Doc. 7 at 1). Francis stated the
currency had been “obtained from the sale of real
property” and he was transporting the money to Phoenix
“for the purpose of buying a tow truck for his
automobile repair business.” In August 2006, the United
States propounded discovery requests. Francis did not
respond. In November 2006, the United States moved for
summary judgment. (Doc. 13). A portion of that motion
depended on Francis' failure to respond to the discovery
requests. According to the United States, Francis'
failure to respond to the discovery requests meant he had
admitted the seized currency was “the proceeds of the
illegal sale and distribution of controlled substances”
and that he was “a courier transporting U.S. currency,
used or intended to be used to purchase controlled
substances.” (Doc. 13 at 13). Francis did not file an
opposition to the motion for summary judgment.
January 31, 2007, the Court granted the United States'
motion. In doing so, the Court noted Francis' failure to
respond to the motion meant the Court only had the United
States' “uncontroverted facts to examine.”
(Doc. 14 at 2). And under those facts, the currency was
subject to forfeiture. In particular, Francis' failure to
respond to the discovery requests meant he had admitted the
crucial facts. Francis did not appeal.
two years later-on July 14, 2009-Francis filed a pro se
“Request for Status of Case Pending and/or Not
Pending.” (Doc. 17). That request explained there had
been a “breakdown in communication with retained
counsel (T.S. Hartzell)” such that Francis was unaware
whether the case had been resolved. The United States
responded to that request by providing a brief history of the
case, including a clear statement that the currency had been
“forfeited . . . and disposed of according to
law” as of February 1, 2007. (Doc. 16 at 3). The United
States mailed its response to Francis. On July 16, 2009, the
Court denied Francis' request for a status report as moot
in light of the United States' response. (Doc. 18). The
Court mailed a copy of its Order to Francis.
took no additional action for a little over eight years. It
was not until October 30, 2017, that Francis filed the
now-pending “Motion for Relief from Judgment; Verified
Rule 60 Fed. R. Civ. P.” (Doc. 19). Francis argues he
“defaulted by no fault of his own and can prove with
documentation” that the seized currency came from a
legal source. (Doc. 19 at 1). Francis further states the
United States obtained summary judgment solely “through
the mistake or inadvertence or neglect of Francis'
attorney.” (Doc. 19 at 5). As for why Francis himself
did not act sooner, Francis states he “has been
incarcerated since 2008” and was “unable to
obtain the documentary evidence which corroborates his right
to the currency.” (Doc. 19 at 7). Francis attached to
his motion evidence that he sold a home in 2004 and documents
allegedly showing Francis was operating an automobile repair
shop around that same time.
United States opposes the motion and claims Francis waited
far too long to seek relief from the judgment. In addition,
the United States asserts the motion fails on the merits. In
his reply, Francis focuses on his incarceration since 2008.
According to Francis, that incarceration rendered him
“powerless to obtain” the documentation proving
his entitlement to the currency. Francis also reiterates his
position that he should not be responsible for Hartzell's
complete abandonment. (Doc. 22 at 2).
argues his motion is brought pursuant to Federal Rule of
Civil Procedure 60(b) but he does not clearly identify the
subsection of that rule he believes should apply. Rule 60(b)
lists the six bases for motions seeking relief from a final
judgment. Those bases are:
mistake, inadvertence, surprise, or excusable neglect; 2)
newly discovered evidence that, with reasonable diligence,
could not have been discovered in time to move for a new
trial under Rule 59(b); 3) fraud (whether previously called
intrinsic or extrinsic), misrepresentation, or misconduct by
an opposing party; 4) the judgment is void; 5) the judgment
has been satisfied, released, or discharged; it is based on
an earlier judgment that has been reversed or vacated; or
applying it prospectively is no longer equitable; or 6) any
other reason that justifies relief.
motion under bases one through three must be filed within one
year of “the entry of the judgment.” Fed.R.Civ.P.
60(c). And a motion under bases four through six must be
filed “within a reasonable time.” Id.
Because it has been more than one year since the entry of
judgment, the Court has no power to grant relief under Rule
60(b)(1), (2), or (3). See Nevitt v. United States,
886 F.2d 1187, 1188 (9th Cir.1989) (“Since the Rule
60(b)(2) motion was not filed within one year of entry of
judgment, the district court lacked jurisdiction to consider
it.”). And Francis does not argue the judgment was void
under 60(b)(4) or that it has somehow been satisfied or
released under 60(b)(5). Thus, Francis' only possible
basis for relief is Rule 60(b)(6).
receive relief under Rule 60(b)(6), a party must demonstrate
extraordinary circumstances which prevented or rendered him
unable to prosecute [his case].” Lal v.
California, 610 F.3d 518, 524 (9th Cir. 2010). Attorney
misconduct can qualify as extraordinary circumstances when
the attorney's behavior constituted “gross
negligence.” Cmty. Dental Servs. v. Tani, 282
F.3d 1164, 1169 (9th Cir. 2002). And “gross
negligence” might exist when an attorney
“virtually abandon[s]” his client. Id.
at 1170. Here, Francis alleges his attorney abandoned him
immediately after filing the answer to the forfeiture
complaint. Francis has not, however, provided the details of
that abandonment. Without such details it is not possible to
determine the attorney was grossly negligent. Thus, Francis
has not carried his burden of proving his attorney acted with