United States District Court, D. Connecticut
ORDER ON ERNESTO QUINONES' MOTION TO DISMISS AND
MOTION TO STAY EXECUTION OF FORFEITURE PENDING
R. Underhill, United States District Judge.
Quinones, Claimant, has filed a Motion to Stay Execution of
the Forfeiture Pending Appeal, Doc. No. 43, and a Motion to
Dismiss, Doc. No. 46. Because those motions are untimely,
both motions are denied.
Standard of Review
“Under Rule 12(b)(5), a party may file a motion to
dismiss due to insufficiency of service of process.”
Rzayeva v. United States, 492 F.Supp.2d 60, 74 (D.
Conn. 2007). “A motion to dismiss pursuant to Rule
12(b)(5) must be granted if the plaintiff fails to serve a
copy of the summons and complaint on the defendants pursuant
to Rule 4 of the Federal Rules, which sets forth the federal
requirements for service.” Id. (citing
Cole v. Aetna Life & Cas., 70 F.Supp.2d 106, 110
(D. Conn. 1999)). “Once validity of service has been
challenged, it becomes the plaintiff's burden to prove
that service of process was adequate.” Id.
(internal quotation marks omitted).
Quinones was arrested on April 7, 2015. Compl., Doc. No. 1,
at ¶¶ 27, 30. On May 24, 2017, he pleaded guilty to
Sale of Narcotics or Hallucinogens other than Marijuana in
Connecticut Superior Court and was sentenced to a six-year
prison term. See Connecticut Superior Court Docket
No. KNL -CR15-0329030-T, located at
(last viewed May 2, 2019). The Government filed a Verified
Complaint of Forfeiture against the real property located at
115 Blinman Street, New London, Connecticut (“Defendant
Property”) on November 9, 2015. See Compl.,
Doc. No. 1. While incarcerated at Corrigan Radgowski
detention facility, before being transferred to Osborn
Correctional Institution, Ernesto Quinones received service
of the complaint via certified mail, which was delivered on
December 15, 2015. Doc. No. 5. Almost six months later, on
June 28, 2016, after Ernesto Quinones failed to file an
appearance or to file any other motion or pleading, the
Government filed a motion for Default Entry 55(a) against
Ernesto Quinones. Doc. No. 8. On August 8, 2016, pursuant to
Federal Rule of Civil Procedure 55(b), the Government filed a
Motion for Default Judgment against Ernesto Quinones. Doc.
No. 13. The Court granted the Government's motion for
Default Judgment against Ernesto Quinones on October 6, 2016.
Doc. No. 14. On January 18, 2018, more than one year after
entry of the Default Judgment against Ernesto Quinones, the
Government filed a Motion for Partial Decree of Forfeiture
regarding Ernesto Quinones' one-half interest in the
Defendant Property. Doc. No. 22. The Court entered a partial
decree of forfeiture for Ernesto Quinones' interest in
the Defendant Property on January 19, 2018. Doc. No. 23. On
February 28, 2018, the Partial Decree of Forfeiture was filed
on the New London Land Records. See Doc. No.
2018000678, City of new London Online Document Search,
(last viewed May 2, 2019).
Quinones has filed multiple motions objecting to the
forfeiture of his one-half interest in the Defendant Property
but has never claimed, until now, that he did not receive
timely notice of this federal civil judicial forfeiture
action. In addition, he does not recognize that the District
Court entered a Partial Decree of Forfeiture against his
one-half interest in the Defendant Property on January 19,
2018, forfeiting his interest to the United States.
See Doc. No. 23.
to Rule 4(a)(1)(B) of the Federal Rules of Appellate
Procedure, Ernesto Quinones had 60 days to file a Notice of
Appeal in accordance with Rule 4(c) of the Federal Rules of
Appellate Procedure. To be timely, Ernesto Quinones had to
file a Notice of Appeal on or before March 20, 2018. More
than a year later, Ernesto Quinones filed several untimely
motions to the District Court, including a Motion to Stay
Execution of the Forfeiture Pending Appeal, Doc. No. 43, and
a Motion to Dismiss, Doc. No. 46.
both of Ernesto Quinones' untimely motions are denied.
foregoing reasons, the Motion to Dismiss and the Motion to
Stay Execution of the ...