United States of America v. Real Property Located at 2621 Bradford Drive, Middletown, Butler County, Ohio

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 10a0156n.06
No. 08-4332
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
REAL PROPERTY LOCATED AT 2621
BRADFORD DRIVE, MIDDLETOWN, BUTLER
COUNTY, OHIO,
Defendant,
and
VIRGINIA GAIL FRANZ, as Trustee on behalf of
Virginia Gail Franz Trust,
Defendant-Appellant.
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ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE SOUTHERN
DISTRICT OF OHIO
Before: GUY, CLAY and WHITE, Circuit Judges.
HELENE N. WHITE, Circuit Judge. Virginia Gail Franz (“Franz”), as trustee of the
Virginia Gail Franz Trust, appeals the district court’s grant of summary judgment to the United
States (“Government”) in an action for in rem civil forfeiture under 21 U.S.C. § 881(a)(7), and from
the court’s subsequent denial of her motion to set aside judgment pursuant to Fed. R. Civ. P.
60(b)(1). Franz argues that she was an innocent owner of the forfeited property and that the district

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court abused its discretion in denying her motion to set aside judgment after her attorney
inadvertently failed to respond to the Government’s summary judgment motion. We AFFIRM.
I.
This case stems from an in rem civil forfeiture proceeding brought by the Government
against real property known and numbered as 2621 Bradford Drive, Middletown, Butler County,
Ohio. Jon Franz resided in a house on the property, which was owned by the Virginia Gail Franz
Trust. On July 3, 2007, Middletown, Ohio police responded to a report of marijuana plants growing
in plain view at the property. Officers met with Jon Franz and detected a strong odor of marijuana
coming from inside the residence. After obtaining a search warrant, officers found 121 marijuana
plants growing in and around the house. The search also revealed an irrigation system operated on
a timer and plumbed directly into the house’s water supply, a motorized trolley with grow lights that
passed over plants, high-output lights, fans with piping to supply fresh air, and a room equipped with
digital scales, small bags of marijuana and larger storage containers of marijuana.
Jon Franz was indicted in the Court of Common Pleas in Butler County, Ohio on a number
of charges involving the possession, cultivation and distribution of marijuana. The Government then
brought a civil action in rem for forfeiture of 2621 Bradford Drive. The Virginia Gail Franz Trust
contested the forfeiture and, in January 2008, filed an answer to the Government’s complaint. On
May 14, 2008, the Government filed a motion for summary judgment and served notice by email,
in accordance with local rules. A response was due by June 9, 2008, but none was filed. On August
12, 2008, having received no response from Franz, the district court granted the Government’s

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Franz’s brief on appeal does not argue that summary judgment was inappropriate and raises1
as the sole issue whether the district court abused its discretion in denying her Rule 60(b)(1) motion.
While her brief does mention that she appeals the grant of summary judgment, no effort at
developing an argument on the issue was made. Such failure generally constitutes waiver. El-
Moussa v. Holder, 569 F.3d 250, 257 (6th Cir. 2009) (citing McPherson v. Kelsey, 125 F.3d 989,
995-96 (6th Cir. 1997)). We address the grant of summary judgment, nevertheless, because the
denial of Franz’s Rule 60(b) motion was premised on a failure to demonstrate a meritorious defense
to the motion for summary judgment.
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motion. Franz filed a motion for relief from judgment the same day, accompanied by an affidavit
of counsel stating that he had not received, or had inadvertently deleted without reading, the emailed
service. Counsel attested that he was unaware of the pending motion until he received an email
informing him that summary judgment had been entered against his client. The district court denied
Franz’s motion and Franz timely appealed both the denial of the motion and the grant of summary
judgment.
II.
A.
We review the district court’s grant of summary judgment de novo. Moses v. Providence1
Hosp. & Med. Ctrs., Inc., 561 F.3d 573, 578 (6th Cir. 2009). Summary judgment is appropriate “if
the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no
genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(c). The moving party “bears the burden of proving that there are no genuine
issues of material fact.” Phillips v. Roane County, Tenn., 534 F.3d 531, 538 (6th Cir. 2008) (citing
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)). The non-moving party must then “come

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forward with ‘specific facts showing a genuine issue for trial.’” Merriweather v. Zamora, 569 F.3d
307, 313 (6th Cir. 2009) (quoting Fed. R. Civ. P. 56(e)(2)). “When we review a motion for summary
judgment, we must view all facts and inferences in the light most favorable to the non-moving
party.” Hall v. Spencer County, Ky., 583 F.3d 930, 933 (6th Cir. 2009) (citing Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).
The civil forfeiture provision of the Controlled Substance Act, 21 U.S.C. § 881(a)(7),
provides:
The following shall be subject to forfeiture to the United States and no property right
shall exist in them: . . .
(7) All real property, including any right, title, and interest (including
any leasehold interest) in the whole of any lot or tract of land and any
appurtenances or improvements, which is used, or intended to be
used, in any manner or part, to commit, or to facilitate the
commission of, a violation of this subchapter punishable by more
than one year's imprisonment.
The subchapter makes it punishable “to manufacture, distribute, or dispense, or possess with intent
to manufacture, distribute, or dispense, a controlled substance.” 21 U.S.C. § 841(a)(1). Violations
involving “100 or more marijuana plants regardless of weight” are punishable by no less than five
years imprisonment. 21 U.S.C. § 841(b)(1)(B)(vii). Thus, the property was subject to forfeiture.
Under the Civil Asset Forfeiture Reform Act of 2000 (“CAFRA”), the government must
prove by a preponderance of the evidence that the property in question is subject to forfeiture under
any civil forfeiture statute. 18 U.S.C. § 983(c)(1). In addition, “if the Government's theory of
forfeiture is that the property was used to commit or facilitate the commission of a criminal offense,

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or was involved in the commission of a criminal offense, the Government shall establish that there
was a substantial connection between the property and the offense.” 18 U.S.C. § 983(c)(3).
The Government made the requisite showing on both issues. There was extensive use of the
property for the purpose of cultivating 121 marijuana plants, including physical improvements made
to the property for the sole purpose of marijuana cultivation. Intent to distribute marijuana can be
inferred from the large quantity of marijuana plants, and from the presence of scales and packaged
marijuana. United States v. Bell, 516 F.3d 432, 446 (6th Cir. 2008). The substantial-connection
requirement of CAFRA is supported by the same facts.
While Franz denied that marijuana was being cultivated on the property, she presented no
evidence to contradict the Government’s assertions. As we have held, “[t]hat the burden is on the
government does not change the fact that, if the government meets its burden, it will prevail [on a
motion for summary judgment] unless the claimants introduce evidence to support their case.”
United States v. $174,206.00 in U.S. Currency, 320 F.3d 658, 662 (6th Cir. 2003). The district court
did not err when it concluded that the subject property was subject to forfeiture.
CAFRA further provides, in part:
(1) An innocent owner's interest in property shall not be forfeited under any civil
forfeiture statute. The claimant shall have the burden of proving that the claimant is
an innocent owner by a preponderance of the evidence.
(2)(A) With respect to a property interest in existence at the time the illegal conduct
giving rise to forfeiture took place, the term “innocent owner” means an owner who--
(i) did not know of the conduct giving rise to forfeiture. . .
18 U.S.C. § 983(d). Franz can avoid forfeiture if she can establish that she is an “innocent owner.”
Innocent ownership is an affirmative defense on which the claimant bears the burden of proof to

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The fact that her state of mind is implicated by an innocent-owner defense does not relieve2
her of the need to make some showing. See, e.g., Anderson, 477 U.S. at 257 (noting that even in
cases where state of mind is at issue, “the [non-moving party] must present affirmative evidence in
order to defeat a properly supported motion for summary judgment”).
In 1994, Jon Franz was arrested on similar charges stemming from a search of the same3
property, and in 2007 he pleaded no contest to a charge of drug abuse, for marijuana use.
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show by a preponderance of the evidence that she lacked knowledge of the illegal activity.
Reviewing a motion for summary judgment “necessarily implicates the substantive evidentiary
standard of proof that would apply at . . . trial . . . . The mere existence of a scintilla of evidence in
support of the [opponent's] position will be insufficient; there must be evidence on which the jury
could reasonably find for the plaintiff.” Anderson v. Liberty Lobby, 477 U.S. 242, 252 (1986). By
failing to respond to the government’s motion, Franz offered no evidence at all on this issue beyond
her general denial of knowledge contained in her pleadings. The Government, in contrast, amply2
supported its motion for summary judgment. Franz admitted visiting the subject property, on which
marijuana was openly and extensively cultivated, numerous times. She posted bond for her son on
two prior occasions for marijuana-related offenses. According to police reports, she further3
admitted knowledge of her son’s continuing marijuana use during the execution of the search
warrant.
While all evidence must be viewed in a light most favorable to the non-moving party, a
reasonable jury could not infer in the face of Franz’s admissions that Franz had met her burden of
establishing her innocent ownership on her denial alone. As the Supreme Court has held, “[w]hen

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the moving party has carried its burden under Rule 56(c), its opponent must do more than simply
show that there is some metaphysical doubt as to the material facts. . . . Where the record taken as
a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine
issue for trial.” Matsushita Elec. Indus. Co., v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)
(internal citations and footnotes omitted). Franz did not supply any evidence to establish her claim
of innocent ownership and provided nothing more than “metaphysical doubt” as to how the extensive
and open cultivation of marijuana by her son on a property she owned and frequently visited could
have gone undetected. Franz was bound by Fed. R. Civ. P. 56(e)(2) to “set out specific facts
showing a genuine issue for trial.” The record before the district court contained no such facts,
making summary judgment appropriate.
B.
We now turn to the denial of Franz’s Rule 60(b)(1) motion to set aside judgment. This court
“review[s] a district court’s denial of a Rule 60(b) motion for abuse of discretion.” Info-Hold, Inc.
v. Sound Merchandising, Inc., 538 F.3d 448, 453-54 (6th Cir. 2008) (citations omitted). An abuse
of discretion occurs when the district court commits “a clear error of judgment, such as applying the
incorrect legal standard, misapplying the correct legal standard, or relying upon clearly erroneous
findings of fact.” In re Ferro Corp. Derivative Litigation, 511 F.3d 611, 623 (6th Cir. 2008) (citing
Blue Diamond Coal Co. v. Trs. of the UMWA Combined Benefit Fund, 249 F.3d 519, 524 (6th Cir.
2001), and Schenck v. City of Hudson, 114 F.3d 590, 593 (6th Cir. 1997)). “[R]elief under Rule
60(b) is ‘circumscribed by public policy favoring finality of judgments and termination of

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litigation.’” Blue Diamond, 249 F.3d at 524 (quoting Waifersong Ltd., Inc. v. Classic Music
Vending, 976 F.2d 290, 292 (6th Cir.1992)).
Rule 60(b) states in pertinent part, “[o]n motion and just terms, the court may relieve a party
or its legal representative from a final judgment, order, or proceeding for the following reasons: (1)
mistake, inadvertence, surprise, or excusable neglect.” Three factors are relevant to determine
whether Rule 60(b)(1) relief is appropriate: “(1) whether the party seeking relief is culpable; (2)
whether the party opposing relief will be prejudiced; and (3) whether the party seeking relief has a
meritorious claim” Williams v. Meyer, 346 F.3d 607, 613 (6th Cir. 2003) (citing United Coin Meter
v. Seaboard Coastline R.R., 705 F.2d 839, 844-45 (6th Cir. 1983)).
The district court denied Franz’s Rule 60(b)(1) motion on the basis that Franz could not
establish a meritorious defense. In her motion, Franz focused on the mistake of her counsel,
attaching only an affidavit of counsel regarding his failure to receive notice of the Government’s
motion for summary judgment. The motion stated that Franz had no knowledge of her son’s illegal
use of the property, but did nothing more to demonstrate that she could raise a genuine issue of
material fact on the issue. The district court denied Franz’s motion, concluding that the Government
had presented sufficient evidence to negate Franz’s innocent-owner defense, while Franz had “not
proffered any facts which tend to show that the illegal activity on the subject property took place
without her knowledge or consent.” (R. 21, at 6.)
On appeal, Franz presents for the first time a number of unsworn claims pertaining to her
innocent-owner defense. However, none of these assertions was included in the record before the

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It is unnecessary for this court to determine whether the claims presented would have been4
sufficient to constitute a meritorious defense and we do not reach this issue.
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district court. As we have held, “[o]ur function is to review the case presented to the district court,4
rather than a better case fashioned after a district court's unfavorable order. The court will consider
an issue not raised below only when the proper resolution is beyond doubt or a plain miscarriage of
justice might otherwise result.” DaimlerChrysler Corp. Healthcare Benefits Plan v. Durden, 448
F.3d 918, 922 (6th Cir. 2006) (citations omitted). The case presented to the district court seeking
relief from judgment contained no new factual support for Franz’s innocent-owner defense. The
district court had already properly granted the Government’s motion for summary judgment and did
not abuse its discretion in concluding that Franz, having failed to present anything more than a
reiteration of her previous denials, could not establish that she had a meritorious defense.
III.
We AFFIRM both the district court’s grant of summary judgment and its denial of Franz’s
motion to set aside judgment.

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