After the U.S. District Court denied the government’s Motion to Reconsider its earlier dismissal of the claim to the Mask of Ka-Nefer-Nefer in the St. Louis Museum of Art, the government has tried another procedure to revive the case, one that is normally unremarkable. A review of the filings in the case raises the question, however, of whether that attempt is too late and the government’s only hopes now rest on an appeal. That is, the government may have promised the Court that it would file any request to file a new complaint of the sort it just did by no later than two weeks ago and missed its own self-imposed deadline.
The U.S. government has been trying to seize the Mask in what is called a civil forfeiture action, which is essentially what happens when someone allegedly brings an object into the United States in violation of customs laws. The U.S. alleges that the Mask was stolen before it was brought into the United States, which would be a violation of 19 U.S.C. § 1595a, among other laws. In a civil forfeiture case, the United States actually sues the object (hence the case United States v. Mask of Ka-Nefer-Nefer), and it is up to anyone claiming ownership (i.e., the St. Louis Art Museum) to file a claim to it. The burdens of proof for a claimant are more difficult than in a traditional civil lawsuit (e.g., Claimant v. Museum), and after the Second Circuit’s ruling last year in United States v. Davis, the good faith of the claimant is arguably irrelevant.
The District Court dismissed the civil forfeiture case earlier this year. The government filed on April 6, 2012 a “Motion for Enlargement of Time to File Motion for Reconsideration and/or to Seek Leave to File Amended Complaint Prior to Entry of Judgment.” A final judgment is the end of a case, but it is different than an order allowing a motion to dismiss, there is a short time gap between those two actions by the Court. If the District Court had entered final judgment, the District Court no longer has any jurisdiction to do anything (including change its mind), and the government would have been out of options other than an appeal.
Such a motion is a fairly routine occurrence. Once a case goes up on appeal, the losing party is fighting merely for the chance to start all over again, and even if successful that takes months or years. It is rare and it may seem odd to ask the same judge to second-guess herself, but sometimes a court can be convinced that an important fact was overlooked or even that it got the law wrong. Similarly, amending a complaint before substantial litigation is generally favored as a means to get to the substance of a case rather than start again after an appeal.
The April 6 motion asked for more time to seek the option to (a) ask the District Court to change its mind, or (b) ask for permission to file a new Complaint with different allegations that might defeat the motion to dismiss that had been allowed. The District Court allowed the April 6 motion for more time, and the government promptly moved the Court to reconsider its decision. Two weeks ago, the District Court denied that motion, declined to change the result, and set the deadline for filing the Notice of Appeal that initiates an appeal.
Now, the government is trying option (b), that is, asking for permission to amend the Complaint to include different allegations that, assumed to be true, the government believes would justify the claim as a matter of law (the government would still have to prove them, but the case would survive).
Here, again, one would expect leave to amend the complaint to be given. But looking back at the April 6, 2012 motion, the government requested at the time (emphasis added):
“That the Court withhold entry of judgment in the instant matter until May 7, 2012, or until such time as the Court has ruled on any motion for reconsideration or motion for leave to file an amended complaint that the United States may file within that time, whichever is later. . . .”
There is an argument to be made that the government asked for a delay in the entry of judgment only until May 7, 2012 (more than a month ago) or until a ruling on its motion for reconsideration (two weeks ago), and that it promised it would file any such motions within that time. That is to say, the government ran the risk by filing sequential motions that the motion for reconsideration would be denied before it sought leave to amend, but that it has now missed its own self-imposed deadline. The consequence of this could be either that the St. Louis Art Museum could ask for the immediate entry of judgment notwithstanding the motion, or simply argue that the Motion for Leave to File an Amended Complaint is untimely and should therefore be denied. Either way, the case would go up on appeal rather than proceed to the determination of the claims.
As always, stay tuned. . . .