United States District Court, D. Arizona
G. Campbell Senior United States District Judge
Sayegh pled guilty to two counts of conspiracy to manufacture
and distribute controlled substance analogues. Docs. 66, 198.
The Court issued a preliminary order forfeiting certain
assets connected to the crimes, including real property in
Phoenix (“the Property”). Doc. 215 at 2. Claimant
Tara Koebler, who formerly was married to Sayegh, filed a
petition claiming an interest in the Property, but the Court
granted the government's motion to dismiss the petition
as untimely. Doc. 297, 323. Koebler now seeks relief from the
dismissal order under Federal Rule of Civil Procedure 60(b).
Doc. 342. As in other cases, “[t]he United States does
not dispute the use of Rule 60(b) to collaterally attack the
criminal forfeiture order[.].” United States v.
Puig, 419 F.3d 700, 702 (8th Cir. 2005). See United
States v. Estevez, 845 F.2d 1409, 1411 (7th Cir. 1988)
(“[T]he government agrees that the provisions of Rule
60(b) of the Federal Rules of Civil Procedure are available
to a third-party claimant seeking to vacate the final
judgment of forfeiture.”); Fed. R. Crim. P. 32.2(c)
advisory committee notes (noting that a third-party claimant
may file a Rule 60(b) motion to reopen the ancillary
proceeding allowed by 21 U.S.C. § 853(n)).
motion is fully briefed, and oral argument will not aid the
Court's decision. For the following reasons, the Court
will grant the motion.
Court may grant a motion for relief from judgment under Rule
60(b) only upon a showing of (1) mistake, surprise, or
excusable neglect; (2) newly discovered evidence; (3) fraud;
(4) a void judgment; (5) a satisfied or discharged judgment;
or (6) extraordinary circumstances which would justify
relief. Fed.R.Civ.P. 60(b); Allmerica Fin. Life Ins.
& Annuity Co. v. Llewellyn, 139 F.3d 664, 666 (9th
Court dismissed Koebler's original petition contesting
forfeiture of the Property because her former attorney filed
the petition more than five months after the applicable
deadline. See Doc. 323. Koebler seeks relief based
on excusable neglect and extraordinary circumstances pursuant
to Rule 60(b)(1) and (6), respectively. Doc. 342. The
government opposes the motion. Doc. 343.
Rule 60(b)(1): Excusable Neglect.
asserts that her former lawyer failed to understand the
deadlines, burdens of proof, applicable law, and procedural
rules in her case, neglected to conduct the necessary
research to competently represent her, and did not even know
how to retrieve documents from the Court's electronic
filing system. Doc. 342 at 7, 11. In sum, Koebler argues that
the lawyer's ignorance and carelessness constitute
excusable neglect under Rule 60(b)(1).
“neither ignorance nor carelessness on the part of the
litigant or his attorney provide grounds for relief under
Rule 60(b)(1).” Allmerica Fin. Life Ins. &
Annuity Co. v. Llewellyn, 139 F.3d 664, 666 (9th Cir.
1997). Indeed, “[t]he Ninth Circuit has repeatedly
‘refuse[d] to provide relief on account of excusable
neglect [due] to . . . attorney-based mistakes of law.”
See, e.g., Castillo-Antonio v. Iqbal, No.
14-cv-03316-KAW, 2017 WL 3335682, at *3 (N.D. Cal. Aug. 4,
2017) (quoting Latshaw v. Trainer Wortham & Co.,
452 F.3d 1097, 1101 (9th Cir. 2006)); see also Engleson
v. Burlington Northern R. Co., 972 F.2d 1038, 1043-44
(9th Cir. 1992). This is because, “[a]s a general rule,
parties are bound by the actions of their lawyers, and
alleged attorney malpractice does not usually provide a basis
to set aside a judgment pursuant to Rule 60(b)(1).”
Casey v. Albertson's Inc., 362 F.3d 1254, 1260
(9th Cir. 2004).
short, “Rule 60(b)(1) is not intended to remedy the
effects of a . . . the erroneous legal advice of counsel [or]
attorney mistake. . . . Such mistakes are more appropriately
addressed through malpractice claims.” Latshaw,
452 F.3d at 1101
Rule 60(b)(6): Extraordinary Circumstances.
Her Lawyer's Gross Negligence.
60(b)(6) “has been used sparingly as an equitable
remedy to prevent manifest injustice” and “is to
be utilized only where extraordinary circumstances prevented
a party from taking timely action to prevent or correct an
erroneous judgment.” United States v. Alpine Land
& Reservoir Co., 984 F.2d 1047, 1049 (9th Cir.1993).
A party seeking to reopen a case under Rule 60(b)(6)
“must demonstrate both injury and circumstances beyond
[her] control that prevented [her] from proceeding”
with the action. Community Dental Servs. v. Tani,
282 F.3d 1164, 1168 (9th Cir. 2002).
attorney's gross negligence constitutes an extraordinary
circumstance warranting relief from a judgment.”
Lal v. California, 610 F.3d 518, 521 (9th Cir.
2010). Gross negligence is “neglect so gross that it is
inexcusable, ” or conduct “that results in the
client's receiving practically no representation at all,
” which “vitiat[es] the agency relationship that
underlies our general policy of attributing to the client the
acts of [her] attorney.” Id. at 524 (quoting
Tani, 282 F.3d at 1171); Brooks v. Yates,
818 F.3d ...