Opinion
Civil 17-1166
07-24-2018
COMMONWEALTH of Massachusetts, Plaintiff, v. ONE 2000 HONDA CIVIC VIN NO. 2HGEJ6617YH531064, and Eight Hundred Thirty Five ($835.00) Dollars U.S.C., Defendants.
MEMORANDUM AND ORDER ON COMMONWEALTH’S MOTION FOR ENTRY OF DEFAULT JUDGMENT UNDER MASS. R. CIV. P. 55(b)
Peter B. Krupp, Justice of the Superior Court
This forfeiture action is before me on the Commonwealth’s motion for a default judgment under Mass. R. Civ. P. 55(b). For the reasons that follow, the motion is DENIED without prejudice and I enter an appropriate order below. I write because I have seen the issue presented here in a number of cases in Norfolk County and because my order addresses the procedure to be followed in future forfeiture proceedings in Norfolk County.
BACKGROUND
On or about July 27, 2017, Norwood police arrested Michael Ashley ("Ashley"). He was charged, among other things, with possession with intent to distribute a Class B controlled substance (cocaine). At the time of his arrest, the police apparently seized a 2000 Honda Civic and $835. The Norfolk County District Attorney’s Office prosecuted Ashley for this and related charges in the Dedham District Court in Case No. 1754CR001261 ("the Criminal Case"). According to the Criminal Case docket, bail was set for Ashley at $10,000. Ashley was unable to post the bail and was held at the Norfolk County Jail until on or about February 7, 2018, when his bail appears to have been reduced to $1,000, and $1,000 was posted to secure his release.
The Court takes judicial notice of dockets in related proceedings. Jarosz v. Palmer, 436 Mass. 526, 530 (2002); Commonwealth v. Ubeira-Gonzalez, 87 Mass.App.Ct. 37, 39 n. 3 (2015) (court "may take judicial notice of court records in related proceedings").
According to the docket, the Criminal Case is still open. A jury trial is scheduled for August 15, 2018.
On September 25, 2017, while Ashley was being detained, the District Attorney’s Office filed this forfeiture action under G.L. c. 94C, § 47, against the vehicle and cash. The complaint sought, among other things, a court order allowing "the Commonwealth to give notice by certified mail of this action to the potentially interested party, Michael Ashley." The court never acted on that prayer for relief and no motion for an order authorizing service by certified mail was ever filed. The Commonwealth also never requested leave to serve Ashley by first class mail, or by any method other than that expressly authorized by Mass. R. Civ. P. 4(d)(1).
This appears to have been the standard operating procedure for forfeiture actions in this county. The forfeiture statute is awkwardly phrased. It does not give the Commonwealth the right to serve notice of a forfeiture complaint by certified mail, but requires the court to order the Commonwealth to give notice by certified or registered mail. Had the Commonwealth moved for authorization to serve Ashley by certified mail, the Court would have had to authorize such service, see G.L. c. 94C, § 47(d), par. 1 ("The court shall order the Commonwealth to give notice by certified or registered mail ..."), although the Commonwealth may have had to demonstrate that the address to which the Commonwealth sought to direct the certified mail notice was a good and accurate address for the potential claimant. I do not reach the question of whether prior court approval is required before service is made by certified or registered mail.
Under the Massachusetts Rules of Civil Procedure, personal service on an individual may be made in hand or by leaving a copy at the individual’s last and usual place of abode, or by delivery to the individual’s authorized agent. If no such service is able to be made "after diligent search" and such information is returned to the court, "the court may on application of the plaintiff issue an order of notice in the manner and form prescribed by law." Mass. R. Civ. P. 4(d)(1).
On October 3, 2017, the Court (Connors, J.) allowed an ex parte preliminary order authorizing the Norwood Police to maintain custody of the seized vehicle and cash.
Although it had not received a court order to serve Ashley by certified mail, registered mail, or first-class mail, on February 1, 2018, the Commonwealth filed an Affidavit of Return of Service signed by an Assistant District Attorney ("the ADA"). The ADA stated that on or about September 25, 2017, a copy of the complaint and related papers was sent by certified mail, return receipt requested, and by first class mail to Ashley at 36 Whitewood Circle, Norwood, MA 02062 ("the Norwood Address"), which the ADA attested was "the last known address as shown on the police report, Massachusetts RMV and the Board of Probation record." The ADA also indicated that the return receipt was returned marked "Unclaimed," but "[t]he first class mail was not returned."
Compare Mass. R. Civ. P. 4(c) ("[S]ervice of all process shall be made by a sheriff, by his deputy, or by a special sheriff; by any other person duly authorized by law; by some person specially appointed by the court for that purpose; or in the case of service of process outside the Commonwealth, by an individual permitted to make service of process under the law of this Commonwealth or under the law of the place in which the service is to be made, or who is designated by a court of this Commonwealth.").
In fact, the District Attorney’s Office, if not the ADA handling the forfeiture, was well aware - or at least should have known - that Ashley had been unable to post bail after his arrest in July and was being held at the Norfolk County Jail. Based on the information available to the court, there is nothing to indicate that Ashley received notice of the forfeiture proceeding as required so that he could request a stay until the completion of the criminal proceeding, as would be his right, see G.L. c. 94C, § 47(d), par. 1 ("Upon the motion of the owner of [the item sought to be forfeited], the court may continue the hearing on the petition pending the outcome of any criminal trial related to the violation of this chapter."), or contest the forfeiture on the merits if he so chose.
According to the docket in the Criminal Case, after his arraignment in July 2017, Ashley had to be brought in from the Norfolk County Jail a number of times for court appearances in the Criminal Case, or his presence was waived because he was still incarcerated, including on August 28, 2017, September 28, 2017, October 25, 2017, November 30, 2017, December 20, 2017 and February 7, 2018.
Having received no response or claim from Ashley in this forfeiture matter following the purported service at the Norwood Address, on April 6, 2018, the Commonwealth filed a request for a default. The Clerk’s Office entered a default the same day.
The motion for a default judgment, which is now before me, was filed on July 2, 2018. Like the earlier failed purported service, the certificate of service filed by the ADA in connection with the request for a default judgment indicates that it was mailed to Ashley at the Norwood Address on May 7, 2018. There is no indication that Ashley was living at the Norwood Address at the time. Indeed, Ashley was back in custody by late April 2018, a fact likely well known to the District Attorney’s Office.
Ashley was re-arrested on or about April 26, 2018, and charged in the Dedham District Court with a new drug distribution charge in Case No. 1854CR000836. He was held on $5,000 bail. He has since been indicted on that offense and was arraigned before me on July 16, 2018 in Case No. 1882CR00165. The next scheduled hearing in the Superior Court case is on August 15, 2018.
DISCUSSION
A forfeiture action is a civil action in rem. See Commonwealth v. One 2004 Audi Sedan Auto., 73 Mass.App.Ct. 311, 319 (2008) (forfeiture proceeding is civil action governed by Massachusetts Rules of Civil Procedure), aff’d, 456 Mass. 34 (2010). Before a forfeiture action may proceed, the Commonwealth must provide notice of the proceeding "to the owner of" the item(s) sought to be forfeited "and to such other persons as appear to have an interest therein." G.L. c. 94C, § 47(d), par. 1. See, e.g., Commonwealth v. Brown, 426 Mass. 475, 480 (1998) (section 47(d) "requires the Commonwealth to provide the owner of the property ... with notice prior to a hearing"). Under the Massachusetts Rules of Civil Procedure, service on an individual in any civil action must comply with Mass. R. Civ. P. 4(d)(1). In addition, the forfeiture statute directs the court to "order the Commonwealth to give notice by certified or registered mail." G.L. c. 94C, § 47(d), par. 1.
Here, the Commonwealth failed to comply with Rule 4(d)(1) of the Massachusetts Rules of Civil Procedure; failed to get authorization from the court to serve notice by certified mail (which attempt failed in any event); and did not request or receive authorization from the court to serve the purported claimant by first-class mail. Moreover, the certified mailing was sent to an address where Ashley was not then presiding. As such, service was never effectuated, and no default should have entered against Ashley in the first place.
The docket in the Criminal Case indicates that on August 28, 2017, the Commonwealth filed a notice of intent to seek forfeiture of $805 - I do not know if this is part of the $835 at issue in the civil forfeiture matter or a different sum - and two cellular telephones, but does not reference forfeiture of a vehicle. Such notice, a month before the filing of the civil forfeiture complaint, is hardly adequate notice of the civil proceeding and cannot substitute for the notice required to be given under G.L. c. 94C, § 47(d).
What is most troubling about this case (and a number of others I have seen) is the District Attorney’s disregard of the information readily available to him about the whereabouts of the purported claimant. The District Attorney’s Office knew that Ashley was at the Norfolk County Jail, knew (or could have easily figured out) when Ashley would be in the Dedham District Court on the pending charge, and could have easily arranged to have him served in hand at the District Court or by certified mail at the Jail. Instead, the ADA sent notice by certified mail and first class mail without authorization of the court to an address the ADA should have known was not where Ashley could be found. There is no indication Ashley had actual notice of this proceeding before the default judgment entered. Given the failure to make proper service, the default that entered against Ashley must be vacated.
Strict compliance with the notice requirements is particularly important where, as with a forfeiture proceeding under § 47(d), the Commonwealth has "a direct pecuniary interest in the outcome of the proceeding." Commonwealth v. One 2004 Audi Sedan Auto., 456 Mass. 34, 45 (2010), quoting United States v. James Daniel Good Real Prop., 510 U.S. 43, 56 (1993).
ORDER
The Commonwealth’s Motion for Entry of Default Judgment Rule 55(b) (Docket # 8.0) is DENIED without prejudice. The default which entered on April 6, 2018 is VACATED. The Commonwealth shall promptly serve Ashley with the complaint and other related papers in this case in a manner that complies with Mass. R. Civ. P. 4(d)(1) or by certified mail at the appropriate address, and shall file the return of service with the court by August 30, 2018.
In all future forfeiture cases in Norfolk County, if the Commonwealth serves the owner or other person with an interest in the items sought to be forfeited ("the Claimant") by certified mail, any affidavit or return of service filed with the court shall, unless the court orders otherwise, indicate (i) the address to which service was sent, (ii) the factual basis for believing the Claimant was residing at that address at the time of service, and (iii) whether the Claimant is in custody or is the subject of any then-pending criminal prosecution. Any certificate of service filed with regard to any subsequent pleading, including a request for a default judgment under Mass. R. Civ. P. 55(b), shall include the same information required in (i), (ii) and (iii) above, updated as of the date of service of the subsequent pleading.