United States v. 2,164 Watches, More or Less, Bearing A Registered Trademark of Guess?, Inc.

The United States appeals a judgment on the pleadings against it in this civil forfeiture case. The district court determined that it lacked subject matter jurisdiction because service of process had not been made “forthwith” as required by Supplemental Rule E(4)(a) for Certain Admiralty and Maritime Claims, and the government had not shown good cause for the delay.

We conclude that although service of process was not made “forthwith,” and therefore was untimely, the district court nonetheless had subject matter jurisdiction. Consistent with its jurisdiction, the district court had discretion to determine the consequences of the government’s untimely service. In exercising that discretion, the court should have taken into consideration not only the excuse proffered by the government, but also the prejudice, if any, suffered by the claimant. The prejudice inquiry might also have included consideration of whether prejudice would result by a dismissal “without” prejudice if, for example, the statute of limitations had run on the government’s claims.

Procedurally, dismissal without prejudice, rather than judgment on the pleadings, would have been the appropriate action to take if…

dissenting:

I agree with the majority that, in this case, the service of process was not “forthwith” as required by Supplemental Rule E(4)(a). However, I disagree regarding the appropriate remedy for the government’s failure to execute a warrant for the arrest of a res in a forthwith manner.

“Jurisdiction over the res is obtained by arrest under the process of the court. In the absence of an arrest, no decree in rent can be rendered against the res.” Alyeska Pipeline Service Co. v. The Vessel Bay Ridge, 703 F.2d 381, 384 (9th Cir.1983). See also United States v. Approximately 2,538.85 Shares of Stock Certificates of the Ponce Leones Baseball Club, Inc., 988 F.2d 1281, 1288-89 (1st Cir.1993) (“[Wi]thout an effective seizure of the property, the court may lack jurisdiction to forfeit the property to the government.”). After a warrant to arrest an individual or search a residence expires, it is no longer valid. The same is true for a warrant to arrest a res that is not executed forthwith in a judicial forfeiture action. See U.S. v. $38,570 U.S. Currency, 950 F.2d 1108, 1113 (5th Cir.1992) (“No in rem suit can be maintained without a valid arrest of the res.”).

The majority offers…