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U.S. v. MISCELLANEOUS FIREARMS

June 8, 2001

UNITED STATES OF AMERICA, PLAINTIFF,
v.
MISCELLANEOUS FIREARMS, EXPLOSIVES, DESTRUCTIVE DEVICES AND AMMUNITION, DEFENDANTS.



The opinion of the court was delivered by: Mills, U.S. District Judge:

OPINION

This is a peripheral sequel to United States v. Fleischli, 119 F. Supp.2d 819 (C.D.Ill. 2000).

More specifically, it is a civil forfeiture action.

I. BACKGROUND

On August 11, 1998, agents of the Bureau of Alcohol, Tobacco & Firearms ("ATF") seized firearms and ammunition from the home of Joseph and Donna Fleischli at 1119 South MacArthur and from Mr. Fleischli's business at 1905 East Washington. Various explosives and other items were also seized from Mr. Fleischli's business.
On October 16, 1998, Donna Fleischli — the Claimant here — timely filed a claim as to nearly all of the seized items. The ATF requested that Claimant execute a Bond for Costs and a Power of Attorney and also inquired as to which firearms she was claiming. By letter dated March 1, 1999, the ATF received the requested information. However, because the Bond for Costs was incomplete, the ATF requested by letter on April 29, 1999, that Claimant properly complete and execute the form.
The ATF received all of the necessary information by May 20, 1999. It was then that it referred the matter to the United States Attorney's Office for initiation of a judicial action to enforce the forfeiture of property. The forfeiture action was filed on February 8, 2000.
The cause is now ripe for a ruling on Claimant's motion for partial summary judgment.

II. SUMMARY JUDGMENT STANDARD

Summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The movant must point out those parts of the record which demonstrate the absence of any genuine issue of material fact. See Catrett, 477 U.S. at 323. In deciding a motion for summary judgment, the record is viewed in favor of the non-moving party and all reasonable inferences are to be drawn in favor of that party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

III. ANALYSIS

A. Local Rule 7.1(D)

Before proceeding to a discussion of the merits, the Court will discuss the local rule that pertains to summary judgment motions. The applicable local rule provides that "[a]ll motions for summary judgment, responses and replies shall comply with the requirements of this rule." Local Rule 7.1(D). It further provides that any filings that do not so comply shall be stricken by the Court. See id.
Claimant submitted her allegedly undisputed material facts along with her motion for summary judgment. Local Rule 7.1(D)(2) provides the procedure for responding to a motion for summary judgment. Specifically, any party opposing the motion must (1) list and number any fact which is conceded to be undisputed and material; (2) list by number any fact which is claimed to be disputed; (3) list by number any fact which is claimed to be immaterial to the motion; and (4) list and number any additional material fact raised in opposition to the motion. See Local Rule 7.1(D)(2)(b). The Government has failed to comply with the requirements of the local rule by not responding to Claimant's allegedly undisputed material facts and by not asserting any additional material facts to defeat Claimant's motion.
As the Court earlier noted, Claimant has submitted a list of material facts which she alleges is not in genuine dispute. Most of the allegedly undisputed material facts concern the items that were seized on August 11, 1998, and whether they constitute "firearms," "ammunition," or "explosives." Summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); Catrett, 477 U.S. at 322. Unless the non-movant responds to the movant's allegedly undisputed material facts, it is very difficult for the Court to determine if there is a "genuine issue as to any material fact" and therefore whether summary judgment is appropriate. However, there appear to be only two bases for the instant motion: (1) the forfeiture action was not timely filed; and (2) some of the items seized do not constitute "explosives" or "explosive materials." Thus, in the interest of judicial economy, the Court will attempt to determine if there is a genuine issue as to any material fact on the basis of the record.

B. Timeliness

The complaint in this action asserts that the forfeiture of firearms and ammunition is based upon 18 U.S.C. § 924(d)(1) and 26 U.S.C. § 5872. Section 924(d)(1) provides in pertinent part:
[a]ny firearm or ammunition involved in or used in any knowing violation of subsection . . . (g) . . . [or] . . . (j) . . . of section 922 . . . or willful violation of any other provision of this chapter . . . shall be subject to seizure and forfeiture . . . and all provisions of the Internal Revenue Code of 1986 relating to the seizure, forfeiture, and disposition of firearms . . . shall, so far as applicable, extend to seizures and forfeitures under the provisions of this chapter. 18 U.S.C. § 924(d)(1).

Section 5872(a) provides in relevant part that "[a]ny firearm involved in any violation of the provisions of this chapter shall be ...


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