United States v. One 2004 Land Rover Range Rover , 369 F. App'x 208 ( 2010 )

09-2102-cv
United States v. One 2004 Land Rover Range Rover
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT . CITATION TO A SUMMARY ORDER FILED
ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT ’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
DOCUMENT FILED WITH THIS COURT , A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER ”). A PARTY CITING A SUMMARY ORDER MUST
SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL .
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 10 th day of March, two thousand ten.
5
6 PRESENT: DENNIS JACOBS,
7 Chief Judge,
8 GUIDO CALABRESI,
9 Senior Circuit Judge,
10 CHRISTOPHER F. DRONEY, *
11 District Judge.
12
13 - - - - - - - - - - - - - - - - - - - -X
14 United States of America,
15 Plaintiff-Appellee,
16
17 -v.- 09-2102-cv
18
19 One 2004 Land Rover Range Rover,
20 Defendant,
21
22 Sanfer Sports Cars, Inc.,
23 Claimant-Appellant.
24 - - - - - - - - - - - - - - - - - - - -X
*
Christopher F. Droney, Judge of the United States
District Court for the District of Connecticut, sitting by
designation.
1
1 FOR APPELLANT: RICHARD J. DIAZ, Coral Gables, FL.
2
3 FOR APPELLEE: MONICA J. RICHARDS, Assistant United
4 States Attorney, of counsel, for
5 Kathleen M. Mehltretter, United
6 States Attorney, Western District of
7 New York, Buffalo, NY.
8
9 Appeal from an order of the United States District
10 Court for the Western District of New York (Skretny, J.).
11
12 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
13 AND DECREED that the order of the district court be
14 AFFIRMED.
15
16 Sanfer Sports Cars, Inc. (“Sanfer”) appeals from a
17 March 31, 2009 order of the United States District Court for
18 the Western District of New York (Skretny, J.), striking its
19 civil-forfeiture claim for lack of standing pursuant to Rule
20 G(8)(c)(i)(B) of the Federal Rules of Civil Procedure
21 Supplemental Rules for Admiralty or Maritime Claims and
22 Asset Forfeiture Actions (“Supplemental Rules”). We assume
23 familiarity with the underlying facts, the case’s procedural
24 history, and the issues presented for review.
25 Sanfer argues that it had standing 1 as actual owner of
26 the defendant vehicle. 2 However, under Florida law, which
1
The result is the same whether the issue is
characterized as one of constitutional (i.e., Article III)
standing or one of “statutory standing” (i.e., according to
the parties, Sanfer’s status as owner for purposes of 18
U.S.C. § 983(d)). We express no opinion on the nature of
the “standing” inquiry that should be undertaken when
considering a motion to strike under Supplemental Rule G,
let alone whether either of the aforementioned “standing”
inquiries (constitutional or “statutory”) is the appropriate
one.
2
Both parties assume that any property interest Sanfer
had was divested at the moment of seizure by operation of 21
U.S.C. § 881(h), and that any act thereafter was
ineffective. Neither party having disputed this assumption,
we do not examine its validity. But cf. United States v.
Parcel of Land, Bldgs., Appurtenances & Improvements, Known
as 92 Buena Vista Ave., Rumson, N.J., 507 U.S. 111, 128-29
(1993) (plurality opinion) (holding that relation-back
provision of § 881(h) does not operate until entry of a
2
1 governs, Sanfer’s ownership ceased at the moment Sanfer
2 delivered the defendant vehicle. See Fla. Stat. §
3 672.401(2); Palm Beach Auto Brokers, Inc. v. DeCarlo, 620
4 So. 2d 250, 252 (Fla. Dist. Ct. App. 1993). Sanfer’s
5 failure to register the title transfer did not prevent the
6 title’s passage. In re Mullennix, No. 05-BK-28199-JKO, 2006
7 WL 1548643, at *4 (Bankr. S.D. Fla. Apr. 27, 2006) (applying
8 Florida law); Motor Credit Corp. v. Woolverton, 99 So. 2d
9 286, 290 (Fla. 1957). Nor is Ragg v. Hurd, 60 So. 2d 67310 (Fla. 1952) (cited by Sanfer) to the contrary; here, the
11 parties to the sale did not condition the passing of title
12 on the payment of the balance of the purchase price. Cf.
13 id. at 674 (holding that, where “the entire course of
14 conduct of the appellants discloses an intention not to part
15 with the title to the car until the cash payment had
16 actually been received by them,” (emphasis added) that
17 intention is enforceable).
18 Sanfer argued in the district court that its interest
19 as lienholder was sufficient to confer standing. Sanfer,
20 however, has not presented that argument on appeal. It is
21 therefore forfeited. See, e.g., Tolbert v. Queens Coll.,
22 242 F.3d 58, 75 (2d Cir. 2001) (“It is a settled appellate
23 rule that issues adverted to in a perfunctory manner,
24 unaccompanied by some effort at developed argumentation, are
25 deemed waived.” (internal quotation marks omitted)); Norton
26 v. Sam’s Club, 145 F.3d 114, 117 (2d Cir. 1998) (“Issues not
27 sufficiently argued in the briefs are considered waived and
28 normally will not be addressed on appeal.”).
29 Finding no merit in Sanfer’s remaining arguments, we
30 hereby AFFIRM the order of the district court.
31
32
33 FOR THE COURT:
34 CATHERINE O’HAGAN WOLFE, CLERK
35
36
forfeiture judgment; therefore, “[b]ecause the success of
[forfeiture defenses] will necessarily determine whether §
881(h) applies, [the innocent owner defense] must allow an
assertion of the defense before § 881(h) applies”); Counihan
v. Allstate Ins. Co., 25 F.3d 109, 112 (2d Cir. 1994) (“It
is manifest that [§ 881(h)] cannot serve to transfer
ownership of the property until there is a final judgment of
forfeiture.”).
3