Opinion
CASE NO. 8:09-CR-377-T-17TBM
11-14-2011
UNITED STATES OF AMERICA, Plaintiff, v. GILBERTO JESUS LIMA, Defendant.
ORDER
This cause is before the Court on:
Dkt. 63 Motion to Dismiss Third Party Petitioner's Claim
Dkt. 65 Response
Dkt. 73 Report and Recommendation
In the Report and Recommendation, the assigned Magistrate Judge recommends that the Motion to Dismiss Third Party Petitioner's Claim be granted. I. Background
The Court granted the Government's Motion for a Preliminary Order of Forfeiture for Substitute Assets (Dkt. 44), ruling that the Government was entitled to the forfeiture of two 401 (k) accounts, $25,028.40, held in the name of Defendant Gilberto Jesus Lima. Third Party Petitioner Clarissa Lima timely filed a claim on behalf of herself and her children for the release of their interest (50 %) in the 401 (k) accounts. The Government moved to dismiss Third Party Petitioner's Claim, to which Third Party Petitioner Clarissa Lima filed a response. The Court referred the Motion to Dismiss to the assigned Magistrate Judge to conduct a hearing, and for a Report and Recommendation. (Dkt, 66). A hearing was conducted on October 18, 2011 (Dkt. 72). II. Discussion
In the Report and Recommendation, the assigned Magistrate Judge found that Third Party Petitioner's allegations claiming the 401 (k) accounts as "marital assets" and joint property" by virtue of being named beneficiaries insufficient to state a claim to the forfeited property, and that Third Party Petitioner's allegations are insufficient to establish her standing to assert the claims. The assigned Magistrate Judge further notes that the 401 (k) accounts are solely in the name of CB&T as custodian for Gilberto J. Lima, and that Third Party Petitioner's status as a beneficiary gives Third Party Petitioner no vested claim or joint ownership under Florida law for purposes of establishing her standing. The assigned Magistrate Judge further found that Florida law does not support Third Party Petitioner's claim that the 401 (k) accounts are a marital asset, in this context. The assigned Magistrate Judge further notes that the children are contingent beneficiaries to one 401 (k) account, and have less a claim of interest than Third Party Petitioner, and Third Party Petitioner is not authorized to pursue a claim on behalf of her children.
The Court has independently reviewed the pleadings. No objections to the Report and Recommendation have been filed. After consideration, the Court adopts and incorporates the Report and Recommendation. Accordingly, it is
ORDERED that the Report and Recommendation is adopted and incorporated by reference. The Court grants the Motion to Dismiss Third Party Petitioner's Claim.
DONE and ORDERED in Chambers, in Tampa, Florida on this 14th of November, 2011.
ELIZABETH A. KOVACHEVICH
United States District Judge
Copies to:
All parties and counsel of record