UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

JOHN D. SMITH, )

)

Plaintiff, )

)

vs. ) Cause No. 2:16CV100-PPS

)

ATTORNEY GENERAL JEFF SESSIONS, )

)

Defendant. )

OPINION AND ORDER

After a long and tortuous route, John D. Smith’s remaining claim against

the federal government in this case is captured in his first amended

complaint against Attorney General Jeff Sessions, in which Smith seeks

monetary compensation for personal property seized from his home by

law enforcement agents in connection with Smith’s prosecution for drug

and firearms crimes.

Opinion and Order [DE 74 of 7/23/18.] That’s how I began the opinion dismissing

Smith’s amended complaint, issued more than a year ago, and more than three years

after Smith began his long pursuit of claims that he was entitled to the return of seized

property. In the underlying criminal case, a jury found Smith guilty of offenses

including possession with intent to distribute 5 or more kilos of cocaine and carrying

firearms during and in relation to drug trafficking crimes, and I sentenced Smith to a

mandatory minimum prison term of 40 years. [DE 138 in Cause No. 2:11CR53.] Smith’s

tortuous route grows longer still. Since the judgment was entered closing this case,

Smith has filed a motion for reconsideration [DE 76], which I denied [DE 77], and now a

motion to alter or amend the judgment, and for change of venue [DE 80]. 
My opinion dismissing Smith’s case explored several possible legal avenues for a

claim like Smith’s (the Tucker Act, the Federal Tort Claims Act, a claim under 31 U.S.C.

§3724(a), and a constitutional claim), and explained why Smith was unable to proceed

on any of these theories. [DE 77 at 2-5.] Smith’s new motion invokes Fed.R.Civ.P.

60(b)(1) and (b)(6), which authorize relief from a final judgment on grounds of “mistake,

inadvertence, surprise, or excusable neglect” in (b)(1), and “any other reason that

justifies relief” in (b)(6). 

In a section of his motion entitled “Joiner,” Smith explains that he “seeks to

present multiple violations against multiple defendants.” [DE 80 at 3.] With reference to

the caption he has used on the motion, Smith indicates he wants to now join as

defendants the United States, the Justice Department, and the Federal Bureau of Alcohol,

Tobacco, Firearms and Explosives, alleging that they are “liable for the orchestration

with the seizure, forfeiture, and illegally taking of his personal property in violation of

his Due Process Right and in violation of the Fourth Amendment.” [Id. at 4.] In

connection with this cast of new defendants, Smith seeks a change of venue for his

reinvigorated litigation, namely a transfer to the District Court for the District of

Columbia. [Id. at 4-5.] 

Smith’s motion offers no explanation why his failure to name these defendants

earlier results from mistake, inadvertence, surprise, excusable neglect, or any other

reason justifying relief so as to support another bite at the apple under Rule 60(b). Nor

does he explain why the presence of this new assortment of federal defendants would

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make any difference to the viability of his claims. Despite the explanation I gave for

dismissal of his latest complaint, Smith fails to affirmatively indicate the legal theory he

could now successfully proceed on, other than several sideways references in the past

tense to his earlier claim as being under the Tucker Act. [Id. at 4, 6.] I note that Smith

seeks transfer to the “District Court within the District of Columbia” though my

previous order explained that Tucker Act jurisdiction lies only in the Court of Federal

Claims. [Id at 4; DE 74 at 2.] 

That dismissal opinion stated: “So the Tucker Act claim will be dismissed for lack

of jurisdiction but the dismissal will be without prejudice so Smith may seek relief in the

Court of Federal Claims.” [Id.] Smith’s motion to reconsider filed last summer argued

that I had erred in failing to transfer this case to the Court of Federal Claims, and I

denied that motion, explaining that Smith had not characterized his claims as being

brought under the Tucker Act. [DE 77 at 3.] If Smith wishes to pursue a Tucker Act

claim before the Court of Federal Claims, the effort will require a separate case newly

filed in that court, rather than a belated transfer of this case, which has long been closed,

and as to which Smith does not demonstrate a basis for setting aside the judgment

pursuant to Rule 60(b).

Finally, Smith requests “a stay of the case, and equitable tolling of the appeal until

the matter before the court is resolved.” [DE 80 at 6.] There is no appeal pending in the

case. And if there were, the district court would lack the authority to stay those

proceedings.

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ACCORDINGLY:

Plaintiff John D. Smith’s motion to alter or amend the final judgment and for a

change of venue [DE 80] is DENIED.

SO ORDERED.

ENTERED: September 16, 2019

 /s/ Philip P. Simon 

UNITED STATES DISTRICT JUDGE

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