UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

United States of America

v. Civil No. 08-cv-394-LM

One R GUNS Model 44, 7.62 x 54

caliber rifle Serial Number 11844,

seized from Jason Gerhard, et al.

O R D E R

Claimant Daniel John Riley filed a motion to set aside the 

judgment in a civil forfeiture action in this court pursuant to 

18 U.S.C. § 983(e)(1)(A) and Fed. R. Civ. P. 60(b) (doc. nos. 55 

& 58).1 This court issued an order denying Riley’s motion (doc. 

no. 59). Riley now objects to the court’s order and to the 

assignment of a magistrate judge to this case, and seeks de novo 

review by an Article III judge in this court (doc. no. 60). 

Plaintiff objects (doc. no. 61), and Riley has responded to the 

objection (doc. no. 62). As fully explained herein, Riley’s 

request for de novo consideration by an Article III judge is 

denied.

 

1Riley characterizes his action as a Motion for Relief from 

Final Judgment filed pursuant to Fed. R. Civ. P. 60(b). The 

specific statutory authority for this action derives from 18 

U.S.C. § 983(e)(5) (“A motion filed under this subsection shall 

be the exclusive remedy for seeking to set aside a declaration 

of forfeiture under a civil forfeiture statute.”). 

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Background

This forfeiture action was initially assigned to Magistrate 

Judge James R. Muirhead under the court’s ordinary case 

assignment method. The practice in this court, when the 

magistrate judge is assigned to a case, is to issue a Notice of 

Assignment to United States Magistrate Judge ("Notice") which 

must be served with the summonses. That Notice advises the 

parties that they have a right to object to the assignment to 

the magistrate judge without adverse consequences. No 

objections to the magistrate judge’s jurisdiction were filed in 

this case until Riley filed the instant objection.

The docket in this case does not specifically indicate that 

the court issued a Notice with the summonses. The docket does 

reflect, however, that after making service, the government 

filed affidavits of service as to the potential claimants served 

with notice of the forfeiture action (doc. nos. 5-7). One 

affidavit (doc. no. 7) reflects service by certified mail upon 

Sven Wiberg, the attorney representing Riley in the criminal 

case related to this forfeiture action, on October 23, 2008. 

The documents served included the verified complaint for 

forfeiture in rem, notice of complaint, summons and warrant of 

arrest in rem, ECF notice, and notice of assignment to a 

magistrate judge. 

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Further, according to the government’s Motion for Partial 

Final Order of Forfeiture (doc. no. 17), “Daniel Riley was sent 

notice of this forfeiture action by certified mail on September 

24, 2008, October 1, 2008, and October 23, 2008. . . . Sven 

Wiberg, Esq., counsel for Daniel Riley, was sent notice of this 

forfeiture action by certified mail on October 23, 2008.”2 

Attorney Wiberg represented Riley at the time this forfeiture 

action was filed.3 Neither Attorney Wiberg, nor anyone else 

acting on Riley’s behalf responded to the forfeiture notice. No 

verified claim or properly filed answer has ever been filed by 

or on behalf of Riley in this forfeiture action.

 

2Other documents in this case indicate that Riley himself 

was served by first class, rather than certified, mail. This 

court has already ruled on the validity of service in this case, 

and this distinction is therefore immaterial to the court’s 

ruling on the instant motion.

3According to the docket in Riley’s criminal case, United 

States v. Daniel Riley, 07-cr-189-GZS, Attorney Wiberg was 

appointed to represent Riley in that case on October 26, 2007. 

On December 7, 2007, Riley filed a motion to proceed pro se, 

which was granted, but Attorney Wiberg remained in the case as 

Riley’s standby counsel. On March 14, 2008, at Riley’s request, 

Attorney Wiberg was again appointed as main counsel (doc. no. 

316). Riley filed a motion to have Attorney Wiberg removed as 

his counsel on June 10, 2008 (doc. no. 439), which was denied on 

June 26, 2008 (doc. no. 452). Riley again sought Attorney 

Wiberg’s removal on July 10, 2008 (doc. no. 458), and the court 

again denied that request on July 21, 2008. On October 13, 

2008, Attorney Wiberg filed a motion to withdraw as Riley’s 

counsel (doc. no. 548). The court denied that motion on October 

21, 2008. On November 6, 2008, Attorney Wiberg filed a notice 

of appeal on Riley’s behalf. Correspondence between Riley and 

the clerk’s office (doc nos. 571 and 572) indicates that Riley 

did not wish to be represented by Attorney Wiberg. 

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Discussion

I. Consent to Jurisdiction of the Magistrate Judge

Under the Federal Magistrate Act, 28 U.S.C. § 636, federal 

magistrate judges “may conduct any or all proceedings in a jury 

or nonjury civil matter and order the entry of judgment in the 

case, when specifically designated to exercise such jurisdiction 

by the district court or courts he serves,” but only “[u]pon the 

consent of the parties.” 28 U.S.C. § 636(c)(1). Any party to 

an action is free to withhold consent to jurisdiction without 

adverse substantive consequences. 28 U.S.C. § 636(c)(2). A 

magistrate judge may preside over a case by the implied consent 

of the parties where “the litigant or counsel was made aware of 

the need for consent and the right to refuse it, and still 

voluntarily appeared to try the case before the Magistrate 

Judge.” Roell v. Withrow, 538 U.S. 580, 590 (2003). 

In this case, the litigants, prior to the entry of Riley to 

this action, were made aware of the need for consent to the 

magistrate judge’s jurisdiction as well as their right to refuse 

the jurisdiction. Neither the plaintiff, nor any claimant or 

putative claimant, until Riley, objected to the jurisdiction of 

the magistrate judge. All of the litigants in this case who 

voluntarily appeared as parties in the case had the case 

considered and decided by Magistrate Judge Muirhead without 

objection to his jurisdiction.

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II. Standing: Forfeiture Actions in Rem

Procedures in forfeiture actions in rem, such as this, are 

governed by the Supplemental Rules for Admiralty or Maritime 

Claims and Asset Forfeiture Actions (“Supp. R.”). See Supp. R. 

A(1)(B). In a forfeiture action, a verified complaint is 

brought in rem against the property as defendant. See Supp. R. 

C. In order to become a party to the action, a claimant 

asserting an interest in the defendant property must file a 

verified claim pursuant to Supp. R. G(5), which requires any 

person who asserts an interest in or right against the defendant 

property to file a claim with the court within the time set by 

the notice of forfeiture action, in this case, thirty-five days 

after service of the complaint. Failure to comply with the 

procedural requirements for opposing a forfeiture action 

precludes a person from establishing standing as a party to the 

action. See United States v. Real Prop., 135 F.3d 1312, 1316 

(9th Cir. 1998); United States v. Approximately 2,538.85 Shares 

of Stock Certificates of the Ponce Leones Baseball Club, Inc.,

988 F.2d 1281, 1285 (1st Cir. 1993) (citing United States v. One 

Urban Lot, 978 F.2d 776, 778 (1st Cir. 1992) (where no claim is 

filed, putative claimant lacks standing to contest forfeiture)). 

Here, service occurred, at the latest, on October 23, 2008. 

Riley’s first entry into this action, which was his Rule 60

motion and not a verified claim to the property as required by 

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the Supplemental Rules, occurred on June 17, 2010, more than a 

year and a half after proper service was made, far exceeding the 

thirty-five day period after the date of service within which a 

putative claimant must file a verified claim in order to obtain 

standing to challenge the forfeiture. See Supp. R. G(5). To 

obtain standing, a putative claimant must strictly comply with 

the technical requirements for filing a claim. See One Urban 

Lot, 978 F.2d at 778; see also United States v. 8136 S. Dobson 

Street, 125 F.3d 1076, 1082 (7th Cir. 1997) (“putative claimant 

is not a party to the action” and lacks standing to seek relief 

from judgment under Rule 60(b)). Riley’s failure to file a 

timely claim precludes him from establishing standing as a party 

and from bringing any claim for the property in this matter. 

See Ortiz-Cameron v. DEA, 139 F.3d 4, 6 (1st Cir. 1998) (citing 

Real Prop., 135 F.3d at 1317 (Rule C(6)’s purpose would be “illserved if any person with an ownership interest in a property 

. . . were empowered to challenge a forfeiture judgment long 

after judgment had been entered.”)). 

The fact that Riley filed a Rule 60 motion to set aside the 

judgment of forfeiture did not serve to make Riley a party to 

this action. See Real Prop., 135 F.3d at 1317. Rule 60

authorizes only a “party” to an action to seek relief from a 

judgment or order. Fed. R. Civ. P. 60.

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III. Consent of Non-Parties Not Required

The statute conferring authority on the magistrate judge to 

preside over this matter requires only the consent of “the 

parties.” 28 U.S.C. § 636(c)(1); see Real Prop. at 1317. 

Riley’s failure to comply with the procedures in Supp. R. G(5) 

for filing a claim to the defendant property, after receiving 

legally adequate notice of these proceedings, precluded his 

entry as a party to this action and deprived him of the right to 

withhold consent to the magistrate judge’s jurisdiction. See

Real Prop., 135 F.3d at 1317 (claimant’s failure to give 

government notice of opposition to forfeiture proceedings for 

more than a year after process was served precludes challenge to 

forfeiture action); see also Roell, 538 U.S. at 589 (requiring 

only voluntary consent of “the parties” before a matter may be 

referred to a magistrate judge for final decision). Because 

Riley is not a party in this action, his consent to the 

magistrate judge’s jurisdiction is unnecessary, and such 

jurisdiction is unaffected by Riley’s objection thereto. 

Here, consent of the parties timely appearing in the case 

was not withheld and, under this court's procedures, the parties 

that were in the action were deemed to have consented to the 

magistrate judge’s jurisdiction. Accordingly, the magistrate 

judge’s jurisdiction in this matter was properly obtained, and 

is properly exercised here. 

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Conclusion

Riley’s motion to set aside the decision of the Magistrate 

Judge and to proceed before an Article III judge (doc. no. 60) 

is DENIED.

SO ORDERED.

________________________________

Landya B. McCafferty

United States Magistrate Judge

Date: April 26, 2011

cc: Daniel John Riley, pro se

Seth R. Aframe, Esq.

David H. Bownes, Esq.

Stanley W. Norkunas, Esq.

Romeo Lee Gonzalez, pro se 

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