MEMORANDUM OPINION
THOMAS
F. HOGAN UNITED STATES DISTRICT JUDGE.
This is
a civil in rem action in which the United States
(the “government”) seeks the forfeiture of two
automobiles and miscellaneous computer equipment it seized in
2007 during the criminal investigation and prosecution of the
claimant, Lonnell G. Glover. See Verified Compl. for
Forfeiture In Rem, ¶¶ 1, 26-29 (ECF No.
1). Pending before the Court is the Government's Motion
for Summary Judgment (ECF No. 27). Like the companion case in
United States v. $189, 880.00 in U.S. Currency, No.
07-2156 (TFH), which is the subject of a similar opinion
issued today, the merits of the government's motion in
this case depend on a plea agreement that Glover executed on
February 13, 2017, in his criminal case, United States v.
Glover, No. 07-0153 (TFH). The government never
submitted that plea agreement for the record in this case.
To
prevail on summary judgment, the government must show that
there are no genuine disputes of material fact and it is
entitled to judgment as a matter of law. See Fed. R.
Civ. P. 56(a). To show that there are no genuine disputes of
material fact, the government must cite to
“particular parts of materials in the record,
including depositions, documents, electronically stored
information, affidavits or declarations, stipulations
(including those made for purposes of the motion only),
admissions, interrogatory answers, or other materials.”
Fed.R.Civ.P. 56(c)(1)(A) (emphasis added).
In
addition, Rule 7(h)(1) of the Rules of the United States
District Court for the District of Columbia (referred to as
the “local rules”) requires the government to
provide a statement of undisputed material facts in support
of its motion for summary judgment. LCvR
7(h)(1).[1] Rule 7(h)(1) further mandates that the
statement of undisputed material facts “shall include
references to the parts of the record relied on to
support the statement.” Id. (emphasis added).
Both
the government's Motion for Summary Judgment and its
Statement of Undisputed Facts fail to reference matters that
are part of the record in this case. Instead, the
government's Statement of Undisputed Facts cites
Glover's February 13, 2017, plea agreement and other
documents that are found in the record of Glover's
criminal case. See, e.g., Gov't's Statement
of Undisputed Facts In Supp. of Mot. for Summ. J.
¶¶ 16, 35-39 (ECF No. 27-1). Meanwhile, it is clear
that the success of the government's Motion for Summary
Judgment depends on the truth of matters asserted in
Glover's plea agreement. The government's principal
argument in favor of summary judgment is that Glover's
plea agreement memorializes his promise to forfeit the
property that is the subject of this civil in rem
action. See Gov't's Mem. of P.&A. In
Supp. of Mot. for Summ. J. 5 (ECF No. 27-2) (arguing that
“Glover's guilty plea, in which he forfeited all
interest in the Seized Properties, necessitates summary
judgment as a matter of law.”). As already noted,
however, that plea agreement has never been submitted for the
record in this case.
Moreover,
although Rule 201(b) of the Federal Rules of Evidence allows
a federal court to take judicial notice of “a fact that
is not subject to reasonable dispute” if that fact
“is generally known within the trial court's
territorial jurisdiction” or “can be accurately
and readily determined from sources whose accuracy cannot
reasonably be questioned”-and the D.C. Circuit has
applied this rule to take judicial notice of court records in
other cases-a federal court may not rely on a court record
that was subject to such judicial notice for the truth of
matters asserted in that record. See Hurd v. D.C.,
Gov't, 864 F.3d 671, 686 (D.C. Cir. 2017) (internal
quotation marks omitted). This “common-sense limitation
on judicial notice is particularly apt in a case where the
court purports to treat a noticed fact as preclusive.”
Id. In this case, the fact that Glover's plea
agreement contains his promise to forfeit the property the
government seeks could be preclusive if it prevents Glover
from successfully challenging the government's motion for
summary judgment.
Further
complicating matters, Glover has appealed the February 13,
2017, plea agreement to the D.C. Circuit, which entertained
oral arguments several months ago on December 6, 2018.
See Courtroom Minutes of Oral Argument, United
States v. Glover, No. 17-3034 (D.C. Cir. Dec. 6, 2018).
Glover challenges the legality of the plea agreement on the
grounds that (1) it was not knowingly and intelligently
entered into, (2) he was coerced to plead guilty, (3) the
Court failed to inform him about the consequences of the
plea, (4) the Court did not investigate the serious concerns
he expressed about his attorneys, and (5) his attorneys
provided ineffective assistance of counsel regarding his
guilty plea. See Br. of Appellant Lonnell G. Glover
1-2, Glover, No. 17-3034. Thus, on appeal, Glover is
effectively challenging the truth of the matters asserted in
the very plea agreement on which the government relies to
support the merits of its pending motion for summary judgment
and to establish that no material facts are in dispute.
Although
Glover failed to comply with the Court's October 18, 2018
order granting him until December 17, 2018, to file an
opposition to the government's motion for summary
judgment, the Court may not deem the government's motion
to be conceded and “must . . . determine for itself
whether the record and any undisputed material facts justify
granting summary judgment.”[2] Winston & Strawn,
LLP v. McLean, 843 F.3d 503, 505 (D.C. Cir. 2016)
(quoting Grimes v. District of Columbia, 794 F.3d
83, 97 (D.C. Cir. 2015) (Griffith, J., concurring)). Because
it is material whether Glover agreed to forfeit the property
that is the subject of this in rem action, however,
the Court is unable to conclude that undisputed material
facts justify granting summary judgment at this stage and in
light of Glover's pending appeal in his criminal case.
CONCLUSION
For all
these reasons, the Court will deny without prejudice the
Government's Motion for Summary Judgment (ECF No. 27). An
order consistent with this Memorandum Opinion will be filed
contemporaneously.
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Notes:
[1] The local rules are available on the
Court's public website at https://www.dcd.uscourts.gov/
sites/dcd/files/LocalRulesJanuary2019.pdf.
[2] This Court also cannot grant summary
judgment against Glover, who is a pro se prisoner, without
first giving “fair notice of the requirements of the
summary judgment rule.” Ham v. Smith, 653 F.2d
628, 630 (D.C. Cir. 1981) (per curiam) (quoting Hudson v.
Hardy,412 F.2d 1091 (D.C. Cir. 1968)). The required
notice must “include an explanation that the failure to
respond to an adverse party's summary judgment motion may
result in the district court granting ...