Opinion
No. 12–P–1410.
2013-07-24
COMMONWEALTH v. ONE THOUSAND THREE HUNDRED SEVENTY–NINE DOLLARS & others.
By the Court (KANTROWITZ, MILKEY & MALDONADO, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The intervener, Samuel Santana, appeals from the denial of his motion for relief from judgment under Mass.R.Civ.P. 60(b)(3), 365 Mass. 828 (1974). He claims insufficiency of notice and fraud upon the court. We affirm.
Background. On September 9, 2002, Santana was arrested during a drug raid. The police officers seized $1,050 in cash that he had on his person.
On October 3, 2002, while Santana was imprisoned, the Commonwealth brought this civil forfeiture action against the seized money, pursuant to G.L. c. 94C, § 47( d ). Notification of the civil forfeiture complaint was sent via certified mail to Santana's last known residential address, but was never claimed and, after three attempts, was returned. A copy of the notice was also sent to Santana's attorney in the related drug trafficking case against Santana. On January 27, 2003, a default judgment of forfeiture was entered against the seized property. In 2004 Santana filed, in his criminal case, a pro se “motion for return of seized property/funds.” The judge in the criminal case denied the motion and in doing so discussed (as the Commonwealth had in its opposition) the existence and result of the forfeiture action. No appeal was taken. Five years later, in 2009, Santana filed a motion in the forfeiture action seeking relief from judgment. The motion was denied as untimely, and Santana failed to perfect an appeal. Finally, on June 18, 2012, Santana filed a renewed motion to vacate the default judgment under Mass.R.Civ.P. 60(b)(3). It is Santana's appeal from the denial of this motion that is now before us.
The separate sum of $1,379, seized elsewhere during the raid, is not at issue in this appeal.
Discussion.Rule 60(b) provides in pertinent part: “On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: ... (3) fraud ..., misrepresentation, or other misconduct of an adverse party.... The motion shall be made within a reasonable time, and for reason[ ] ... (3) not more than one year after the judgment, order or proceeding was entered or taken” (emphasis supplied).
In this case, a default judgment of forfeiture was entered in 2003, and one year later Santana's motion for return of property was filed and denied. Santana's first motion for relief from judgment was not filed until five years later, in 2009. The second motion for relief from judgment, now before us, was filed three years later still. The motion was not timely and could be denied for this reason alone. See Owens v. Mukendi, 448 Mass. 66, 77 (2006) (“[The] motion was filed far too late, and beyond the limits that discretion might otherwise permit”).
While we are sympathetic to Santana's argument that the Commonwealth should have served him in jail with the notice of the forfeiture action, he waited far too long to assert that argument.
Even if we were to consider the motion as timely, this would not affect the result. “A judge's denial of a motion under Mass.R.Civ.P. 60(b) is one within his extensive discretion and is entitled to great deference by an appellate court.” Care & Protection of Georgette, 54 Mass.App.Ct. 778, 787 (2002). Santana argues, citing Sahin v. Sahin, 435 Mass. 396, 405 (2001), that a fraud was perpetrated upon the court and that, as such, there is no time limitation for setting aside such a judgment. “A ‘fraud on the court’ occurs where ‘it can be demonstrated, clearly and convincingly, that a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system's ability impartially to adjudicate a matter by improperly influencing the trier or unfairly hampering the presentation of the opposing party's claim or defense.’ “ Paternity of Cheryl, 434 Mass. 23, 35 (2001), quoting from Rockdale Mgmt. Co. v. Shawmut Bank, N.A., 418 Mass. 596, 598 (1994).
Here, Santana has failed to demonstrate, clearly and convincingly, that the Commonwealth attempted to defraud the court. As the record demonstrates, a certified letter of notice of the forfeiture action was sent to Santana's residence. Moreover, the Commonwealth sent notice to his attorney. Notwithstanding those measures, Santana knew by 2004 at the latest, due to the response by the Commonwealth to his motion for release of property and the action of the court thereon, that the $1,050 was a subject of judgment in the forfeiture action. Given all of these factors, Santana has failed to demonstrate any abuse of the judge's discretion in the denial of his second motion for relief from judgment he filed some eight years later.
For these reasons and for substantially those provided by the Commonwealth in its brief, the order entered on June 22, 2012, denying the motion for relief from judgment is affirmed.
So ordered.