UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF NEW HAMPSHIRE

United States of America

v. Civil No. 06-CV-329-JD

Opinion No. 2008 DNH 010

Portions of $3,300,333.02

More or Less In Proceeds from

the Sale of The Lakes Region 

Greyhound Park

O R D E R

Denise Hart, a claimant to a portion of proceeds from a sale

of property seized by the United States, brings a motion to

dismiss the claims of Kenneth and Lisa Hart. Kenneth and Lisa

Hart have filed an objection. 

Background

On September 6, 2006, the United States filed a verified

complaint, pursuant to 18 U.S.C. § 981(a)(1)(A), the Civil Asset

Forfeiture Reform Act (CAFRA), for forfeiture in rem of

$3,300,333.02, in proceeds from the sale of The Lakes Region

Greyhound Park (“proceeds”), property seized because of illegal

acts committed by Richard Hart. On December 26, 2006, the

government served the complaint on various parties. As a result,

pursuant to Rule C(6) of the Supplemental Rules for Admiralty or 

Case 1:06-cv-00329-JD Document 44 Filed 01/17/08 Page 1 of 7
1Because civil forfeiture is an in rem proceeding, the

property subject to forfeiture is the defendant and the plaintiff

is the United States. United States v. One-Sixth Share of James

J. Bulger, 326 F.3d 36, 40 (1st Cir. 2003). “Defenses against

the forfeiture can be brought only by third parties, who must

intervene” by filing a claim to the property. Id. The

Supplemental Rules, effective December 2006, govern this type of

action. See 18 U.S.C. § 981(b)(2). The Supplemental Rules

provide that the general rules of the Federal Rules of Civil

Procedure apply to actions in rem except to the extent that they

are inconsistent with the Supplemental Rules. Supplemental Rule

A.

2

Maritime Claims and Asset Forfeiture Claims, several parties

filed claims related to this property.1

On January 17, 2007, Denise Hart, Richard’s wife, filed a

claim for 16.666% of the distribution proceeds from the sale of

the seized property. On January 18, 2007, Joan Hart, Richard’s

mother, filed a claim for 33.33% of the proceeds and on the same

day, Allan Hart, Richard’s uncle and Joan Hart’s business

partner, filed a claim for 10% of the proceeds. On January 19,

2007, Vincent DiCesare, a business partner of Allan Hart and Joan

Hart, filed a claim for 40% of the proceeds. On January 26,

2007, Kenneth Hart, Richard’s brother, and Lisa Hart, Kenneth’s

wife, filed a claim for 29.834% of the proceeds. Kenneth and

Lisa Hart claim the 29.834% interest as assignees of Joan Hart

and beneficiaries of a constructive trust held by Joan Hart. 

Kenneth and Lisa Hart’s claim competes directly with Joan Hart’s

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2Third party claimants “are akin to intervenor-defendants

whose claims constitute defenses to the forfeiture actions.”

United States v. 74.05 Acres of Land, 428 F. Supp. 2d 57, 60 n.2

(D.Conn. 2006). Therefore, Federal Rule of Civil Procedure

12(f), which provides that a court “may order stricken from any

pleading any insufficient defense,” may be the proper basis to

challenge a defense to a forfeiture. See id.; see also United

States v. $598,826, 2007 WL 2713367, at *5 (E.D.N.Y. September

13, 2007). “The standard of review for a 12(f) motion is

identical to that of a 12(b)(6) motion,” and for this reason,

whichever standard is used, the court will reach the same result.

Id.

3

claim to the 33.33% of the proceeds but does not overlap with

Denise Hart’s claim to 16.666% of the proceeds. 

Standard of Review

In considering a motion to dismiss, the court “take[s] as

true all well-pleaded allegations and draw[s] all reasonable

inferences in the plaintiff's favor.”2 Ezra Charitable Trust v.

Tyco Int'l, Ltd., 466 F.3d 1, 5-6 (1st Cir. 2006). The claimant,

however, "must allege 'a plausible entitlement to relief.'" 

Rodriguez-Ortiz v. Margo Caribe, Inc., 490 F.3d 92, 95 (1st Cir.

2007) (quoting Bell Atl. Corp. v. Twombly, 127 S. Ct 1955, 1967

(2007)). The court need not accept a claimant’s assertion that a

factual allegation satisfies an element of a claim, however, “nor

must a court infer from the assertion of a legal conclusion that

factual allegations could be made that would justify drawing such

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3Pursuant to Supplemental Rule G(8)(c)(i)(B), “[a]t any time

before trial, the government may move to strike a claim or answer

because the claimant lacks standing.” The Supplemental Rules do

not contemplate a claimant’s motion to dismiss another claim to

the seized property. 

4Kenneth and Lisa also argue that Denise Hart’s motion is

brought in bad faith, and for this reason, in their objection,

they have requested sanctions pursuant to Federal Rule of Civil

Procedure 11. “A motion for sanctions must be made separately

4

a conclusion.” See Cordero-Hernandez v. Hernandez-Ballesteros,

449 F.3d 240, 244 n.3 (1st Cir. 2006).

Discussion

On June 19, 2007, claimant Denise Hart filed a motion to

dismiss the claims of Kenneth and Lisa Hart, based on Federal

Rule of Civil Procedure 12(b)(6), for failure to state a claim. 

In her motion, Denise Hart also argues that Kenneth and Lisa Hart

do not have standing to proceed in this case and that res

judicata bars their claims. Joan Hart, Alan Hart, and Vincent

DiCesare assented to Denise Hart’s motion to dismiss, but they

did not join. The United States did not object to the motion and

did not join.3 Kenneth and Lisa Hart object to Denise Hart’s

motion to dismiss on the merits, and they also argue that Denise

Hart does not have standing to dismiss their claim because

Denise’s claim is unaffected by and does not overlap with their

claim.4

Case 1:06-cv-00329-JD Document 44 Filed 01/17/08 Page 4 of 7
from any other motion and must describe the specific conduct that

allegedly violates Rule 11(b).” Fed. R. Civ. P. 11(c)(2). In

this case, Kenneth and Lisa Hart have not filed a separate

motion. Therefore, the request for sanctions in their opposition

to the motion to dismiss is not appropriate. Pioneer Capital

Corp. v. Environamics Corp., 2003 WL 345349, at *1, n.1 (D.Me.

February 14, 2003).

5

"Standing is a threshold consideration in all cases,

including civil forfeiture cases." United States v. One-Sixth

Share of James J. Bulger, 326 F.3d 36, 40 (1st Cir. 2003). 

Standing in such cases has constitutional, prudential, and

statutory aspects. See United States v. Union Bank for Sav. &

Inv. (Jordan), 487 F.3d 8, 22 (1st Cir. 2007). As to

constitutional standing, “[i]t is well established that a party

seeking to challenge a forfeiture of property must first

demonstrate an ownership or possessory interest in the seized

property in order to have standing to contest the forfeiture.”

United States v. 116 Emerson St., 942 F.2d 74, 78 (1st Cir.

1991). Constitutional standing is “very forgiving,” as claimants

need only show that they have a “colorable” ownership interest in

the property. One-Sixth Share, 326 F.3d at 41.

In addition to these Article III prerequisites, the

“prudential standing doctrine encompasses . . . ‘the general

prohibition on a litigant's raising another person's legal

rights.’” Union Bank, 487 F.3d at 22 (quoting Allen v. Wright,

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6

468 U.S. 737, 751 (1984)). Accordingly, in the context of civil

forfeiture, “prudential concerns limit [a claimant’s] ability to

. . . challenge . . . the forfeiture of funds of which it is not

a statutory owner.” Id.; see also 1 D.B. Smith, Prosecution and

Defense of Forfeiture Cases §9.04(2)(a)(2004)(“[i]f a claimant

avers a right to only a portion of the arrested property, his or

her claim must be limited to that interest. The claimant may not

defend against allegations in the complaint that do not affect

the claimed interest.”); compare United States v. One Parcel of

Real Prop. & Improvements, Located at 1100 Peeler Ave., 2007 WL

4289692, at *4 (M.D.Ga. December 3, 2007) (where claimant

attempted to assert an affirmative defense on behalf of another

claimant in the proceeding, court would not address the defense

because claimant could not “raise this defense on behalf of

another party”); with United States v. 392 Lexington Parkway S.,

386 F. Supp. 2d 1062, 1071-1072 (D. Minn. 2005)(where two

mortgagees to seized property had adverse interests because of a

dispute as to which mortgage was recorded first, each had

standing to file cross motions for summary judgment against the

other).

Here, Denise Hart has filed a claim for 16.666% of the

proceeds from the sale of the seized property, and she may only

defend against or challenge those claims to the seized property

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7

that affect her claimed interest. In her motion to dismiss,

however, Denise Hart does not argue that her 16.666% claim is

affected by Kenneth’s and Lisa’s claim to 29.834% of the

proceeds. Instead, Denise Hart makes several arguments as to why

Kenneth and Lisa Hart should not be able to assert a claim that

is adverse to Joan Hart’s interest, contending that Joan Hart has

a claim to the “full extent of her percentage ownership.” Denise

Hart Mot. to Dis. at 6. Prudential concerns limit Denise Hart’s

ability to challenge Kenneth’s and Lisa’s claim by raising

another person's legal rights. Therefore, Denise Hart has no

standing to challenge Kenneth’s and Lisa Hart’s claim and the

court will not consider the merits of Denise Hart’s motion to

dismiss.

 

Conclusion

For the foregoing reasons, Denise Hart’s motion to dismiss

(document no. 39) is denied.

SO ORDERED.

____________________________

Joseph A. DiClerico, Jr.

United States District Judge

January 17, 2008

cc: Peter A. Brown, Esquire

Joseph Caulfield, Esquire

Ronald E. Cook, Esquire

Gerry D'Ambrosio, Esquire

Richard J. Joyal, Esquire

Marc D. Kornitsky, Esquire

Michael a. Kostiew, Esquire

Todd Harold Prevett, Esquire

Robert J. Rabuck, Esquire

R. James Steiner, Esquire

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