United States v. Burke, 67 F.3d 289 (1st Cir. 1995). · Go Syfert
United States v. Burke, 67 F.3d 289 (1st Cir. 1995). Cases Citing This Book View Copy Cite
16 citation events (7 in the last 25 years) across 4 distinct courts.
Strongest positive: Colborn v. Netflix Inc (wied, 2020-01-16)
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discussed Cited as authority (rule) Colborn v. Netflix Inc
E.D. Wis. · 2020 · confidence medium
See also Marshall v. Warwick, 155 F.3d 1027, 1033 (8th Cir. 1988) (“We do not believe this section can ‘resurrect’ a removed diversity case which would have been dismissed as time-barred had it remained in state court.”); Osborne v. Sandoz Nutrition Corp., 67 F.3d 289, 289 [sic], 1995 WL 597215 (1st Cir. 1995) (unpublished) (“Applying Section 1448 would ignore [plaintiff’s] procedural deficiency in state court, and effectively penalize [defendant] for exercising its removal right.
discussed Cited as authority (rule) Rice v. Alpha Security, Inc.
E.D. Va. · 2013 · confidence medium
Similarly, in Osborne, the First Circuit affirmed the district court’s refusal to apply § 1448 to extend the time for service because doing so “would ignore Osborne’s procedural deficiency in state court[ ] and effectively penalize Sandoz for exercising its removal right.” 67 F.3d at 289; see also Feliz v. MacNeill, 493 Fed.Appx. 128, 131 (1st Cir.2012) (explaining that, in light of Osborne, “removal does not restart the clock for timely service” where the plaintiff failed to effect timely service under state law or demonstrate a good faith attempt to do so).
discussed Cited "see, e.g." Murphy v. Kahana Villa Vacation Club
D. Mass. · 2023 · signal: see also · confidence low
Mass. 2006) (quoting Romo v. Gulf Stream Coach, Inc., 250 F.3d 1119, 1122 (7th Cir. 2001) (“In determining the validity of service prior to removal, a federal court must apply the law of the state under which the service was made.”); see also Osborne v. Sandoz Nutrition Corp., 67 F.3d 289 , 1995 WL 597215, at *1 (1st Cir. 1995) (unpublished) (“[S]tate law governs the service of process prior to removal to the district court.”).
Retrieving the full opinion text from the archive…
United States
v.
Burke
95-1069.
Court of Appeals for the First Circuit.
Sep 28, 1995.
67 F.3d 289
Unpublished

67 F.3d 289
NOTICE: First Circuit Local Rule 36.2(b)6 states unpublished opinions may be cited only in related cases.

UNITED STATES of America, Plaintiff, Appellee,
v.
CERTAIN REAL PROPERTY LOCATED AT 300 FERN STREET BANGOR, et
al., Defendants, Appellees,
Susan E. Burke Claimant, Appellant.

No. 95-1069.

United States Court of Appeals, First Circuit.

Sept. 28, 1995.

Susan E. Burke on brief pro se.

Jay P. McCloskey, United States Attorney, and Michael M. DuBose, Assistant United States Attorney, on Motion for Summary Dismissal for appellees.

Before Torruella, Chief Judge. Selya and Boudin, Circuit Judges.

Per Curiam.

1

Appellant appeals from the denial of her Rule 60(b)(4) motion. She contends that a forfeiture decree is void because she did not receive sufficient notice of the forfeiture proceedings to satisfy due process. For the reasons which follow, we conclude that appellant is not entitled to relief.

2

The district court afforded appellant an opportunity to prove that she had suffered damages as a result of the due process violation, but appellant failed to appear at the hearing, and damages were denied. Appellant has not challenged the denial of damages on appeal, but rather seeks a determination that the forfeiture decree was void because of the due process violation. She contends that the purchaser from the government could acquire no valid title under a void judgment, and her intent is apparently to proceed against the purchaser if the forfeiture decree is declared void.

3

We will assume without deciding that appellant had some possessory interest in the res entitling her to notice of the forfeiture proceedings and that the government failed to accord her sufficient notice, thereby violating her right to due process. Nevertheless, because appellant, despite ample opportunity, has failed adequately to describe what property interest she claims to have had, she is not entitled to Rule 60(b)(4) relief.

4

The record owner, as well as appellant's husband, John Burke, were served in the forfeiture action, and their rights in the property have been effectively extinguished. So far as we are aware, they have not collaterally challenged the forfeiture decree as void. In other words, the decree is valid as to their interests. To prevail then in her quest against the purchaser, appellant would need to show a property interest that could survive the extinguishment of the record owner's and John Burke's. She has failed to do this, and consequently we conclude that appellant has failed to establish that she is entitled to relief under Rule 60(b)(4).

5

Affirmed.