United States District Court, E.D. Michigan, Northern Division
ORDER DENYING MOTION TO AMEND PLEADINGS
L. LUDINGTON United States District Judge.
April 29, 2005, Berry was arrested by the Bay City Police
Agency for violating the terms of his probation by failing to
notify his agent of an address change. During the course of
the arrest, the Bay City Police Department seized property
belonging to him, including the following: (1) a 2001
Cadillac Deville; (2) a 1999 Ford Expedition; (3) a 2002
Chevrolet Monte Carlo; and (4) $429.00 in United States
concurrency. See ECF No. 2. Berry was found guilty
in Michigan state court for violating the terms of his
probation and sentenced to 7.5 years in prison in Case Number
the course of the arrest, the Bay City Police Department
discovered incriminating evidence including drugs, drug
paraphernalia, and firearms that gave rise to charges in this
Court. See United States v. Lee Henry Berry, Case
No. 05-20048 (E. D. Mich., Jan. 9, 2006). On September 10,
2007, Defendant Lee Henry Berry was convicted of possession
with intent to distribute less than 5 grams of cocaine base,
21 U.S.C. § 841(a)(1); possession with intent to
distribute 5 grams or more of cocaine base, 21 U.S.C. §
841(a)(1); possession with intent to distribute less than 500
grams of cocaine, 21 U.S.C. § 841(a)(1); and felon in
possession of one or more firearms, 18 U.S.C. §
922(g)(1). Id. at ECF No. 73. On December 21, 2007,
he was sentenced to a term of 360 months' imprisonment on
each count, to be served concurrent to each other, but
consecutive to the Michigan Department of Corrections
sentence for violating his probation. Id. at ECF No.
85. The judgment was affirmed on appeal to the Sixth Circuit.
Id. at ECF No. 101. Berry's subsequent
collateral attacks to his conviction and sentence were
denied. Id. at ECF Nos. 112, 147, 158.
October 17, 2016 Berry filed a motion pursuant to Federal
Rule of Criminal Procedure 41(g) for the return of the three
automobiles and $429.00 seized by the Bay City Police
Department. See ECF No. 1. Rule 41(g) permits a
person aggrieved by an unlawful search and seizure or the
deprivation of property to move for the property's
return. Such a motion “must be filed in the district
where the property was seized.” Id. On
November 14, 2016 the Government filed a response, arguing
that this Court does not have jurisdiction over the subject
property. See ECF No. 2. Attached to its response
the Government provided the Notice of Seizure, dated April
30, 2005, prepared by the Bay City Police Department listing
the property at issue. Id. at Ex. A. Based on the
certificate of service attached to the notice, Berry was
served with the notice on May 3, 2005. Id. Berry did
not provide any evidence that he timely filed a claim or
order dated December 13, 2016 Berry's motion was denied.
See ECF No. 4. The Court reasoned that it did not
have jurisdiction over the subject property because Berry had
not demonstrated that the federal government ever had actual
or constructive possession of the property or that the
property was seized by the local government at the direction
of the federal government. See United States v.
Copeman, 458 F.3d 1070, 1071 (10th Cir. 2006). Due to an
administrative error the order was not served on Berry until
January 6, 2017. In the meantime, on December 20, 2016 - over
a month after the Government filed a response - Berry filed a
reply to the Government's response. See ECF No.
5. Under Local Rule 7.1(e), Berry's reply should have
been filed within seven days of his receipt of the
Government's response. See E.D. Mi. L.R.
7.1(e)(2)(C). Even so, Berry's late reply does not
present any arguments that would have changed the Court's
on December 28, 2016 Berry filed a motion to amend his
pleadings to allege that the Government had possession of the
property. See ECF No. 6. Berry does not allege that
the Government had actual possession of the vehicles and
currency. Instead, he argues that the federal government
constructively possessed the property because it referred to
Berry's possession of the property at trial and possessed
videos and photographs of the property. This argument is
without merit. Neither possessing videos or photographs of
property, nor referencing of the existence of property has
any bearing on whether the federal government actually or
constructive possessed the property itself. Without
any allegation that the Government actually or constructively
possessed the property this Court does not have jurisdiction
over the property.
even assuming arguendo that the federal government had
possession of the property, Berry would not be entitled to
any relief because the State of Michigan afforded Berry an
adequate remedy at law to recover the property. See Brown
v. United States, 692 F.3d 550 (6th Cir. 2012) (holding
that a movant was not entitled to equitable relief under Rule
41(g) where she had ignored an adequate remedy provided by
law); Copeman, 458 F.3d at 1072 (holding that Rule
41(g) is an equitable remedy available only where a movant
“can show irreparable harm and an inadequate remedy at
law.”); Clymore v. United States, 164 F.3d
569, 571 (10th Cir. 1999) (holding that when “state
avenues of relief [are] open to [the movant], he cannot show
an inadequate remedy at law.”).
Berry has not met his burden of showing actual or
constructive possession of the relevant property by the
United States, and because Berry had an adequate remedy at
law in the courts of the State of Michigan, his motion to
amend his pleadings will be denied. This is a final order and
closes the case.
it is ORDERED that Berry's motion to amend pleadings, ECF
No. 6, is DENIED.
 While not raised by the Government,
Berry's claim is also barred by the doctrine of laches.
Dismissal of a claim on the ground of laches requires (1) an
unreasonable and unexcused delay in bringing the claim, and
(2) material prejudice as a result of the delay. A.C.
Aukerman Co. v. R.L. Chaides Construction Co., 960 F.2d
1020, 1028 (Fed. Cir. 1992) (en banc). Based on the Notice of
Seizure, Berry had notice that his property had been seized
for over a decade before bringing his 41(g) motion. This
delay is unreasonable and inexcusable given the facts of this
case. See Carter v. United States, 160 F.Supp.2d
805, 815 (E.D. Mich. 2001) (finding a delay of over six years
unreasonable, inexcusable, ...