The opinion of the court was delivered by: (Judge McClure)
In 2004, William J. Neidig ("William") was indicted for conspiracy to distribute controlled substances in violation of 21 U.S.C. § 846. Later that year, William pled guilty and agreed to forfeit a property located at 1347 West Mulberry Street, Coal Township, Pennsylvania. We entered a preliminary order of forfeiture and directed the government to provide public notice of the forfeiture. The government provided notice by publication in a newspaper in the county in which the property was located. The deadline for filing a claim to the property was May 13, 2005. On December 19, 2005, having received no claims to the property, we entered a final order of forfeiture.
On January 31, 2006, Charles Neidig, Jr. ("Charles"), the father of William, filed a "Motion for the Return of Seized Property" in which he sought the return of the seized property at 1347 West Mulberry Street that William had agreed to forfeit. (Rec. Doc. No. 472.) On February 7, 2006, we denied the motion because we concluded that Charles had not shown excusable neglect for his failure to file a timely claim and also found that his claim lacked merit. (Rec. Doc. No. 499.)
Charles appealed our February 7, 2006 order. On November 7, 2007, the Third Circuit vacated the order and remanded the case for further proceedings. Specifically, the Third Circuit found that although Charles had not presented any basis for a finding of excusable neglect in his motion with this court, his appeal raised several arguments that "might conceivably demonstrate excusable neglect" and that we denied his motion without providing Charles the opportunity to present these issues in a reply brief. United States v. Neidig, 253 Fed. Appx. 239, 241 (3d Cir. 2007). The Third Circuit also concluded that Charles' claim does not conclusively lack merit on its face because the criminal forfeiture statute would allow Charles to prevail if he had a legal right, title, or interest in the property that was superior to his son's, which would be governed by Pennsylvania law. Id.
Since the remand, we have sought and obtained counsel for Charles. On December 7, 2007, we ordered Charles to file a brief in support of his motion that addresses the excusable neglect issue as well as the merits of his claim. On May 15, 2008, Charles filed his brief. (Rec. Doc. No. 616.) An opposing brief has been filed and the time for filing a reply has passed. For the following reasons, we will deny Charles' motion.
Because Charles' motion was filed after the entry of the final order in this case, it shall be treated as a motion for relief from final judgment pursuant to Rule 60(b) of the Federal Rules of Civil Procedure. United States v. Neidig, 253 Fed.Appx. 239, 240 (3d Cir. 2007) (citations omitted). Rule 60(b) provides for such relief on the basis of, among other things, "mistake, inadvertence, surprise, or excusable neglect."
As alluded to in the Third Circuit's opinion, Charles contends that his motion should be entertained despite its untimeliness because of excusable neglect. (Rec. Doc. No. 616, at 4-5.) Specifically, he contends that the notice of forfeiture was published in a single newspaper, The Daily Item, and that the federal prison in which Charles is incarcerated does not subscribe to that publication. (Id.) Thus, it was impossible to know the existence and timing of the forfeiture proceedings. (Id.)
The test for excusable neglect requires the court to consider and weigh the totality of the circumstances. Nara v. Frank, 488 F.3d 187, 193-94 (3d Cir. 2007) (citation omitted). Specifically, we consider: 1) the danger of prejudice to the other party; 2) the length of the delay and its potential impact on judicial proceedings; 3) the reason for the delay and whether it was within the movant's control; and 4) whether the movant acted in good faith.
We believe these factors weigh against concluding that Charles had excusable neglect for his failure to timely file his objection to the forfeiture. Most importantly, we reject Charles' contention that he did not receive notice because the prison in which he is incarcerated did not subscribe to the newspaper in which the notice was published. Other evidence appears to establish that Charles was in fact aware of the forfeiture. For example, in his brief, Charles states that "promptly upon discovering the existence of the forfeiture proceedings, Charles made multiple good faith attempts, although fruitless, to obtain counsel and secure his interest in the Property." (Rec. Doc. No. 616, at 5.) Charles then cites to Exhibit A, which is a collection of documents which appear to be Charles' attempt to obtain legal counsel and file a lien on the property. (Rec. Doc. No. 612-2.) This exhibit contains a lien on the property that Charles attempted to file in the United States District Court for the Middle District of Pennsylvania, which was rejected as an improper filing because it was not a formal lawsuit. (Id. at 12-16, 18.) This attempt to file the lien is dated May 18, 2005. (Id. at 16.) Similarly, the letters written to various attorneys seeking legal assistance on filing a lien contain dates beginning with June 16, 2005. (Id. at 4.)
In the instant case, the deadline for filing a claim was May 13, 2005. On December 19, 2005, after receiving no claims on the property, we entered a final order of forfeiture. Yet, it was not until January 31, 2006 that Charles filed his motion. Although Charles' brief and his exhibit do not establish conclusively that Charles knew of the forfeiture prior to the May 13, 2005 deadline, at the very least he knew of it shortly thereafter on May 18, 2005 when he attempted to file a lien in the Middle District of Pennsylvania. Thus, while he may have had excusable neglect for failing to file a claim by our May 13, 2005 deadline, there is no excusable neglect for his filing a claim on January 31, 2006, which is more than half a year after he evidently became aware of the forfeiture proceedings and ...