United States District Court, E.D. Louisiana
ORDER AND REASONS
the Court is Claimant Mary Smith's “Motion for
Reconsideration of Court's Order and Reasons.” Rec.
Doc. 474. The Government timely filed an
opposition. Rec. Doc. 477. Claimant then sought, and
was granted leave, to file a reply. Rec. Doc. 481. For the
following reasons, IT IS ORDERED that the
motion (Rec. Doc. 474) is DENIED.
BACKGROUND AND PROCEDURAL HISTORY
discussed previously in the Order and Reasons (Rec. Doc.
470), Claimant asserted an interest in the property located
at 536-38 South Broad Street. That property was ordered
forfeited to the United States on August 25, 2017, in a
Preliminary Order of Forfeiture issued in conjunction with
Defendant Rufus Johnson's sentencing. See Rec.
Doc. 417. Claimant conceded that she sold the property to
JaRuVa, Inc., in 2002, but alleged that she remained the true
owner of the property because the purchase price was never
paid. Rec. Doc. 446-1 at 2-3. Claimant sought to initiate an
ancillary proceeding to assert her allegedly superior
interest in the property. See Rec. Doc. 446, 446-1.
Claimant failed to state a claim upon which relief could be
granted, the Court granted the Government's motion to
dismiss. See Rec. Doc. 470. The Court
identified two independent grounds for dismissing
Claimant's request to start an ancillary proceeding: (1)
the sales contract contradicted Claimant's allegation
that she never received payment for the property, and (2)
Claimant pled no facts to suggest that she could otherwise
assert a superior interest in the property via a petitory
action. See Id. at 3-9. Claimant then filed the
instant motion for reconsideration, arguing that a recently
submitted affidavit warrants starting an ancillary proceeding
because the affiant did not see Claimant receive the sales
price when the contract was signed. See Rec. Docs.
brings her motion for reconsideration under Federal Rule of
Civil Procedure 60(b)(2). See Rec. Doc. 481 at 2-4. Rule
60(b)(2) allows relief when a party offers “newly
discovered evidence that, with reasonable diligence, could
not have been discovered” within twenty-eight days of
the challenged order being issued. “To succeed on a
motion brought under 60(b)(2) based on newly discovered
evidence, the movant must demonstrate (1) that it exercised
due diligence in obtaining the information and (2) the
evidence is material and controlling and clearly would have
produced a different result if presented before the original
judgment.” N.H. Ins. Co. v. Martech USA, Inc.,
993 F.2d 1195, 1200-01 (5th Cir. 1993).
fails to carry her burden. First, Claimant offers no
explanation for why she failed to produce the affidavit
within twenty eight days after the Order and Reasons was
issued. This makes it impossible for the Court to analyze
whether Claimant exercised due diligence in obtaining the
affidavit. See Fed. R. Civ. P. 60(b)(2);
Gov't Fin. Servs. One Ltd. v. Peyton Place,
Inc., 62 F.3d 767, 770-72 (5th Cir. 1995). Because
Claimant has the burden to show that reconsideration is
warranted, failure to establish that Claimant exercised due
diligence is a sufficient basis on which to deny
Claimant's motion. See Gov't Fin. Servs., 62
F.3d at 770-72.
the affidavit does not suggest that it was error to grant the
Government's motion to dismiss. The affidavit merely
corroborates Claimant's allegation that she did not
receive payment when the sales contract was executed.
See Rec Docs. 446-1 at 2-3; 481 at 8-9. However,
Claimant's representation in the sales contract is
broader than the affidavit's denial. Claimant swore that
she had already received and acknowledged payment when the
sales contract was executed, not that payment was exchanged
at that very moment. See Rec. Doc. 446-4 at 7.
Therefore, the affidavit does not account for any time prior
to execution of the sales contract when Claimant may have
received payment without the affiant's knowledge.
the affidavit does nothing to rebut the second, independent,
basis for granting the Government's motion to
dismiss-that a buyer's failure to pay the purchase price
does not render void an otherwise valid sales contract.
See Rec. Doc. 470 at 6-7. As explained in the Order
and Reasons, even if Defendant failed to pay the purchase
price as the affidavit states, Claimant's only
potentially viable claim to an interest in the property is
via a petitory action pursuant to Article 3651. See
Id. at 8-9. In this action, Claimant would need to prove
that, after selling the property to Defendant, she acquired a
superior ownership interest. See Morein v. Acme Land
Co., 15-135, p. 10 (La.App. 3 Cir. 6/3/15); 166 So.3d
1227, 1235). The affidavit does not advance such an argument
because it offers no information about Claimant's
relationship to the property after Claimant signed the sales
contract. See Rec. Doc. 470 at 8-9 (explaining the
types of facts Claimant would need to plead to state a
petitory action). Therefore, the affidavit is not
“likely to have produced a different result.”
N.H. Ins., 993 F.2d at 1201.
 The Court set Claimant's motion
for submission on January 24, 2018. See Rec. Doc.
475. The Government's opposition was due by January 17,
2018. See id.
 The full description of the property,
as described in the Preliminary Order of Forfeiture (Rec.
Doc. 417) follows. “Property currently recorded in the
name of R.H.J. Entertainment, LLC and described as follows:
All buildings and improvements thereon a certain lot or
portion of ground, together with all the buildings and
improvements thereon, and all of the rights, ways,
privileges, servitudes, appurtenances and advantages
thereunto belonging or in anywise appertaining, situated in
First District of the City of New Orleans, in Square 585,
bounded by S. Broad, Gravier, South Dorgenois Streets and
Tulane Avenue, designated as Lot 22-A on a survey made by
Gilbert & Kelly, Surveyors, dated June 10, 1950, a blue
print is attached to act before Rene' Lehmann, Notary
Public, dated July 3, 1950, according to which said lot
measures thirty feet (30') front on S. Broad Street, the
same width in the rear, by a depth between equal and parallel
lines of one hundred eighty one feet, one inch, three lines
(181'1”3”'). Said lot No. 22-A commences
at a distance of one hundred twenty two feet, three inches,
seven lines (122'3”7”') from the corner
of Gravier Street and South Broad Street, subject to
restrictions, servitudes, rights-of-way and outstanding
mineral rights of record affecting the property. ...