MEMORANDUM and ORDER
This case arises out of a civil forfeiture action brought by the United
States against Defendant vehicle, a 2001 Honda Accord EX VIN
#1HGCG22561A035829 ("the Honda"), for its alleged use in facilitating the
transportation and sale of methylene-dioxymethamphetamine (MDMA),
otherwise known as Ecstasy. (Doc. 1). The matter before the Court is
Claimant Kimberly A. Marckesano's ("Marckesano" or "Claimant") Motion for
Summary Judgment pursuant to Rule 56 of the Federal Rules of Civil
Procedure. The Motion has been fully briefed by the parties. A hearing
was held on this matter on January 22, 2003. The Motion for Summary
Judgment is ripe for disposition.
This Memorandum and Order will also address Claimant's Motion to Amend
the Pleadings pursuant to Rule 15 of the Federal Rules of Civil
Procedure. Claimant made this Motion during the hearing on the Summary
For the reasons stated herein, Claimant's Motion for Summary Judgment
is GRANTED and Claimant's Motion to Amend the Pleadings is GRANTED.
On October 19, 2001, Michael Mase ("Mase") attempted to deliver and
sell to an undercover Pennsylvania State Police Trooper one thousand
(1,000) tablets of Ecstasy in exchange for $9,000. (Doc. 15, at 1). Mase
drove the Honda, which is now the subject of the in rem proceeding, to a
designated location in Stroudsburg, Pennsylvania, to complete the
transaction. (Id.) Mase was immediately arrested upon showing to the
Trooper the tablets and Drug Enforcement Administration ("DEA") agents
seized the Honda. (Id., at 2). The tablets were confiscated and
laboratory analysis later confirmed that they were Ecstasy. (Id., at 1).
On November 27, 2001, a federal grand jury sitting in Scranton returned
an indictment that charged Mase with two counts of possession with intent
to distribute and distribution of Ecstasy in violation of
21 U.S.C. § 841(a)(1). On March 5, 2002, Mase pleaded guilty to Count
II of the Indictment. (Id., at 2).
The DEA commenced an administrative forfeiture action on December 5,
On or about February 26, 2002, Marckesano filed a Petition
for Remission or Mitigation of Forfeiture with the DEA, as well as a
Notice of Claim and Intent to Contest the Forfeiture Judicially. (Doc.
4). On May 16, 2002, the Government filed a Verified Complaint of
Forfeiture In Rem alleging that the Honda is subject to forfeiture
pursuant to 21 U.S.C. § 881(a)(4), in that it was a conveyance used to
transport or to facilitate the transportation, sale or possession of a
controlled substance. (Doc. 1).
Marckesano filed a Motion for Summary Judgment on September 30, 2002.
(Doc. 9). In this Motion, she asserts that as an "innocent owner," she is
entitled to recover the Honda. (Id.). In its supplemental brief, the
Government submits that summary judgment is improper since there is a
genuine issue in this case on two material facts: (1) legal ownership of
the vehicle; and (2) dominion and control over the vehicle. (Doc. 22).
A. SUMMARY JUDGMENT
In our analysis of this matter we keep in mind the various cases that
direct us regarding summary judgment. A motion for summary judgment can
be a very powerful motion. It is a legal method of totally resolving a
case without a trial based on a review of pleadings and submissions of
the parties. Granting summary judgment is appropriate in cases where
there are no significant facts in dispute. Because of the finality of
granting a summary judgment motion, we must carefully examine the case
and supporting documents along with the submissions from the Plaintiff
who hopes to keep his case alive. Federal Rule 56 is a mechanism for
"asses[ing] the proof in order to see whether there is a genuine need for
trial." Fed.R.Civ.P. 56(e) advisory committee's notes (amended 1963).
Summary judgment is somewhat controversial and can be seen as upsetting
the precarious balance between expediency and the preservation of our
Seventh Amendment*fn1 right to jury trial. Thus, we are vigilant
and careful not to use it to preclude a party's right to trial or as a
vehicle to simply move the case more quickly through the judicial system.
We follow considerable guidance in determining whether summary judgment
should be granted. Summary judgment is proper "if the pleadings,
depositions, answers to interrogatories, and admissions on file, together
with the affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to judgment as a
matter of law." See Knabe v. Boury, 114 F.3d 407, 410 n. 4 (3d Cir. 1997)
(citing Fed.R.Civ.P. 56(c)). "[T]his standard provides that the mere
existence of some alleged factual dispute between the parties will not
defeat an otherwise properly supported motion for summary judgment; the
requirement is that there be no genuine issue of material fact." Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 247-8, 106 S.Ct. 2505 (1986)
(emphasis in original).
These rules make it clear that in order for a moving party to prevail
on a motion for summary judgment, the party must show two things: (a)
that there is no genuine issue as to any material fact, and (b) that the
party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). This
instructs us that a fact is "material" if proof of its existence or
would effect the outcome of the lawsuit under the law
applicable to the case. Id. at 248; Levendos v. Stern Entertainment Inc.,
860 F.2d 1227, 1233 (3d Cir. 1988). We are further instructed that an
issue of material fact is "genuine" if the evidence is such that a
reasonable jury might return a verdict for the non-moving party.
Anderson, 477 U.S. at 257; Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586, 106 S.Ct. 1348 (1986); Hankins v. Temple
University, 829 F.2d 437, 440 (3d Cir. 1987); Equimark Commercial Finance
Co. v. C.I.T. Financial Services Corp., 812 F.2d 141, 144 (3d Cir.
Under this regimen that we follow, the Court is required to view the
evidence in the light most favorable to the non-moving party. Consistent
with this principle, the non-movant's evidence must be accepted as true
and all reasonable inferences must be drawn in the non-movant's favor.
J.F. Feeser, Inc. v. Serv-A-Portion, Inc., 909 F.2d 1524, 1531 (3d Cir.
1990). However, the non-moving party may not rest on the bare allegations
contained in his or her pleadings.
The Government asserts that the credibility of Claimant and her
witnesses raises factual issues which preclude summary judgment. In its
Second Supplemental Brief in Opposition to Claimant's Motion for Summary
Judgment, the Government properly argues that the Court should not make
pure credibility decisions at a hearing on summary judgment. (Doc. 27, at
1-2). The Government, in its own citations however, points out that an
opponent to a motion for summary judgment cannot prevail merely by
discrediting the credibility of the movant's evidence. (Id., at 2).
Rather, it must produce some affirmative evidence on point. The nonmoving
party is required by Federal Rule of Civil Procedure 56(e)*fn2
to go beyond the pleadings by way of affidavits, depositions, answers to
interrogatories or the like in order to demonstrate specific material
facts which give rise to a genuine issue. Celotex Corporation v.
Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548 (1986). When Rule 56(e) shifts
the burden of proof to the non-moving party, that party must produce
evidence to show the existence of every element essential to its case
which it bears the burden of proving at trial. Equimark Commercial
Finance Co. v. C.I.T. Financial Services Corp., 812 F.2d 141, 144 (3d
When the question for decision concerns drawing inferences from
undisputed evidence, or interpreting and evaluating evidence to derive
legal conclusions, a trial may not add to the Court's ability to decide.
Such is the case here.
B. CIVIL ASSET FORFEITURE REFORM ACT
On April 25, 2000, Congress passed the Civil Asset Forfeiture Reform
Act of 2000 ("CAFRA"), Pub.L. No. 106-185, 114 Stat. 202, to address
concerns associated with federal civil forfeitures. Since the Government
commenced this action after August 23, 2000, the date on which CAFRA
became effective, CAFRA applies to this case.
CAFRA overhauled the procedures for civil judicial forfeiture
proceedings. Significantly, the Government now has the burden of proving
by a preponderance of the evidence that the property is subject to
forfeiture. See 18 U.S.C. § 983(c)(1). Once the Government makes this
showing, the burden shifts to the claimant. The claimant may choose to
assert the "innocent owner defense."*fn3 See 18 U.S.C. § 983(d)(1).
"Innocent ownership" remains an affirmative defense, as it was under all
previously enacted forfeiture statutes, notwithstanding the fact that
CAFRA now shifts the initial burden to the Government in its
As a threshold matter, for the claimant to have standing*fn4 to assert
this defense, the claimant must prove by a preponderance of the evidence
that he or she has a legal interest in the property in accordance with
state property law. See 18 U.S.C. § 983(d). Under CAFRA,"Owner":
(A) means a person with an ownership interest in the
specific property sought to be forfeited, including
a leasehold, lien, mortgage, recorded security
interest, or valid assignment of an ownership
(B) does not include —
(i) a person with only a general unsecured interest
in, or claim against, the property or estate of
(ii) a bailee unless the bailor is identified and the
bailee shows a colorable legitimate interest in the
property seized; or
(iii) a nominee who exercises no dominion or control
over the property.
18 U.S.C. § 983(d)(6) (emphasis added).
In a case where the owner claims to have a pre-existing interest,
i.e., an interest that existed before the property was used in the
crime, § 983(d)(2)(A) provides: "the term `innocent owner' means an
owner who — (i) did not know of the conduct giving rise to
forfeiture; or (ii) upon learning of the conduct giving rise to the
forfeiture, did all that reasonably could be expected under the
circumstances to terminate such use of the property."
18 U.S.C. § 983(d)(2)(A).
There is no dispute in this case that the Honda was used by Mase to
facilitate the illegal transaction that took place on October 19, 2001.
As such, the Government has met its initial burden and has shown that it
had cause to commence the in rem forfeiture proceeding. See
18 U.S.C. § 983(c). Thus, the only way for Claimant to prevent the
forfeiture is to establish that she is an "innocent owner" under CAFRA.
1. OWNERSHIP UNDER STATE LAW
Pursuant to the framework set forth above, Marckesano must first prove
by a preponderance of the evidence that she has an ownership interest in
the Honda that existed at the time of the illegal
conduct which gave rise
to the forfeiture. See 18 U.S.C. § 983(d)(2)(A). The test of
ownership is determined by the law of the state in which the interest
arose. See U.S. v. One 1973 Rolls Royce, VIN SRH-16266 By and Through
Goodman, 43 F.3d 794, 806 n. 8 (3d Cir. 1994). Although the res is now
located in Pennsylvania, the Honda was purchased at a car dealership in
New York and registered in Tennessee.*fn5
The Government argues that Tennessee law governs Marckesano's ownership
interest in the Honda. We agree that Tennessee clearly has an interest in
having its laws applied in this case. Under the law of Tennessee, an
"owner" is "a person who holds the legal title of a motor vehicle. . . ."
Tenn. Code Ann. § 55-12-102 (2002). "Proof of the registration of [an
automobile] in the name of any person shall be prima facie evidence of
the ownership of the [automobile] by the person in whose name it is
registered." Tenn. Code Ann. § 55-10-312 (2002); see also Reece v.
State, 273 S.W.2d 475, 478, 197 Tenn. 383, 388 (Tenn. 1954) ("[P]roof of
such act is evidence from which it can reasonably be found that the
person in whose name the motor vehicle was registered was the owner
thereof on the date of the registration."). This statute creates a
rebuttable presumption. "In Tennessee, a certificate of title is not
conclusive evidence of automobile ownership." Smith v. Smith,
650 S.W.2d 54, 56 (Tenn.Ct.App. 1983) (cites omitted). In some cases, it
is the "intention of the parties, rather than the certificate of title,
[that] determines property rights in a vehicle."*fn6 Id.
Here, Claimant registered the Honda with the Tennessee Department of
Safety to obtain a Certificate of Title on August 24, 2001. (Doc. 10, at
Exhibit 17). The Certificate was issued on September 25, 2001. (Id.).
There is no indication that Marckesano attempted to, or even intended to
transfer title of the Honda to Mase. See Smith, supra. We therefore
examine the circumstances of this case in light of the statutory
The Government argues that Marckesano can not be considered an "owner"
pursuant to the Tennessee statute because the Honda is not registered in
her legal name, Claire P. Marckesano. (Doc. 27, at 4). During the
hearing, the Government spent a significant amount of time establishing
that Claimant maintained two identities with different social security
numbers and birth dates. Testimony revealed that Marckesano uses the two
names for different purposes. For example: Claimant's passport is under
the name "Claire P. Marckesano"; Claimant's driver's license is under the
name "Kimberly A. Marckesano"; Claimant's employment identification cards
use the names "Marckesano, Kim" and "Claire Kim P. Marckesano." The
Government questions Claimant's "`adoption' of the name Kimberly A.
Marckesano" and argues:
From the claimant's testimony, it is unclear whether
Kimberly A. Marckesano is another person whose
identity the claimant is using, or simply an alias the
claimant is using. In either case, claimant's
admissions at the hearing create a genuine issue as to
the validity of her ownership interest in the vehicle.
(Doc. 27, at 3-5).
The Government would have us convert this argument to testimony, when
as a matter of fact, there is absolutely no testimony in the case that
contradicts the Claimant's assertion that Kimberly A. Marckesano and
Claire P. Marckesano are one and the same person. Claimant testified that
when she first received her driver's license in New York State that, for
reasons she cannot explain, her initial driving permit incorrectly listed
her name as "Kimberly A. Marckesano" and listed an incorrect social
security number and birth date. She went on at great length, however, to
testify that she is actually the person named thereon, and that at times
she also uses the name Claire P. Marckesano and is known by all parties
to be the same person. Marckesano asserts that "[t]he alleged failure of
the Claimant to title the vehicle in her so-called legal name is not
dispositive of the Claimant's ownership claim." (Doc. 28, at 2). We
While it is true we should not make credibility determinations on
testimony proffered on a motion for summary judgment, we cannot simply
accept argument that one party makes regarding the testimony. A party
opposing a motion is required to produce some affirmative evidence and
cannot expect the Court to make derivative determinations from the
positive testimony offered in the case, simply on the basis of one party's
argument that the testimony may not be fully credible. It would be wrong
to make a determination "deciding" credibility, but it would be worse to
speculate about what a jury could decide.
The Government did not submit any evidence to prove that these two
identities are associated with two different women. Regardless of the
oddities, strangeness or uniqueness of the testimony in this case, there
is no evidence to suggest anything but the fact that "Kimberly A.
Marckesano" and "Claire P. Marckesano" refer to one individual: the
Claimant. There may have been credibility issues raised by the
testimony, but those issues impact on matters that are beyond the scope
of this inquiry. Accordingly, we find that the Honda's registration in
Claimant's name satisfies the statutory presumption of ownership under
2. DOMINION AND CONTROL
Under CAFRA, a "nominee" owner "who exercises no dominion or control
over the property" does not have standing to assert the "innocent owner"
defense. See 18 U.S.C. § 983(d)(6) (emphasis added). We are guided by
Pre-CAFRA law in our determination of whether Marckesano is a nominal
owner of the Honda. See One 1973 Rolls Royce, 43 F.3d at 806, n. 8 (cites
omitted) (holding that nominal or straw owners lack standing to contest
forfeiture); U.S. v. One 1990 Chevrolet Corvette, VIN No.
1G1YY3384L5104361, 37 F.3d 421, 422 (8th Cir. 1994) (cites omitted)
(denying claimant standing where she did not have the finances to pay for
the car and was unfamiliar with the car's features and controls); United
States v. One 1981 Datsun 280ZX, 563 F. Supp. 470, 475 (E.D.Pa. 1983)
(denying claimant standing even though car was titled in claimant's name
since the claimant's son paid for the car, drove the car more frequently
did the claimant, and was more likely "to suffer from the Datsun's
forfeiture"); United States v. One 1971 Porsche Coupe Auto., VIN
9111100355, 364 F. Supp. 745, 748 (E.D.Pa. 1973) (holding that claimant
was merely nominal owner since he made gift of car to his son who had
sole possession of the car and exercised dominion and control over it).
The Government contends that Marckesano was merely the nominal owner of
the Honda, while Mase, in fact, exercised "dominion and control" over the
vehicle. (Doc. 15, at 8). The Government offers as proof items apparently
belonging to Mase that were found in the car, including a notebook,
compact discs and academic calendars. (Id., at Exhibits 3-6).
Additionally, the Government relies on two receipts that show Mase had
twice changed the oil in the Honda during a period of less than one
month. (Id., at Exhibits 1-2). This evidence, according to the
Government, suggests that Mase drove the Honda on a regular basis during
the period of September 8, 2001, (the date of the first oil change) until
October 5, 2001, (the date of the second oil change). (Id., at 8-9).
Moreover, the Government argues that Mase held himself out as the true
owner of the Honda. The only evidence submitted by the Government
regarding this amounts to alleged statements made by Mase at the time he
was using the car. Mase testified that he was inclined to brag about his
ownership of certain possessions during the time he was involved in
selling drugs. More telling in this case is the fact that Mase testified
during the same period of time he was discussing matters with the agent
who testified on behalf of the Government, that he, Mase, had been using
drugs extensively. Mase has since been convicted of drug charges and is
presently serving time. All of this latter information concerning Mase
would lead one to discount almost entirely any statements he made during
the time he was under the influence of drugs, and particularly during the
time he was trying to induce the others, including the Government's
witness, to become involved in the drug business with him.
During the hearing on the Motion for Summary Judgment, Claimant
testimony's demonstrated that she was more than a nominal owner. No one
disputes the fact that Mase, rather than Claimant, had possession of the
Honda when it was seized on October 19, 2001. However, the testimony of
all parties in this case, including Mase, indicated that Claimant here
retained full dominion and control over the car and only allowed Mase to
use the car when he made a specific request for it. That included the
fact Claimant chose the model and options, bought the car with her own
funds, insured the car, used the car herself, and retained control over
the two set of keys to the Honda. It appears Marckesano intended that the
car would remain in her control and that anyone else who would use it,
would have to seek and receive her permission. All of this testimony is
The cases cited by the Government in the Second Supplemental Brief,
(Doc. 27), involved ownership, not of automobiles, but of monies that
were seized in forfeiture cases.*fn7 The discussion of an ownership
interest in the monies in those cases differs entirely from the fact
situation in this case. It is of no help in determining the ownership of
the vehicle involved in this matter, and certainly does not buttress the
Government's claim that there is a matter fact to dispute in this case.
While it is obvious that Mase drove the Honda on occasion, there is no
indication that Marckesano was a "nominee who exercised no dominion or
control over the property." We find that Marckesano has sufficient
interest in the Honda to satisfy this threshold inquiry and she has
standing to assert the "innocent owner" defense.
3. INNOCENT OWNER
In order for Marckesano to succeed on her "innocent owner" defense, she
must prove either that she did not know that the Honda was involved in
criminal activity or that she did all that could reasonably expect under
the circumstances to end the criminal use of the property, once she
learned about it. See 18 U.S.C. § 983(d)(2)(A).
Prior to the enactment of CAFRA in 2000, a claimant contesting the
forfeiture of a vehicle could assert the affirmative defense as set forth
in 21 U.S.C. § 881(a)(4)(C) (1994). That subsection stated: "no
conveyance shall be forfeited under this paragraph to the extent of an
interest of an owner, by reason of any act or omission established by
that owner to have been committed or omitted without the knowledge,
consent, or willful blindness of the owner." 21 U.S.C. § 881(a)(4)(C)
(1994), amended by 21 U.S.C. § 881 (2000). The burden is on the
claimant asserting the affirmative defense to prove absence of actual
knowledge. See One 1973 Rolls Royce, 43 F.3d at 810-11 (declaring that
actual knowledge can be "proven by inference from circumstantial
evidence"). This inquiry does not turn on the claimant's constructive
knowledge. See U.S. v. Premises Known as 2639 Meetinghouse Rd., Jamison,
Pa., 633 F. Supp. 979, 992 (E.D.Pa. 1986). Since the Third Circuit has
not yet addressed what constitutes "knowledge" under CAFRA, we will
continue to apply the "actual knowledge" test.*fn8
In Marckesano's Brief in Support of the Motion for Summary Judgment,
On October 19, 2001, Michael Mase asked Marckesano to
use her vehicle to drive his girlfriend to
Pennsylvania where she resided. Marckesano did not
know that Mase had arranged to deliver 1,000 ecstasy
tablets to an undercover trooper . . . Marckesano had
no knowledge that her son was trafficking in ecstasy
or any other controlled substance."
(Doc. 12, at 3). Additionally, Marckesano asserts: "Prior to October 19,
2001, [she] had no reason to believe Michael Mase was going to use her
vehicle in any alleged illegal activity." (Doc. 14, at 2).
The uncontradicted evidence supports Marckesano's contention that she
did know of the October 19, 2001, incident involving the sale of
Ecstasy. The Government has failed to prove any complicity on
Marckesano's part in Mase's illegal activities that would suggest she
knew that the Honda was being used in drug transactions. While the
Government finds suspect the manner in which the Honda and the options
were paid, there is no evidence to support any allegations of
Marckesano's involvement in the illegal activity.
The Government has failed to produce any proof to contradict the
evidence that Claimant has shown as far as the ownership of the Honda is
concerned, or with respect to Claimant's dominion and control over the
Honda. Claimant has proven by a preponderance of the evidence that she is
an innocent owner entitled to recover the Honda. Claimant's Motion for
Summary Judgment is GRANTED.
C. AMENDMENT OF PLEADINGS
During the hearing on Claimant's Motion for Summary Judgment, Claimant
made a Motion to Amend the Pleadings to Conform with the Evidence
pursuant to Rule 15(b) of the Federal Rule of Civil Procedure.*fn9
Rule 15(b) applies: "[w]hen issues not raised by the pleadings are tried by
express or implied consent of the parties." Fed.R.Civ.P. 15(b).
The rule contemplates amendments made during or after
trial, due to the emergence of novel issues not
covered in the operative pleadings. "The rule is
applicable only where it clearly appears from the
record that an issue not raised in the pleadings and
not preserved in the pretrial order has in fact been
tried and that this procedure has been authorized by
express or implied consent of the parties." Systems
Inc. v. Bridge Elec. Co., 335 F.2d 465, 466-67 (3d
Cir. 1964) (emphasis added). "Rule 15(b), however, is
limited to situations where the issue has been tried.
[Where] no trial has occurred, [the movant] can find
no solace in Rule 15(b)." Albanese v. Bergen County,
New Jersey, 991 F. Supp. 410, 421 (D.N.J. 1998).
Vosgerichian v. Commodore Intern. Ltd., 1998 WL 966026, *3 (E.D.
Pa. 1998), aff'd, 191 F.3d 446 (3d Cir. 1999). As in Vosgerichian, Claimant
made her Motion to Amend after the filing of a Motion for Summary
Judgment; there has been no trial in this case. Thus, she may not amend
the pleadings under Rule 15(b).
In the interests of justice, we shall construe Claimant's Motion to be
a request for leave of Court to Amend the Pleadings pursuant to
Rule 15(a). Under this Rule, a party may amend the pleadings within twenty
days after they are served.
Fed.R.Civ.P. 15(a). Since Claimant's motion
was brought after Rule 15(a)'s right to amend as a matter of course
expired, the amendment can be made "only by leave of court or by written
consent of the adverse party." Id.
The Supreme Court set forth a standard for courts to follow:
In the absence of any apparent or declared reason —
such as undue delay, bad faith or dilatory motive on
the part of the movant, repeated failure to cure
deficiencies by amendments previously allowed, undue
prejudice to the opposing party by virtue of allowance
of the amendment, futility of amendment, etc. — the
leave sought should, as the rules require, be `freely
Foman v. Davis, 371 U.S. 178, 182 (1962). Rule 15(a) has been liberally
interpreted in accordance with the principals of the Federal Rules. See
Coopersmith Bros., Inc. v. Stefko Boulevard Shopping Center,
30 F.R.D. 1, 2 (E.D.Pa. 1962). The decision whether to grant leave to amend is
within the sound discretion of the trial court. See Zenith Radio Corp.
v. Hazeltine Research, Inc., 401 U.S. 321, 330, 91 S.Ct. 795,
28 L.Ed.2d 77 (1971); Massarsky v. General Motors Corp., 706 F.2d 111, 125 (3d
Cir.), cert. denied, 464 U.S. 937, 104 S.Ct. 348 (1983).
In this case, Claimant seeks to amend all Pleadings to refer to herself
as "Kimberly A. Marckesano, a/k/a Claire P. Marckesano."*fn10 As
discussed at length in Section B, supra, the Government provided evidence
that showed Claimant utilizes two names, "Kimberly A. Marckesano" and
"Claire P. Marckesano," and that each name is associated with different
social security numbers and birth dates. Claimant admitted to this on
direct and cross examination, but she attempted to clarify when and why
she uses the different names.
The Government objected to Claimant's Motion to Amend on the grounds
that an amendment would permit Claimant to remove any taint on her
credibility that emerged during the hearing. Claimant, however, stated
that an amendment would merely have the effect of alleging that "Kimberly
A. Marckesano" and "Claire P. Marckesano" were the same person. Claimant
noted that the Government would still have the opportunity to prove that
Marckesano is not who she says she is, but the Government could not do so
by innuendo and inferences.
The Court must consider the merits of a proposed amendment of a
defective allegation before determining whether to grant leave to amend.
See Kiser v. General Elec. Corp., 831 F.2d 423, 427 (3d Cir. 1987),
cert. denied, 485 U.S. 906, 108 S.Ct. 1078, 99 L.Ed.2d 238 (1988). The
"touchstone question" in considering the motion to amend is "whether the
non-moving party will be prejudiced if the amendment is allowed." Howze
v. Jones Laughlin Steel Corp., 750 F.2d 1208, 1212 (3d Cir. 1984).
Prejudice in the context of Rule 15(a) "means undue difficulty in
prosecuting [or defending] a lawsuit as a result of a change in tactics or
theories on the part of the other party." Tarkett Inc. v. Congoleum
Corp., 144 F.R.D. 289, 291 (E.D.Pa. 1992) (quoting Deakyne v.
Commissioners of Lewes, 416 F.2d 290, 300 (3d Cir. 1969)). As stated
above, the two identities used by Claimant do not affect our
determination of whether there is a genuine issue of material fact which
would preclude summary judgment.
At this stage of the proceedings, the Court is unwilling to find that
amendment to the Claimant's Pleadings would be futile or serve no
legitimate purpose. Because the facts and circumstances relied upon by
the Claimant appear to be a proper subject for amendment, she ought to be
afforded an opportunity to do so. See Foman, 371 U.S. at 182.
Accordingly, Claimant's Motion to Amend the Pleadings is GRANTED.
An appropriate order follows.
NOW, this 30th day of January, 2003, it is hereby ORDERED that:
1. Claimant Marckesano's Motion for Summary Judgment,
pursuant to Rule 56 of the Federal Rules of Federal
Procedure is GRANTED.
2. Claimant Marckesano's Motion to Amend the
Pleadings, pursuant to Rule 15 of the Federal Rules of
Civil Procedure, is GRANTED.
3. Plaintiff shall permit Claimant to recover the
Defendant Vehicle from wherever it is being held
4. The Clerk of Court is directed to CLOSE this case.