Opinion
6:18-CR-06051 EAW
2023-04-03
UNITED STATES of America, v. Kevin CONCEPCION, Defendant.
Sean C. Eldridge, Government Attorney, U.S. Attorney's Office, Rochester, NY, for United States of America. Michael Patrick Schiano, The Schiano Law Office, Rochester, NY, for Defendant.
Sean C. Eldridge, Government Attorney, U.S. Attorney's Office, Rochester, NY, for United States of America. Michael Patrick Schiano, The Schiano Law Office, Rochester, NY, for Defendant.
DECISION AND ORDER
ELIZABETH A. WOLFORD, Chief Judge
On June 7, 2017, defendant Kevin Concepcion ("Defendant") was charged by way of criminal complaint with conspiracy to commit a controlled substance offense involving five kilograms or more of a mixture and substance containing cocaine, a Schedule II controlled substance, and heroin, a Schedule I controlled substance, in violation of 21 U.S.C. §§ 846, and 841(a)(1) and (b)(1)(A). (Dkt. 1). On September 10, 2018, Defendant waived indictment and pleaded guilty to a criminal information charging him with one count of engaging in a narcotics conspiracy involving five or more kilograms of cocaine, in violation of 21 U.S.C. § 846, and one count of engaging in a money laundering conspiracy, in violation of 18 U.S.C. § 1956(h). (Dkt. 20; Dkt. 21; Dkt. 22; Dkt. 23). Sentencing is scheduled for April 5, 2023. (Dkt. 60).
Presently pending before the Court is a motion filed by third-party movant The Money Source, Inc. ("TMS"), requesting that the Court set aside the final order of forfeiture pursuant to Rule 60(b)(6) of the Federal Rules of Civil Procedure. (Dkt. 47). The government filed a response on September 29, 2022 (Dkt. 51), and TMS filed a reply on February 9, 2023 (Dkt. 59). Because TMS's motion is untimely, and even if timely TMS has not met its burden to establish extraordinary circumstances, the motion is denied.
BACKGROUND
As part of his plea agreement, Defendant agreed to forfeit certain property, including the premises and real property located at 141 Sapphire Drive, Mooresville, North Carolina (hereinafter, "the Sapphire Drive property"). (Dkt. 22 at 12). The Court entered a preliminary order of forfeiture as to the Sapphire Drive property on September 17, 2018. (Dkt. 25). Following entry of the preliminary order of forfeiture, on September 28, 2018, the government filed a Notice of Lis Pendens (hereinafter, the "Notice") as to the Sapphire Drive property with the Iredell County, North Carolina Register of Deeds. (Dkt. 47 at ¶ 9; id. at 27-28 (Exhibit C)). The Notice was recorded in Book 2580 at Page 1368, and it stated both the caption of the criminal case, United States of America v. Kevin Concepcion, as well as that "[t]he name of the person whose estate or interest is intended to be affected is: Arriel Concepcion." (Id. at 27-28). Arriel Concepcion was Defendant's wife. (Id. at ¶ 5). Notice of the forfeiture for the Sapphire Drive property was posted online at www.forfeiture.gov for 30 days, ending on November 8, 2018. (Dkt. 26). Arriel Concepcion was sent direct notice of the preliminary order of forfeiture on December 3, 2018, and on December 10, 2018. (Dkt. 27; Dkt. 28).
According to the presentence investigation report, Defendant and his wife separated in 2019 (Dkt. 57 at ¶ 116), but the Court does not have any information before it suggesting that they have divorced and therefore for purposes of this motion assumes that they remain married.
Some two years later, on September 22, 2020, "Arriel Concepcion, Married" secured a Home Equity Line of Credit ("HELOC") as to the Sapphire Drive property with Loanlenders of America, Inc. for approximately $301,688. (Dkt. 47 at ¶ 12; id. at 30-41 (Exhibit D)). The Deed of Trust for the HELOC loan is signed by Arriel Concepcion and "Kevin Concepcion, by his attorney in fact Arriel Concepcion." (Id. at 40). The Power of Attorney document purportedly signed by Defendant was recorded in Book 2730 at Page 783. (See id. at 49 (Exhibit G)). The Deed of Trust for the HELOC was recorded in the Iredell County Public Registry in Book 2737 at Page 994, on or about September 24, 2020. (Id.).
The actual document purportedly constituting the Power of Attorney signed by Defendant is not in the record before the Court.
The Court entered a final order of forfeiture as to the Sapphire Drive property on December 21, 2020 (Dkt. 38), a copy of which was recorded in the Iredell County Public Registry at Book 2792, Page 779, on or about March 12, 2021 (Dkt. 47 at ¶ 14). The final order of forfeiture states that the Sapphire Drive property "is hereby forever removed, discharged, condemned, and forfeited to the United States of America." (Dkt. 38 at 2). On February 16, 2022, Loanlenders of America conveyed the Deed of Trust for the Sapphire Drive property to TMS, and the reassignment was recorded in the Iredell County Public Registry in Book 2898 at Page 1707 on February 25, 2022. (Dkt. 47 at ¶ 16; id. at 47 (Exhibit F)).
On May 18, 2022, TMS commenced an action in Superior Court, Iredell County, North Carolina against the United States, seeking quiet title to the Sapphire Drive property and asserting that it has superior interest in the property. (See The Money Source, Inc. v. United States of America, W.D.N.C. Case No. 5:22-CV-00087 (W.D.N.C.), Dkt. 1 at ¶ 1). The action was removed to the United States District Court for the Western District of North Carolina on June 30, 2022. (Id., Dkt. 1). The United States Attorney for the Western District of North Carolina moved to dismiss the action (id., Dkt. 5), and on September 2, 2022, after obtaining two extensions of time to respond to the motion, TMS stipulated to dismiss the action without prejudice pursuant to Rule 41(a)(1)(A)(ii) of the Federal Rules of Civil Procedure. (See id., Dkt. 8; Dkt. 10; Dkt. 11). Shortly thereafter, on September 6, 2022, TMS filed the pending motion to set aside the final order of forfeiture.
DISCUSSION
I. TMS's Motion and the Arguments Raised by the Parties
TMS seeks an order setting aside the final order of forfeiture, as well as an ancillary proceeding under 21 U.S.C. § 853(n). (Dkt. 47-1). In support of its argument, TMS contends that the government failed to file the Notice in compliance with North Carolina law, including because the Notice was not indexed in the Iredell County Public Registry under Arriel Concepcion's name, despite that she was the only titled owner of the property. (See Dkt. 47-1 at 4 (citing North Carolina General Statutes ("N.C.G.S.") §§ 161-22(a); 161-22.3; 147-54.3(a), (b)(1); N.C. Ass'n of Reg. of Deeds, Minimum Standards for Indexing Real Prop. Instruments, § 2.01)). Further, TMS argues that the Notice was not filed with the Clerk of the Superior Court, as required by N.C.G.S. § 1-116(a) and 1-117. (Dkt. 47-1 at 4-5). Accordingly, TMS contends that it was without cause to believe that the Sapphire Drive property was subject to forfeiture, and it is entitled to the protection of its interest in the property as a bona fide lien creditor. (Id. at 5). TMS requests that the Court set aside the final order of forfeiture pursuant to Rule 60(b) of the Federal Rules of Civil Procedure, and then hold an ancillary proceeding pursuant to 21 U.S.C. § 853(n), so that the Court can adjudicate its interest in the Sapphire Drive property. (Id. at 6, 11).
N.C.G.S. § 1-116(a) states: "Any person desiring the benefit of constructive notice of pending litigation must file a separate, independent notice thereof, which notice shall be cross-indexed in accordance with G.S. 1-117, in all of the following cases: (1) Actions affecting title to real property . . . ." N.C.G.S. § 1-117 states: "Every notice of pending litigation filed under this Article shall be cross-indexed by the clerk of the superior court in a record, called the 'Record of Lis Pendens,' to be kept by the clerk under G.S. 7A-109."
"It is . . . well settled that section 853(n) provides the exclusive means by which a third party may lay claim to forfeited assets—after the preliminary forfeiture order has been entered." DSI Assocs. LLC v. United States, 496 F.3d 175, 183 (2d Cir. 2007); see also United States v. Puig, 419 F.3d 700, 703 (8th Cir. 2005) ("A § 853(n) ancillary proceeding is the only avenue by which a third-party claimant may seek to assert an interest in property that has been included in an indictment alleging that the property is subject to forfeiture."). Under that subsection, "[a]ny person, other than the defendant, asserting a legal interest in property which has been ordered forfeited to the United States pursuant to this section may, within thirty days of the final publication of notice or his receipt of notice under paragraph (1), whichever is earlier, petition the court for a hearing to adjudicate the validity of his alleged interest in the property." 21 U.S.C. 853(n)(2).
As explained above, publication was completed on November 8, 2018 (Dkt. 26), and therefore the date by which TMS was required to timely petition the Court under 21 U.S.C. § 853(n) was December 8, 2018, at the latest. Accordingly, to pursue relief by way of an ancillary proceeding under 21 U.S.C. § 853(n), TMS must first move pursuant to Rule 60 of the Federal Rules of Civil Procedure, to set aside the final order of forfeiture. See United States v. Alpeter, No. 5:05-CR-347-003(NAM), 2008 WL 123902, at *1 (N.D.N.Y. Jan. 10, 2008) ("Since a final order of forfeiture has been entered in this case, the United States has clear title to the properties at issue. Thus, to obtain any relief, petitioners would have to first file a motion pursuant to Rule 60(b) of the Federal Rules of Civil Procedure to reopen the ancillary forfeiture proceeding." (citing 3 Charles Alan Wright, Nancy J. King, Susan R. Klein, & Sarah N. Welling, Federal Practice and Procedure Criminal § 547 (3d ed. 2007) ("If adequate notice of the criminal forfeiture action was not provided to the third party, that party may file a motion under Rule 60(b) of the Federal Rules of Civil Procedure to reopen the ancillary proceeding.")); see also DSI Assocs. LLC, 496 F.3d at 187 n.18 ("Upon successful completion of perfecting a judgment in state court, DSI might then file a Rule 60(b) motion to reopen the ancillary forfeiture proceeding in the district court and litigate its claim as to its property interest within the statutory scheme created by Congress."); Puig, 419 F.3d at 702 ("The United States does not dispute the use of Rule 60(b) to collaterally attack the criminal forfeiture order, and we proceed to review the district court's disposition of the Rule 60(b) motion.").
While the parties agree regarding the applicability of Rule 60(b), they dispute which subsection of Rule 60(b) applies. TMS argues that the Court should consider its motion to set aside the final order of forfeiture under Rule 60(b)(6), which requires that it demonstrate "extraordinary circumstances" warranting such relief. (See Dkt. 47-1 at 6). In response, the government contends that Rule 60(b)(1)—which addresses circumstances where there has been "mistake, inadvertence, surprise, or excusable neglect"—applies, because its failure to properly file the Notice and TMS's failure to timely commence a § 853(n) ancillary proceeding was due to a mistake, inadvertence, surprise, or excusable neglect. (Dkt. 51 at 5-6). Accordingly, the Court considers Rule 60(b), as well as subsections (b)(1) and (b)(6).
Although never directly acknowledged by the government in its opposition papers, there appears to be no dispute that the government failed to properly index and file the Notice in accordance with North Carolina law.
II. Rule 60(b)
Pursuant to Rule 60(b) of the Federal Rules of Civil Procedure, "[o]n motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;Fed. R. Civ. P. 60(b). "A motion under Rule 60(b) must be made within a reasonable time—and for reasons (1), (2), and (3) no more than a year after the entry of the judgment or order or the date of the proceeding." Id. at (c)(1). In other words, all motions under Rule 60(b) must be made within a reasonable time, but the outer limit for relief sought under subsections (1) through (3) is one year following the order or judgment being challenged.
(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.
"Rule 60(b) provides a mechanism for extraordinary judicial relief available only if the moving party demonstrates exceptional circumstances, and relief under the rule is discretionary." Motorola Credit Corp. v. Uzan, 561 F.3d 123, 126 (2d Cir. 2009) (citations, quotations, and alterations omitted). "A Rule 60(b) motion should be broadly construed to do substantial justice, yet final judgments should not be lightly reopened." PG 1044 Madison Assocs., L.L.C. v. Sirene One, L.L.C., 229 F.R.D. 450, 452 (S.D.N.Y. 2005) (quotations and citation omitted). "A motion for relief from judgment is generally not favored and is properly granted only upon a showing of exceptional circumstances. The burden of proof is on the party seeking relief from judgment . . . ." United States v. Int'l Bhd. of Teamsters, 247 F.3d 370, 391 (2d Cir. 2001). "To grant relief from a final order pursuant to Rule 60(b), a court must find that (1) the circumstances of the case present grounds justifying relief and (2) the movant possesses a meritorious claim in the first instance." Deng v. N.Y.S. Office of Mental Health, No. 1:13-cv-6801 (ALC) (SDA), 2018 WL 11176016, at *1 (S.D.N.Y. July 18, 2018) (quoting Cobos v. Adelphi Univ., 179 F.R.D. 381, 385 (E.D.N.Y. 1998)), aff'd, 783 F. App'x 72 (2d Cir. 2019). "The decision whether to grant a party's Rule 60(b) motion is committed to the 'sound discretion' of the district court, and appellate review is confined to determining whether the district court abused that discretion." Stevens v. Miller, 676 F.3d 62, 67 (2d Cir. 2012).
A. Rule 60(b)(1)
As explained above, the final order of forfeiture was entered on December 21, 2020 (Dkt. 38), and therefore almost two years passed before TMS filed the instant motion on September 6, 2022 (Dkt. 47). Accordingly, if Rule 60(b)(1) applies, the motion is untimely.
In support of its contention that Rule 60(b)(6) applies in this instance, TMS argues that subsections (1) through (5) are inapplicable. (Dkt. 47-1 at 7). TMS further contends that its motion is not predicated upon the grounds for relief contemplated by Rule 60(b)(1) because no culpable conduct of its own led to the default. (See Dkt. 47-1 at 9-10 ("Here . . . no culpable conduct of TMS led to the default . . . . Any 'mistake, inadvertence, surprise, or excusable neglect' that may have occurred and thus brought about the instant dispute would therefore necessarily be attributable to USA's recording errors.")). Accordingly, TMS concludes that the Court should apply subsection (b)(6)—the "catchall" section—which, as noted above, allows a court to set aside a judgment for "any other reason that justifies relief." TMS cites to United States v. Bouler, 927 F. Supp. 911 (W.D.N.C. 1996), for its position that Rule 60(b)(6) applies. In Bouler, the government failed to provide notice to the defendant's brother regarding the forfeiture of certain real property, despite that the brother held record title to the property. Id. at 912. The brother moved to intervene, seeking relief from the order of forfeiture. Id. The court concluded that the motion should be treated "as one to obtain relief from that order within the meaning of Rule 60(b)(6)," clarifying that "[s]uch motions must be made within a reasonable time and relief may be granted upon such terms as are just." Id. at 916. The court concluded that the motion to intervene, which was brought "as soon as he learned of the forfeiture order" was made within a reasonable time. Id. at 912, 916.
"Rule 60(b) vests wide discretion in courts, but we have held that relief under Rule 60(b)(6) is available only in 'extraordinary circumstances.' " Buck v. Davis, 580 U.S. 100, 123, 137 S.Ct. 759, 197 L.Ed.2d 1 (2017); see also Stevens, 676 F.3d at 67 (while Rule 60(b)(6) is a " 'grand reservoir of equitable power to do justice in a particular case' . . . that reservoir is not bottomless" (citation omitted)). As the Second Circuit has explained:
Recognizing Rule 60(b)(6)'s potentially sweeping reach, courts require the party seeking to avail itself of the Rule to demonstrate that "extraordinary circumstances" warrant relief. Of particular concern is that parties may attempt to use Rule 60(b)(6) to circumvent the one-year time limitation in other subsections of Rule 60(b).Id. (citations omitted and emphasis added); see also Kemp v. United States, 596 U.S. 528, 142 S. Ct. 1856, 1861, 213 L.Ed.2d 90 (2022) ("Rule 60(b)(6) provides a catchall for 'any other reason that justifies relief.' This last option is available only when Rules 60(b)(1) through (b)(5) are inapplicable."); Cf. United Airlines v. Brien, 588 F.3d 158, 176 (2d Cir. 2009) (claim was properly filed under Rule 60(b)(6), where the claim was "not easily categorized as 'mistake' or 'inadvertence' under Rule 60(b)(1)").
Recognizing this concern, we have found that Rule 60(b)(1) and Rule 60(b)(6) are "mutually exclusive," such "that any conduct which generally falls under the former cannot stand as a ground for relief under the latter." Where a party's Rule 60(b) motion is premised on grounds fairly classified as mistake, inadvertence, or neglect, relief under Rule 60(b)(6) is foreclosed.
Contrary to TMS's interpretation of Rule 60(b)(1), the plain language of that Rule does not limit relief to those instances where the mistake was made on the part of the movant—rather, that section refers to "mistake, inadvertence, surprise, or excusable neglect" generally with no limitations as to who made the mistake or caused the neglect. This stands in contrast to Rule 60(b)(3), for instance, where the statute expressly requires that the fraud, misrepresentation, or misconduct be committed by "an opposing party." Moreover, the Supreme Court recently examined the contours of Rule 60(b)(1) in Kemp, holding that a judge's error of law was a "mistake" within the meaning of Rule 60(b)(1), and that the Rule's language was not limited to mistakes made by the parties. 142 S. Ct. at 1861-62. In other words, mistake has a broad meaning under Rule 60(b)(1) and it is not limited to mistakes made only by the moving party, as TMS appears to argue.
The fact that the one-year limitation applies under Rule 60(b)(3) where an opposing party commits fraud or engages in misconduct or a misrepresentation seriously undercuts TMS's argument that it would be unjust to impose a one-year time limitation where the mistake was not TMS's fault.
Accordingly, TMS's position that Rule 60(b)(1) applies only in those instances where the mistake or neglect was the fault of the moving party is not supported by the law. What occurred in this instance—the government's failure to properly file the Notice in accordance with North Carolina law—is "fairly classified" or categorized as a mistake, Stevens, 676 F.3d at 67, and falls squarely within the ambit of Rule 60(b)(1).
TMS relatedly argues that "when courts have considered the applicability of Rule 60(b)(1), they have largely done so in situations where a defendant was a petitioner and had notice of the action." (Dkt. 59 at 6). However, there is no such qualifier in the text of Rule 60(b)(1), nor has the Second Circuit or the Supreme Court limited the rule in that manner. See, e.g., Kemp, 142 S. Ct. at 1863 ("The text does not support—let alone require—that judges engage in . . . complex line-drawing.").
The Court recognizes that in Bouler, the case principally relied on by TMS, the judge analyzed the motion under Rule 60(b)(6). But Bouler includes no meaningful discussion as to whether application of subsection (b)(1) would be appropriate. 927 F. Supp. at 916. Based upon the above, including the Supreme Court's recent ruling in Kemp—which takes an expansive reading of the term "mistake"—the Court finds that Rule 60(b)(1) governs TMS's motion. Accordingly, the one-year limitation imposed under Rule 60(c)(1) applies, and TMS's motion to set aside the final order of forfeiture is untimely.
B. Rule 60(b)(6)
1. Reasonable Time
Even if the Court concluded that Rule 60(b)(6) was the applicable subsection, it would still deny the motion given that it was not brought within a "reasonable time" which, as explained above, is required for relief sought pursuant to Rule 60(b)(6). The parties dispute what constitutes a reasonable time, with the government contending that 21 U.S.C. § 853(n)'s 30-day filing requirement should be used as a benchmark when determining whether the motion was filed within a reasonable time (see Dkt. at 51 at 9-10), and TMS arguing that what constitutes a reasonable time is based on " 'the particular circumstances of the case,' considering the reason for any delay, the possible prejudice to the non-moving party, and the interests of finality" (Dkt. 59 at 7). As explained above, TMS knew of the Notice by at least May 18, 2022, and it did not intervene in this case until September 6, 2022.
TMS's motion is silent as to when or how it learned of the forfeiture of the Sapphire Drive property. Since TMS acquired the property from Loanlenders of America on February 16, 2022, and commenced an action to quiet title in North Carolina state court on May 18, 2022, it is reasonable to conclude that TMS learned of the forfeiture sometime between February 16, 2022, and May 18, 2022.
In support of its argument, the government cites to United States v. Puig, wherein the Eighth Circuit affirmed the district court's denial of a Rule 60(b) motion, where the third-party waited until more than 30 days after receiving notice to intervene in the forfeiture proceeding. Puig, 419 F.3d at 704 ("Hance admits that he knew that the government had no intention of returning the property upon receipt of the May 13, 2003, letter, wherein the government severed its discussions with him and informed him of his right to file a petition for an ancillary proceeding. Yet, he filed nothing with the court challenging the government's forfeiture until July 7, 2003, well over 30 days after any of the dates discussed above." (citing § 853(n)(2)); see also Estevez, 845 F.2d at 1412 (on Rule 60(b) motion, date on which third-party "was adequately apprised of the extent of the interest sought by the government," was the date that "should be considered to commence the thirty-day period to file a claim under 21 U.S.C. § 853(n)"); United States v. $57,162 in U.S. Currency, No. 19-cv-7323 (AJN), 2020 WL 5802290, at *1-2 (S.D.N.Y. Sept. 29, 2020) (where government filed motion pursuant to Rule 60(b)(6) to vacate order of forfeiture because it failed to give individual from whom it seized money, which was furnished for or traceable to controlled substances, notice of forfeiture action, noting that "the Government's motion, which was made within a month of the entry of judgment in this case, was 'made within a reasonable time' ").
TMS argues that Puig is inapplicable, since that case "concerns a Rule 60(b)(1) motion, not a Rule 60(b)(6) motion." (Dkt. 59 at 8). However, pursuant to Rule 60(c)(1), motions brought pursuant to Rule 60(b)(1) and (b)(6) both must be filed within a reasonable time. Accordingly, Puig's discussion of what constitutes a reasonable time is relevant to Rule 60(b)(6).
Neither party cites to, nor has the Court found, any controlling Second Circuit case law addressing the meaning of "reasonable time" under these circumstances. However, as the government points out in its response papers, the Second Circuit has found that where a mistake is raised on a Rule 60(b) motion, the application must be brought within the relevant time to have appealed the order at issue. See, e.g., Int'l Controls Corp. v. Vesco, 556 F.2d 665, 670 (2d Cir. 1977) ("a motion for relief from . . . judicial mistakes under Rule 60(b)(1) may not be made after the time for appeal has elapsed, at least if the mistake alleged is of a substantive legal nature" (citation omitted)); see also In re Rochester Drug Coop., Inc., No. 20-20230-PRW, 2020 WL 6265066, at *2 (W.D.N.Y. Oct. 23, 2020) ("The well-settled law in the Second Circuit is that, while a mistake of law or fact by the trial court may be addressed by a motion brought under Rule 60(b)(1), the failure to file such a motion before passage of the deadline to appeal is fatal."). By analogy, 21 U.S.C. § 853(n)'s 30-day filing requirement helps inform the Court's determination of whether TMS filed its motion within a reasonable time. To that end, when viewing the four-month delay by TMS through the lens of the 30-day filing requirement, TMS's delay is particularly unreasonable.
The unreasonableness of TMS's delay in filing the current motion is further underscored by its actions in litigating the matter in North Carolina. As explained above, TMS was aware of the Notice at least as early as May 18, 2022, when it filed its action in North Carolina Superior Court. Rather than move pursuant to Rule 60(b) at that juncture, TMS filed a case in state court seeking a determination that it had superior interest in the Sapphire Drive property. Thereafter, when the case was removed to federal court in June 2022, TMS still delayed in filing a Rule 60(b) motion, and continued to litigate the removed case for months, until it voluntarily dismissed the case in September 2022. Only then—over 100 days later—did TMS move to set aside the final order of forfeiture. Cf. Bouler, 927 F. Supp. at 912 (third party sought to intervene in the forfeiture case "as soon as he learned of the forfeiture order"). Although TMS contends that it did not sit idle during the time the action was pending in North Carolina but was rather engaging in negotiations with the government, and it was permitted to file an action in North Carolina under Rule 60(d)(1) (see Dkt. 59 at 9), TMS cites no authority for the proposition that these facts somehow render the over 100 days that passed during that time to be reasonable. Nor does TMS address why it took those actions when it is "well settled" that 21 U.S.C. § 853(n) "provides the exclusive means by which a third party may lay claim to forfeited assets—after the preliminary forfeiture order has been entered." DSI Assocs. LLC, 496 F.3d at 183 (emphasis added). Accordingly, even if Rule 60(b)(6) was the applicable basis for the pending motion, the Court would conclude that TMS failed to timely file the motion.
2. Extraordinary Circumstances
Finally, even if the Court concluded that Rule 60(b)(6) was the applicable subsection, and that TMS brought its Rule 60(b)(6) motion within a reasonable time, the Court further concludes that the "extraordinary circumstances" standard is not met in this instance. See Kemp, 142 S. Ct. at 1861 (if Rules 60(b)(1) through (b)(5) are inapplicable and Rule 60(b)(6) applies, "[e]ven then, 'extraordinary circumstances' must justify reopening" (citation omitted)).
As explained above, the power to grant relief under Rule 60(b)(6) is "not bottomless," see Stevens, 676 F.3d at 67, and other than to make sweeping statements as to why denying its motion would "have a preposterous effect on real estate transactions" (see Dkt. 47-1 at 8), TMS has failed to carry its burden of articulating why the precise circumstances at hand are "extraordinary." While the government does not appear to dispute that the Notice was not indexed properly, it is not as if the government completely neglected to file the Notice as to the Sapphire Drive property. Cf. Bouler, 927 F. Supp at 912 (granting motion to intervene under Rule 60(b) where government "never provided any notice to [the third-party] about its intent to forfeit and dispose of that property"). Further, although TMS contends that the Notice was not indexed in the Iredell County Public Registry under Arriel Concepcion's name, the Notice clearly indicates the pending criminal case, given it includes the caption, United States of America v. Kevin Concepcion. Further, Arriel Concepcion's name is not absent from the Notice, which states that "the name of the person whose estate or interest is intended to be affected is: Arriel Concepcion." Accordingly, the Court does not find that sufficient "extraordinary circumstances" exist warranting the granting of TMS's Rule 60(b)(6) motion, a conclusion which is buttressed by the lack of vigilance on TMS's part in filing the motion. See Grace v. Bank Leumi Trust Co. of N.Y., 443 F.3d 180, 190 n.8 (2d Cir. 2006) ("Notably, a Rule 60(b)(6) motion requires 'extraordinary circumstances,' which 'typically do not exist where the applicant fails to move for relief promptly.' " (quoting 12 Moore's Federal Practice § 60.48[3][c])); see also United States v. Gallion, 534 F. App'x 303, 315 (6th Cir. 2013) ("[T]he relief provided by Rule 60(b) is equitable in character and to be administered upon equitable principles . . . [a]nd, equity aids the vigilant.") (alterations in original) (quoting Di Vito v. Fid. & Deposit Co. of Md., 361 F.2d 936, 939 (7th Cir. 1966)).
CONCLUSION
For the foregoing reasons, TMS's motion to set aside the final order of forfeiture (Dkt. 47) is denied.
SO ORDERED.