472 F.Supp.2d 665 (2007)
Allah BURMAN, Plaintiff,
v.
UNITED STATES of America, Defendant.
Civil No. L-03-1165.
United States District Court, D. Maryland.
February 7, 2007.
Allah Burman, El Reno, OK, Pro se.
Christopher J. Romano, Office of the United States Attorney, Baltimore, MD, for Defendant.

MEMORANDUM
LEGG, Chief Judge.
On April 17, 2003, Allah Burman ("Burman") filed a motion seeking the return of property that the government seized from him in 2001 pursuant to a search warrant in a drug case. The Court will, by separate *666 Order, VACATE the Court's Order dated August 14, 2006, GRANT Burman's motion for the return of $824, and RESERVE JUDGMENT on the remaining property. This Order specifies the facts that the government must supply regarding the remaining property and sets deadlines so that this old case can be decided.
I. Background
Burman seeks the return of the following seized property: (i) a 2001 Suzuki GSXR 750 motorcycle, (ii) assorted jewelry, and (iii) United States currency. Law enforcement officers seized these items from a home at 14407 Sequoia Bend Boulevard in Houston, Texas, as part of a drug investigation. The investigation led to the indictment of Burman and others. United States v. Burman, Crim. No. L-00-0115 (D.Md.). On January 29, 2003, after a two-and-a-half week trial, a jury convicted Burman on two counts: (i) conspiring to distribute cocaine and (ii) possession with intent to distribute cocaine.
Soon after Burman's arrest, the Drug Enforcement Agency (DEA) began civil forfeiture proceedings against the seized property pursuant to 21 U.S.C. § 881. Property purchased with the proceeds of drug trafficking is subject to forfeiture. 21 U.S.C. § 881(a)(6). By statute, the government must initiate a forfeiture case, which is administrative, by giving written notice to any interested party. The government is also required to publish notice in a publication of general circulation. 18 U.S.C. § 983(a)(1)(A)(i); 19 U.S.C. § 1607(a).
A person who receives written notice (hereinafter "Notice" or "Notice of Forfeiture"[1]), or who learns of the forfeiture proceedings by other means has a specified time in which to file a claim. The claimant has two options. He may file a request for judicial forfeiture proceedings with the seizing agency. The agency must refer the request to the applicable United States Attorney, who then files a complaint for forfeiture in federal district court. 18 U.S.C. § 983(a)(3). The claimant may also elect to remain in the administrative forum by filing a petition for remission or mitigation.[2]
If a person to whom notice was sent does nothing and the administrative tribunal declares the property forfeited, the district court, by statute, lacks subsequent jurisdiction over the property with one exception. If the claimant alleges that the government failed to provide him with adequate notice and that he did not otherwise know of the forfeiture proceedings, the district court must decide that issue.[3] If the court concludes that the claimant was adequately advised of the forfeiture proceedings, the court must dismiss the claim. If, however, the court concludes that notice was lacking, then the government must return the property and/or file a new forfeiture action.[4]
*667 Burman filed the instant Motion for Return of Property on April 17, 2003. He makes a number of claims, including that the property was seized without probable cause, the search warrant was defective, and that the prosecution presented perjured testimony to the grand jury that indicted Burman. By statute, this Court has jurisdiction over only one of Burman's contentions, that he was not adequately notified of the forfeiture proceedings. Accordingly, the Court will treat his filing as a motion to set aside the forfeiture for insufficient notice.
II. Standard
Under 18 U.S.C. § 983(e), an "interested party" may move to set aside a declaration of forfeiture if (i) the government failed to take reasonable steps to provide him with notice, and (ii) the moving party did not otherwise know or have reason to know of the forfeiture in time to file a timely claim.
The Fourth Circuit has provided substantial guidance in this area. See United States v. Minor, 228 F.3d 352 (4th Cir. 2000). The Court places the burden on the government to show that it took "reasonable steps" to provide notice to the claimant. The case law also spells out the requirements of "reasonable notice" to a federal prisoner.[5] The government must (i) send a certified letter, return receipt requested, to the facility where the prisoner is housed, (ii) show that a prison official signed for the letter, and (iii) provide evidence "that mail delivery procedures existed at that facility that `were reasonably calculated to ensure that the notice, once addressed to [the inmate], would still reach him upon arrival at the prison (and indeed, would only be accepted were [the inmate] actually present)." Id. at 358 (quoting United States v. One Toshiba Color Television, 213 F.3d 147, 156 (3d Cir.2000)). Notice sent to the inmate's relatives, lawyer, or former residence is insufficient.
While Minor does not address the second prong, logic suggests that the government would also carry the burden of proving that the claimant otherwise knew or should have known of the forfeiture.
III. Analysis
Applying the tests to the instant case is complicated.[6] As will be discussed, the DEA sent multiple Notices of Forfeiture to Burman, addressed to several jails, to his mother, and to attorneys who had represented him. These Notices specified the property involved and advised Burman of the formal requirements for making a claim. There is no direct evidence that any of the notices ever reached Burman. With respect to the Notices that were sent to Burman in jail, the government has failed to offer any proof that Burman was at that particular jail when notice was delivered, that the person who signed for the letter was a prison official, or that mail delivery procedures at the jail were reasonably calculated to ensure that the Notice reached Burman.
Burman evidently knew that the government was seeking forfeiture of some of his property. He mailed the DEA letters asking what was happening with certain items. The DEA treated these letters as requests for judicial forfeiture proceedings, but denied the requests either because *668 they were untimely or because Burman had failed to submit his claims under oath as required by the statute.[7]
The DEA mailed Burman a number of corrective notices advising that his claim must be sworn under oath, subject to the penalties of perjury, and giving him 20 days to cure the defect. Except with respect to one item of property ($824), Burman never filed a claim that met the formal requirements. There is no direct evidence that any of these corrective notices ever reached Burman, however. Moreover, there has been no briefing whether these corrective notices are subject to the "reasonable steps" requirement of § 983. If they are, the government has made no effort to establish that Burman was at the jail to which the corrective notices were addressed or any of the other requirements established by the Fourth Circuit for notice to a federal prisoner.
Because the record is deficient, the Government has two options:
(i) The government can attempt to complete the record by presenting evidence on the "reasonable steps" prong. If the government can show that it took reasonable steps, then Burman failed to submit a proper verified claim for any of the items except for $824. Except with respect to this item, Burman's motion to set aside the forfeiture would be denied.
(ii) The government can, if limitations have not run, re-initiate forfeiture proceedings by addressing Notices of Forfeiture to Burman at his present place of federal incarceration for each of the items except the $824.[8]
In a separate order, the Court will give the government a time limit for choosing between these options. The remainder of this opinion outlines the present state of the record with respect to each of the items subject to forfeiture.
A. Motorcycle (Asset I.D. No. 01-DEA-393568)
1. History of Notices with Respect to the Motorcycle
On July 6, 2001, the DEA sent a Notice of Forfeiture for the motorcycle by certified mail, return receipt requested, to the following addresses:
(i) 14407 Sequoia Bend Boulevard, Houston, Texas, where Burman resided prior to his arrest. The Notice was returned unclaimed.
(ii) The Law Offices of Ronald Green, Esq. ("Green") in Houston, Texas. Green had at one time represented Burman in a criminal case. A person named "T. Anderson" signed for the Notice. On July 16, 2001, Green informed the DEA that he was no longer Burman's counsel and requested that correspondence be directed to the United States Marshal in Baltimore.[9]
(iii) The Federal Detention Center in Houston, Texas ("FDC-Houston"). A person whose name is illegible signed for the Notice.[10]
*669 In a letter dated December 31, 2001 and received by the DEA on January 8, 2002, Burman stated that he had received no correspondence about the motorcycle and asked for a status report.[11] The DEA treated the letter as a request for judicial forfeiture proceedings, but rejected the request because it was not made under oath, subject to penalty of perjury, as required by 18 U.S.C. § 983(a)(2)(C)(iii).[12]
On January 18, 2002, the DEA issued a corrective notice granting Burman 20 more days to file a timely request for judicial forfeiture proceedings. It sent the corrective notice to the following addresses:
(i) The Law Offices of Thomas Saunders. Saunders had been appointed as trial counsel in Burman's criminal case on October 5, 2001. (Grim. Case No. L-01-115, D. Md., Docket No. 110). A person whose name is illegible signed for the corrective notice on January 25, 2002.[13]
(ii) 911 Dartmouth Glen Way, Baltimore, Md. This is the address of Burman's mother, Shirley Burman. Ms. Burman signed for the corrective notice on January 24, 2002.[14]
(iii) The Maryland Correctional Adjustment Center ("MCAC") in Baltimore, Maryland, which was the return address on Burman's December 31st letter. A person named "Tameka Sally" signed for the corrective notice on January 24, 2002.[15]
Also on January 18, the DEA issued a new Notice of Forfeiture for the motorcycle and sent it to the following addresses:
(i) The Law Offices of Thomas Saunders. It is unclear whether anyone signed for it.
(ii) MCAC. A person named "Tameka Sally" signed for the Notice of Forfeiture on January 22, 2002.
On February 6, 2002, within the 20-day window for correcting the defect, the DEA received another letter from Burman stating that he wished to contest the forfeiture of the motorcycle.[16] Although the return address on the envelope was "The Law Offices of Thomas J. Saunders," Burman explained in his letter that Saunders no longer represented him.[17]
The DEA treated the letter as a request for judicial forfeiture proceedings. In a corrective notice dated February 27, 2002, it denied the request because Burman had failed to sign and swear his statement under oath, subject to penalties of perjury. Burman was once again granted 20 days to cure the defect.[18] The DEA sent the corrective notice to Saunders, but the U.S. Postal Service returned the certified mail slip unsigned.[19]
On May 2, 2002, the DEA issued a third corrective notice, again giving Burman 20 days to file a proper request for judicial *670 forfeiture proceedings. It sent this notice to the following addresses:
(i) 911 Dartmouth Glen Way, Baltimore, Md. This is the address of Burman's mother, Shirley Burman. The corrective notice was returned unclaimed.[20]
(ii) Wicomico County Jail in Salisbury, Md. The corrective notice was returned unclaimed.[21]
An internal e-mail reveals that the DEA learned in September 2002 that Burman had been moved to the Central Virginia Regional Jail ("CVRJ") in Orange, Virginia. In October 2002, the DEA sent a copy of the third corrective notice to the CVRJ, where an individual named "Roy Lewis" signed for it on October 7, 2002.
Burman never filed a response. Accordingly, the motorcycle was administratively forfeited on May 8, 2003.[22]
2. Record Is Insufficient with Respect to the Motorcycle
As discussed above, the government is entitled to prevail if (i) the DEA made reasonable attempts to provide notice or (ii) Burman knew or had reason to know of the seizure within sufficient time to file a timely claim. 18 U.S.C. § 983(e).
It is clear that Burman knew of the seizure within sufficient time to file a timely claim, because he did, in fact, file a timely request for judicial forfeiture proceedings on February 6, 2002. The DEA rejected the request because it was not properly sworn, not because it was untimely.
This may not be the end of the inquiry, however. The government has not briefed two issues. First, whether the DEA was required to send Burman corrective notices (i) informing him that his request was defective, and (ii) giving him a grace period to cure the defect. Second, whether corrective notices are subject to the requirements of § 983(e).
If corrective notices are required and subject to § 983(e), then the record is incomplete. Burman did not respond to the notices issued on or after February 27, 2002. Moreover, the government has not shown that the corrective notices were "reasonably calculated" to reach Burman.[23] The corrective notice sent to Wicomico County Jail on May 2, 2002 was returned unclaimed. It was, therefore, inadequate. This leaves the corrective notice sent to CVRJ in September 2002. Someone named "Roy Lewis" signed for this notice, but the government has not shown that (i) Burman was incarcerated at CVRJ when the notice arrived, (ii) Roy Lewis was a prison employee, and (iii) CVRJ had in place adequate procedures to ensure that prisoners received their mail.
The government must supply the requested information before the Court can render a decision. Accordingly, the Court will RESERVE JUDGMENT on Burman's motion for the return of the motorcycle.
*671 B. Jewelry (Asset I.D. No. 01-DEA-393812)
1. History of Notices with Respect to the Jewelry
On July 20, 2001, the DEA sent a Notice of Forfeiture for the jewelry by certified mail, return receipt requested, to the following addresses:
(i) 14407 Sequoia Bend Boulevard, Houston, Texas, where Burman resided prior to his arrest. Someone named "Edward Jones, Jr." signed for the Notice of Forfeiture on July 21, 2001.[24]
(ii) The Law Offices of Ronald Green, Esq. in Houston, Texas. Someone named "T. Anderson" signed for the Notice on July 23, 2001.[25]
(iii) The Federal Detention Center in Houston, Texas ("FDC-Houston"). A person whose name is illegible signed for the Notice on July 29, 2001, but several days later it was sent back to the DEA, stamped "return to sender."
On December 21, 2001, the DEA sent a second Notice of Forfeiture to the Maryland Correctional Adjustment Center ("MCAC") in Baltimore, Maryland. A person named "Tameka Sally" signed for it on December 26, 2001.[26]
On December 31, 2001, the DEA sent a copy of the first Notice of Forfeiture to the Law Offices of Thomas Saunders. On October 5, 2001, Saunders was appointed as Burman's trial counsel in Burman's criminal case on October 5, 2001. (Case No. L-01-115, D. Md., Docket No. 110). It is unclear whether anyone signed for the Notice of Forfeiture.[27]
Then, in a letter dated December 31, 2001 and received by the DEA on January 8, 2002, Burman stated that he wished to make a claim for his jewelry.[28] The DEA treated the letter as a timely request for judicial forfeiture proceedings, but rejected the request because it was not made under oath, subject to penalty of perjury, as required by 18 U.S.C. § 983(a)(2)(C)(iii).
On January 18, 2002, the DEA issued a corrective notice granting Burman 20 more days to file a timely request for judicial forfeiture proceedings. It sent the corrective notice to the following addresses:
(i) The Law Offices of Thomas Saunders. A person whose name is illegible signed for the corrective notice on January 25, 2002.[29]
(ii) 911 Dartmouth Glen Way, Baltimore, Md. This is the address of Burman's mother, Shirley Burman. Ms. Burman signed for the corrective notice on January 24, 2002.[30]
(iii) The Maryland Correctional Adjustment Center ("MCAC") in Baltimore, Maryland, which was the return address on Burman's December 31st letter. A person named "Tameka Sally" signed for the corrective notice on January 24, 2002.[31]
On February 6, 2002, within the 20-day window for correcting the defect, the DEA *672 received another letter from Burman stating that he wished to contest the forfeiture of the jewelry. Although the return address on the envelope was "The Law Offices of Thomas J. Saunders," Burman explained in his letter that Saunders was no longer representing him.[32]
The DEA treated the letter as a request for judicial forfeiture proceedings. In a corrective notice dated February 27, 2002, it denied the request because Burman had failed to sign and swear his statement under oath, subject to penalties of perjury, but gave Burman 20 days to cure the defect.[33] This notice was sent to Saunders's office, but the U.S. Postal Service returned the certified mail slip unsigned.[34]
On May 2, 2002, the DEA issued a third corrective notice, again giving Burman 20 days to file a proper request for judicial forfeiture proceedings. It sent this notice to the following:
(i) 911 Dartmouth Glen Way, Baltimore, Md. This is the address of Burman's mother, Shirley Burman. The corrective notice was returned unclaimed.[35]
(ii) Wicomico County Jail in Salisbury, Md. The corrective notice was returned unclaimed.[36]
On September 11, 2002, the DEA issued a fourth corrective notice granting Burman 20 more days to file a timely request for judicial forfeiture proceedings.[37] It sent the corrective notice to the following addresses:
(i) 14407 Sequoia Bend Boulevard, Houston, Texas. The corrective notice was returned unclaimed.[38]
(ii) FDC-Houston. A person named "Stinebuck" signed for the corrective notice on September 23, 2002.
(iii) The Central Virginia Regional Jail ("CVRJ") in Orange, Virginia. A person named "Roy Lewis" signed for the corrective notice on October 7, 2002.[39]
Burman did not respond. Accordingly, on May 8, 2003, the DEA forfeited the jewelry.[40]
2. Record is Insufficient with Respect to the Jewelry
Burman knew of the seizure within sufficient time to file a timely claim. He filed two timely requests for judicial forfeiture proceedings on January 8, 2002 and February 6, 2002. The DEA rejected the requests because they were not properly sworn, not because they were untimely.
As discussed above, this may not end the inquiry. If corrective notices are required and subject to § 983(e), then the record is incomplete. Burman did not respond to the notices issued on or after February 27, 2002. Moreover, the government has not shown that the corrective notices were "reasonably calculated" to reach Burman in prison. Again, the corrective notice sent to Wicomico County Jail on May 2, 2002 was inadequate because it was returned unclaimed. This leaves the corrective notices sent to the FDC-Houston and CVRJ on September 11, 2002. Someone named "Stinebuck" signed for the notice at the FDC-Houston on September 23, 2002, and someone *673 named "Roy Lewis" signed for the notice at CVRJ on October 7, 2002. The government has not shown, however, that (i) Burman was incarcerated at the FDC-Houston on September 23, 2002 or at CVRJ on October 7, 2002, (ii) Stinebuck and Roy Lewis were prison employees, and (iii) the FDC-Houston and CVRJ had in place adequate procedures to ensure that prisoners received their mail.
The government must supply the requested information before the Court can render a decision. Accordingly, the Court will RESERVE JUDGMENT on Burman's motion for the return of the jewelry.
C. $15,000 in United States Currency (Asset I.D. No. 01-DEA-393660)
1. History of Notices with Respect to the $15,000
On July 20, 2001, the DEA sent a Notice of Forfeiture for $15,000[41] by certified mail, return receipt requested, to the following addresses:
(i) 14407 Sequoia Bend Boulevard, Houston, Texas, where Burman resided prior to his arrest. The Notice was returned unclaimed.[42]
(ii) The Law Offices of Ronald Green, Esq. in Houston, Texas. "T. Anderson" signed for the Notice.[43] On July 16, 2001, Green informed the DEA that he was no longer Burman's counsel and requested that correspondence be directed to the United States Marshal in Baltimore.[44]
(iii) The Federal Detention Center in Houston, Texas ("FDC-Houston"). A person whose name is illegible signed for the Notice on July 12, 2001.[45]
On November 26, 2001, the DEA sent a second Notice of Forfeiture for the $15,000 to the following:
(i) The Maryland Correctional Adjustment Center ("MCAC") in Baltimore, Maryland. A person named "Karen Gardner" signed for it on November 29, 2001.[46]
(ii) The Law Offices of Thomas Saunders. The Notice was returned unclaimed.[47]
In a letter dated January 31, 2002 and received by the DEA on February 6, 2002, Burman stated that he wished to make a claim for the $15,000.[48] Although the return address on the envelope was "The Law Offices of Thomas J. Saunders," Burman explained in his letter that Saunders was no longer representing him.
The DEA treated the letter as a request for judicial forfeiture proceedings, but rejected it outright because it was untimely. The DEA did not give Burman another chance to request judicial forfeiture proceedings, as it did with the motorcycle and *674 the jewelry. Instead, in a notice dated February 27, 2002 ("denial notice"), the DEA informed Burman that he had 20 days to file a petition for remission or mitigation. This notice was mailed to Saunders, but the U.S. Postal Service returned the certified mail slip unsigned.[49]
On May 8, 2003, the DEA apparently sent another copy of the denial notice to Burman at MCAC, where a person named "Theresa Williams" signed for it on May 13, 2003.[50] To date, the government has provided no evidence that it has completed forfeiture of the $15,000.
2. Record Is Incomplete with Respect to the $15,000
The record is incomplete with respect to the $15,000. First, the government has provided no evidence that the DEA issued a declaration of forfeiture for the $15,000. If the DEA never forfeited the $15,000, the Court lacks jurisdiction over Burman's claim.[51]
Second, the government has not shown that its Notices of Forfeiture met the requirements of § 983(e). It has provided no evidence that Burman knew or had reason to know of the seizure in time to file a timely claim.[52] Moreover, the government has not shown that the Notices of Forfeiture were "reasonably calculated" to reach Burman. Burman apparently was not at the FDC in Houston in July 2001, when the first Notice of Forfeiture was delivered.[53] This notice, therefore, was inadequate. This leaves the Notice of Forfeiture sent to MCAC on November 26, 2001 and signed for by "Karen Gardner." What is missing is evidence that (i) Burman was incarcerated in the MCAC when the Notice arrived, (ii) Karen Gardner was a prison official, and (iii) the mail procedures at the MCAC were adequate.
Finally, the government has not briefed two issues. First, whether the DEA was required to send Burman denial notices (i) informing him that his request for judicial forfeiture proceedings had been rejected, and (ii) advising him of his right to file for remission or mitigation. Second, whether denial notices are subject to the requirements of § 983(e). If denial notices are required and subject to § 983(e), then the record is incomplete.[54]
Accordingly, the Court will RESERVE JUDGMENT on Burman's motion regarding the $15,000. The government shall supplement the record with the requested information.
*675 D. $6,000 in United States Currency (Asset I.D. No. 01-DEA-393652)
1. History of Notices with Respect to the $6,000
On July 20, 2001, the DEA sent a Notice of Forfeiture for $6,000 by certified mail, return receipt requested, to the following addresses:
(i) 14407 Sequoia Bend Boulevard, Houston, Texas, where Burman resided prior to his arrest. The Notice was returned unclaimed.[55]
(ii) The Law Offices of Ronald Green, Esq. in Houston, Texas. Someone named "T. Anderson" signed for the Notice.[56] On July 16, 2001, Green informed the DEA that he was no longer Burman's counsel and requested that correspondence be directed to the United States Marshal in Baltimore.[57]
(iii) The Federal Detention Center in Houston, Texas ("FDC-Houston"). The Notice was returned unclaimed.[58]
On November 26, 2001, the DEA sent a new Notice of Forfeiture for the $6,000 to the following:
(i) The MCAC in Baltimore, Maryland, where a person named "Karen Gardner" signed for it on November 29, 2001.[59]
(ii) The Law Offices of Thomas Saunders. The Notice was returned unclaimed.[60]
On March 11, 2002, the DEA declared that the $6,000 had been forfeited.[61] Even so, it subsequently sent a new Notice of Forfeiture, dated May 15, 2002, to the following:
(i) Wicomico County Jail in Salisbury, Md. This Notice was returned unclaimed.
(ii) 911 Dartmouth Glenway in Baltimore, Md. Burman's mother, Shirley Burman, signed for it.
The DEA received correspondence about the $6,000 from Burman on or around June 21, 2002. The government has only provided a copy of the envelope, which lists the return address as Shirley Burman's residence. In any event, the DEA construed the correspondence as a request for judicial forfeiture proceedings, but rejected the request as untimely.
In a letter dated June 28, 2002, the DEA informed Burman that he had 20 days to file a petition for remission or mitigation. The letter was sent to Shirley Burman's address, where someone named Eric Johnson signed for it.[62]
On July 15, 2002, Burman requested remission of the administrative forfeiture.[63] In a letter dated October 22, 2002, the DEA denied Burman's request. The DEA mailed a notice to the FDC-Houston, but it was returned.[64] The DEA apparently re-sent the denial on May 8, 2003 to:
(i) Shirley Burman's address, where Eric Johnson signed for it.
(ii) The MCAC, where Theresa Williams signed for it.
*676 2. Record is Insufficient with Respect to the $6,000
After the DEA finalized the forfeiture of the $6,000 on March 11, 2002, it continued to send Notices of Forfeiture to Burman and even entertained a request for remission. The government has not briefed whether the Court should limit its inquiry to the notice provided before the forfeiture, or whether the Court should also evaluate the notice sent after the forfeiture.
Even if the Court limits its inquiry to the notice provided before the forfeiture, the government must provide supplemental briefing. The government has provided no evidence that Burman knew of the pending forfeiture in enough time to file a timely claim. Moreover, the government has not shown that the Notices issued before the forfeiture were "reasonably calculated" to reach Burman in prison. Burman apparently was not at the FDC in Houston in July 2001, when the first Notice of Forfeiture was delivered.[65] This leaves the Notice of Forfeiture sent to MCAC on November 26, 2001 and signed for by "Karen Gardner." What is missing is evidence that (i) Burman was incarcerated in the MCAC when the letters arrived, (ii) Karen Gardner was a prison official, and (iii) the mail procedures at the MCAC were adequate.
The Court may also be required to consider the adequacy of the Notices sent after the property was forfeited. If it is, then the government must explain why it should prevail even though these Notices appear to have been inadequate,[66]
The government must supply the requested information before the Court can render a decision. Accordingly, the Court will RESERVE JUDGMENT on Burman's motion for the return of the $6,000.
E. $824 in U.S. Currency (DEA Asset I.D. No 01-DEA-393676)
1. History of Notices with Respect to the $824
On July 9, 2001, the DEA sent written Notice of Forfeiture for $824 by certified mail, return receipt requested, to the following addresses:
(i) 14407 Sequoia Bend Boulevard, Houston, Texas, where Burman resided prior to his arrest. The Notice was returned unclaimed.[67]
(ii) The Law Offices of Ronald Green, Esq. in Houston, Texas. Green had at one time represented Burman in a criminal case. "Larry V. Green" signed for the Notice.[68] On July 16, 2001, Ronald Green informed the DEA that he was no longer Burman's counsel and requested that correspondence be directed to the United States Marshal in Baltimore.[69]
(iii) The Federal Detention Center in Houston, Texas ("FDC-Houston"). A person whose name is illegible signed for the Notice on July 17, 2001, but the Notice was stamped "Returned to Sender."[70]
*677 On February 12, 2002, the DEA sent another Notice of Forfeiture to:
(i) The Maryland Correctional Adjustment Center ("MCAC"). The Notice was returned unclaimed.[71]
(ii) The Law Offices of Thomas Saunders. Saunders had been appointed as Burman's trial counsel in Burman's criminal case on October 5, 2001. Steven Spencer signed for the Notice on February 15, 2001.[72]
On May 17, 2002, the DEA sent a third Notice of Forfeiture, this time to
(i) 911 Dartmouth Glen Way, Baltimore, Md. This is the address of Burman's mother, Shirley Burman. The Notice was returned unclaimed.[73]
  Wicomico County Jail in Salisbury, Md.
           The Notice was returned unclaimed.[74]On August 2, 2002, the DEA sent a fourth Notice of Forfeiture to FDC-Houston. A person named "Stinebuck" signed for it on August 8, 2002, but the Notice was then stamped "Returned to Sender."[75]
On September 26, 2002, the DEA sent a fifth Notice of Forfeiture to the Central Virginia Regional Jail ("CVRJ") in Orange, Virginia. Someone wrote "Not Here" on the envelope and returned it to the DEA.[76]
On November 29, 2002, the DEA sent a sixth Notice of Forfeiture to the MCAC. The certified mail receipt was returned unsigned.[77]
On December 11, 2002, Burman, writing from the MCAC, challenged the forfeiture of the $824 and "all forfeiture property"; the claim was sworn, subject to penalties of perjury.[78] The DEA treated the letter as a request for judicial forfeiture proceedings for the $824 and referred the case to the United States Attorney for the District of Maryland. A letter informing Burman of the status of his claim was sent to the MCAC;[79] "Jessica Gandee" signed for it on January 27, 2003.[80]
On February 11, 2003, Assistant United States Attorney Christopher Romano drafted a letter offering to settle with Burman, but the government has provided no evidence that it ever sent the letter to him.
2. DEA Must Return the $824
Burman requested judicial forfeiture proceedings for the $824 in December 2002. The government had 90 days to file a complaint for forfeiture in federal district court or obtain a criminal indictment alleging that the property was subject to forfeiture.[81] It did not do so. The settlement offer does not qualify as a complaint. Accordingly, Burman's motion to set aside the forfeiture of the $824 is GRANTED.
IV. Conclusion
For the reasons stated herein, the Court will, by separate Order:
(i) VACATE the Order dated August 14, 2006;

*678 (ii) GRANT Burman's motion to set aside the forfeiture of the $824;
(iii) RESERVE JUDGMENT on Burman's motion for the return of the:
(a) motorcycle,
(b) jewelry,
(c) $15,000, and
(d) $6,000.
No later than February 28, 2007, the government shall submit the requested evidence and briefing. Burman will have until March 14, 2007 to respond. Because of the age of this case, the Court will not extend these deadlines, which provide ample time for the parties to supply the necessary factual and legal authority; and
(iv) DIRECT the Clerk to MAIL a copy of this Order and the accompanying Memorandum to Burman.

ORDER
Pending before this Court is Allah Burman's ("Burman") Motion for Return of Property. For the reasons stated in the Memorandum of even date, the Court hereby:
(i) VACATES the Order dated August 14, 2006;
(ii) GRANTS Burman's motion to set aside the forfeiture of the $824;
(iii) RESERVES JUDGMENT on Burman's motion for the return of the:
(a) motorcycle,
(b) jewelry,
(c) $15,000, and
(d) $6,000.
No later than February 28, 2007, the government shall submit the requested evidence and briefing. Burman will have until March 14, 2007 to respond. Because of the age of this case, the Court will not extend these deadlines, which provide ample time for the parties to supply the necessary factual and legal authority; and
(iv) DIRECTS the Clerk to MAIL a copy of this Order and the accompanying Memorandum to Burman.
It is so ORDERED.
NOTES
[1]  Each Notice is labeled "Notice of Seizure." For purposes of clarity, the Court will use the term "Notice of Forfeiture."
[2]  28 C.F.R. §§ 9.1-9.9. Claimants are eligible for remission of the forfeiture in some circumstances. They may, for example, establish that if they are "innocent" within the terms of the underlying forfeiture statute. 28 C.F.R. § 9.5(a). Claimants who are not entitled to remission but who can show that they were not involved in the underlying offense and that the forfeiture would cause them extreme hardship may be entitled to mitigation. 28 C.F.R. § 9.5(b).
[3]  See 18 U.S.C. § 983(e)(5) ("A motion under this subsection shall be the exclusive remedy for seeking to set aside a declaration of forfeiture under a civil forfeiture statute."); see also United States v. Minor, 228 F.3d 352, 355-57 (4th Cir.2000); Ibarra v. United States, 120 F.3d 472, 474-76 & n. 4 (4th Cir.1997).
[4]  18 U.S.C. § 983(a)(1)(F).
[5]  Deciding whether the government's efforts were reasonable requires a "context-specific inquiry." Minor, 228 F.3d at 358.
[6]  The Court previously issued a Memorandum and Order granting Burman's motion with respect to $824, denying it with respect to the jewelry and $6,000, and ordering further briefing on the motorcycle and $15,000 (Docket No. 10). In retrospect, the Court concludes that this Order was based on an inadequate legal and factual basis. Accordingly, the Court will VACATE the August 14th Order in its entirety.
[7]  The claim must "(i) identify the specific property being claimed; (ii) state the claimant's interest in such property; and (iii) be made under oath, subject to penalty of perjury." 18 U.S.C. § 983(2)(C).
[8]  If the government wishes to pursue this option, it should explain whether it is first required to return the property to Burman under § 983(a)(1)(F).
[9]  Government's Supplemental Briefing (hereinafter "Govt. Supp. Briefing"), Ex. 7 (Docket No. 15).
[10]  The DEA published announcements of the seizure of the motorcycle and the other contested items in The Wall Street Journal for three consecutive weeks during the summer of 2001. The government does not contend that these advertisements were sufficient by themselves to notify Burman of the seizure.

See Government's Response (hereinafter "Govt. Resp."), Ex. 154 (Docket No. 3); Govt. Supp. Briefing, Ex. 8. Moreover, the Fourth Circuit has stated that notice by publication while a person is imprisoned is a "mere gesture" and constitutionally inadequate. Minor, 228 F.3d at 358-59.
[11]  Govt. Supp. Briefing, Ex. 9.
[12]  Govt. Supp. Briefing, Ex. 10.
[13]  Govt. Supp. Briefing, Ex. 11.
[14]  Govt. Supp. Briefing, Ex. 11.
[15]  Govt. Supp. Briefing, Ex. 11.
[16]  Govt. Supp. Briefing, Ex. 15.
[17]  Govt. Supp. Briefing, Ex. 15.
[18]  Govt. Supp. Briefing, Ex. 15, 16.
[19]  Govt. Supp. Briefing, Ex. 16, 17.
[20]  Govt. Supp. Briefing, Ex. 21.
[21]  Govt. Supp. Briefing, Ex. 20.
[22]  Govt. Supp. Briefing, Declaration of Douglas A. Cash.
[23]  To reiterate, when attempting to serve notice on an incarcerated person, the government must (i) send a certified letter, return receipt requested, to the facility where the prisoner is housed, (ii) show that a prison official signed for the letter, and (iii) provide evidence that the facility's mail procedures were "reasonably calculated" to ensure that prisoners would receive their mail. Minor, 228 F.3d at 358.
[24]  Govt. Resp., Ex. 143.
[25]  In response to Notices of Forfeiture for other items, Green had already informed the DEA that he was no longer Burman's counsel and requested that correspondence be directed to the United States Marshal in Baltimore. (Govt.Supp.Briefing, Ex. 7).
[26]  Govt. Resp., Ex. 156.
[27]  Govt. Resp., Ex. 157.
[28]  Govt. Supp. Briefing, Ex. 9.
[29]  Govt. Supp. Briefing, Ex. 11.
[30]  Govt. Supp. Briefing, Ex. 11.
[31]  Govt. Supp. Briefing, Ex. 11.
[32]  Govt. Supp. Briefing, Ex. 15.
[33]  Govt. Supp. Briefing, Ex. 15, 16.
[34]  Govt. Supp. Briefing, Ex. 16, 17.
[35]  Govt. Supp. Briefing, Ex. 21.
[36]  Govt. Supp. Briefing, Ex. 20.
[37]  Govt. Resp., Ex. 159.
[38]  Govt. Resp., Ex. 160.
[39]  Govt. Resp., Ex. 161; Govt. Supp. Briefing, Ex. 22.
[40]  Govt. Resp., Ex. 162.
[41]  In his motion, Burman seeks the return of $26,000 in United States currency, but provides no DEA identification number. The government has supplied an affidavit stating that DEA records do not reflect the seizure of $26,000 from Burman. (Docket No. 3, Ex. 4) The government acknowledges, however, that agents seized $21,000 from the house at 14407 Sequoia Bend: $6,000 from one safe and $15,000 from another. The Court will assume that this is the money to which Burman refers. In this section, the Court will address the $15,000. It will address the $6,000 in another section.
[42]  Govt. Supp. Briefing, Ex. 27.
[43]  Govt. Supp. Briefing, Ex. 29.
[44]  Govt. Supp. Briefing, Ex. 7.
[45]  Govt. Supp. Briefing, Ex. 31.
[46]  Govt. Supp. Briefing, Ex. 39.
[47]  Govt. Resp., Ex. 100-103; Govt. Supp. Briefing, Ex. 38-41.
[48]  Govt. Supp. Briefing, Ex. 42.
[49]  Govt. Supp. Briefing, Ex. 43.
[50]  Although it is unclear from what the government submitted, the DEA may also have resent the notice to Burman in Orange, Virginia in October 2002. The DEA identification number for the $15,000 appears on the certified mail receipt that was signed by an individual named Roy Lewis. Govt. Supp. Briefing, Ex. 22.
[51]  See lbarra, 120 F.3d at 475-76.
[52]  Although Burman filed a claim on February 6, 2002, it was untimely.
[53]  Docket No. 15.
[54]  Burman did not respond to either of the denial notices. Further, the government has not shown that the denial notices were "reasonably calculated" to reach Burman in prison. The denial notice issued on February 27, 2002 was sent to Burman's attorney, Thomas Saunders. Under Minor, notice sent to an attorney is insufficient. This leaves the denial notice sent to MCAC on May 8, 2003. Although "Theresa Williams" signed for the notice, the government has not shown that (i) Burman was incarcerated at the FDC-Houston on May 13, 2003, when the notice arrived, (ii) Theresa Williams was a prison employee, and (iii) MCAC had in place adequate procedures to ensure that prisoners received their mail.
[55]  Govt. Resp., Ex. 89.
[56]  Govt. Resp., Ex. 91.
[57]  Govt. Supp. Briefing, Ex. 7.
[58]  Govt. Resp., Ex. 93.
[59]  Govt. Resp., Ex. 103.
[60]  Govt. Resp., Ex. 101.
[61]  Govt. Resp., Ex. 104.
[62]  Govt. Resp., Ex. 110, 111.
[63]  Govt. Resp., Ex. 112.
[64]  Govt. Resp., Ex. 113, 114.
[65]  Docket No. 15.
[66]  The Notice of Forfeiture sent to the Wicomico County Jail on May 15, 2002 was returned unclaimed. The second Notice, sent to Burman's mother, was also inadequate because the DEA was required to send notice to Burman in jail. The government has not otherwise shown that Burman knew of the seizure in time to file a timely claim. Although Burman did file a claim on or around June 21, 2002, the DEA denied it as untimely.
[67]  Govt. Supp. Briefing, Ex. 46.
[68]  Govt. Supp. Briefing, Ex. 49.
[69]  Govt. Supp. Briefing, Ex. 7.
[70]  Govt. Supp. Briefing, Ex. 51.
[71]  Govt. Supp. Briefing, Ex. 53.
[72]  Govt. Supp. Briefing, Ex. 55.
[73]  Govt. Supp. Briefing, Ex. 57.
[74]  Govt. Supp. Briefing, Ex. 59.
[75]  Govt. Supp. Briefing, Ex. 61.
[76]  Govt. Supp. Briefing, Ex. 63.
[77]  Govt. Supp. Briefing, Ex. 64.
[78]  Govt. Supp. Briefing, Ex. 68.
[79]  Govt. Supp. Briefing, Ex. 67.
[80]  Govt. Supp. Briefing, Ex. 65.
[81]  18 U.S.C. § 983(a)(3) The government "may not take any further action to effect the civil forfeiture of such property in connection with the underlying offense." 18 U.S.C. § 983(a)(3)(B).


428 F.2d 880
Richard J. WOODWARD, Ned P. Clyde, James I. Sherard, RaymondLundgren, Douglas C. Moorhouse, and David M. Greer, doingbusiness as Woodward-Clyde-Sherard & Associates, apartnership, Plaintiffs-Appellees,v.D. H. OVERMYER CO., Inc., a New York corporation, D. H.Overmyer Co., Inc., anOhio corporation,Defendants-Appellants.
Nos. 800, 801 and 802, Dockets 34606, 34748 and 34749.
United States Court of Appeals, Second Circuit.
Argued May 11, 1970.Decided June 9, 1970.

James H. Reidy, New York City, (Gerard L. Goettel, New York City, of counsel), for defendants-appellants.
William D. Powers, New York City (Leslie A. Hynes, New York City, of counsel), for plaintiffs-appellees.
Before FRIENDLY and KAUFMAN, Circuit Judges and BRYAN,* District judge.
FRIENDLY, Circuit Judge.

1
This action by six partners of Woodward-Clyde-Sherard & Associates (sometimes hereafter 'the Woodward partners') to foreclose a second mortgage on property in Albany County, N.Y., executed by D. H. Overmyer Co., Inc., a New York corporation (Overmyer N.Y.), in order to secure notes signed by D. H. Overmeyer Co., Inc., an Ohio corporation (Overmyer Ohio), and for a deficiency judgment, has given rise to a number of procedural problems.

2
The most important is whether the action is properly in federal court at all.  The complaint was filed in the Supreme Court of New York for Albany County, and Overmyer Ohio and Overmyer New York petitioned for removal.  The petition alleged that 'none of the individual parties plaintiff is a citizen of the State of New York or the State of Ohio but are all citizens of the State of California or of the State of New Jersey'; that Overmyer Ohio is an Ohio corporation with its principal place of business in New York; and that Overmyer New York is a New York corporation with its principal place of business in that state.  The petition was bad under the second sentence of 28 U.S.C. 1441(b), providing that an action not founded on the existence of a federal question 'shall be removable only if none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.'  While the action should therefore have been remanded if the plaintiffs had moved for such relief,1 no suggestion on this score was made until the Overmyer corporations brought the point to our attention.  Nevertheless under the 'strong' rule that federal jurisdiction may be challenged at any stage, even by the party who invoked it, see Wright, Federal Courts 7 (1970),2 we must consider the problem.

3
The severity of this rule stimulated judicial ingenuity to avoid it with respect to the issue with which we are here concerned.  In Handley-Mack Co. v. Godchaux Sugar Co., 2 F.2d 435 (6 Cir. 1924), Judge Knappen drew a distinction between 2 of the Act of March 3, 1875, 18 Stat. 470, authorizing removal, inter alia, of actions 'in which there shall be a controversy between citizens of different States,' which he deemed to be jurisdictional in the true sense, and the provision limiting removal in diversity cases to a defendant not a resident of the state where the action was brought.  Drawing on Baggs v. Martin, 179 U.S. 206, 21 S.Ct. 109, 45 L.Ed. 155 (1900), he held that where only the latter provision was violated and the plaintiff made no timely request for remand, the situation could be considered to be as if the plaintiff had brought the action in the federal court and, if jurisdiction would have existed in that event, objection on the score of nonremovability would be deemed waived.  Although the historical argument was rather shaky,3 the result was desirable and Judge L. Hand, writing also for Judge Swan and Judge A. N. Hand, found Judge Knappen's opinion 'conclusive.'  Bailey v. Texas Co., 47 F.2d 153, 155 (2 Cir. 1931).  We are quite content to follow our distinguished predecessors, especially since the two cases were cited in American Fire & Casualty Co. v. Finn, 341 U.S. 6, 16-17 n.14, 71 S.Ct. 534, 95 L.Ed. 702 (1951), with what could be regarded as approval and certainly was not disapproval.

4
Not seriously disputing this, appellants question whether there would have been jurisdiction had the action been originally brought in a federal court.  The only doubt arises from the fact that the Woodward partnership has its principal office in New York and is alleged to have been organized under New York law, whatever that may mean.  Although New York permits partners to sue or be sued in the partnership name, CPLR 1025, this does not alter the long-standing rule that, for purposes of diversity jurisdiction, the court looks to the citizenship of the partners, Great Southern Fireproof Hotel Co. v. Jones,  177 U.S. 449, 456, 20 S.Ct. 690, 44 L.Ed. 842 (1900); A.D.S. Developers, Inc. v. Tucker, 263 F.Supp. 986 (E.D.Pa.1967); contrast Colonial Realty Corp. v. Bache & Co., 358 F.2d 178, 183-184 (2 Cir. 1966), dealing with a limited partner.  We thus uphold federal jurisdiction and must now recount the proceedings below.

5
Immediately upon the action being removed, defendants, on January 2, 1968, filed a motion to dismiss the complaint.  This was based on a contention concerning improper presentment of the allegedly defaulted note of Overmyer Ohio, a contention so utterly trivial and unmeritorious as not to warrant statement here.  Three weeks later they filed a motion for a change of venue to the District of Massachusetts.  This motion, almost certainly ill-founded in a mortgage foreclosure action, see 1 Moore, Federal Practice P0.142(2.-1) and cases there cited in n.16, alleged that the notes in suit had been given for plaintiffs' performance of engineering services in many states; that after delivery of the notes and payment of some, defendants learned that plaintiffs had 'unwarrantably and negligently' delegated their duties to others; and that as a result defendants' affiliate, Green & White Construction Company, Inc., on whose behalf the notes had been given by Overmyer Ohio, had instituted an action to recover damages in the District of Massachusetts in which Overmyer New York had joined to seek an injunction against the mortgage foreclosure.

6
After submitting affidavits in opposition to both motions, plaintiffs, in June 1968, cross-moved for summary judgment.  The moving affidavit recited that the Massachusetts action, brought by Green & White and Overmyer New York against Goldberg-Zoino & Associates, Inc., a Massachusetts corporation, and two of the Woodward partners, had been dismissed with respect to the latter on jurisdictional grounds.  A supplemental affidavit later apprised the court that the judge in Massachusetts had allowed Green & White but not Overmyer New York to file an amended complaint naming all the Woodward partners.  In October 1968 defendants responded with an affidavit of their general counsel again raising the presentment issue and mentioning the claim of professional misconduct in a conclusory fashion, as hereafter noted.  At the same time Green & White moved for leave to intervene as a plaintiff; its proposed complaint asserted the same claim against the Woodward partners it had alleged in Massachusetts.  All four motions were argued in November.  A year later, on November 20, 1969, the court denied defendants' motions to dismiss the complaint and for change of venue and Green & White's motion to intervene, and granted plaintiffs' motion for summary judgment.  The portion of the opinion relating to the last discussed only the argument about presentment and said nothing about the claim of professional negligence.  The judge directed plaintiffs' attorneys to prepare an order which, unless consented to, should be settled on notice.

7
Defendants responded with a renewed motion, served December 18, 1969, this time made by them as well as by Green & White, to allow the latter to intervene as a plaintiff in order to assert its claim against the plaintiffs and in the meanwhile to stay the summary judgment.  Circumstances were alleged to have changed because of the discontinuance of the Massachusetts action due to inability to serve all the Woodward partners.  In one of the moving affidavits, by the general counsel of the Overmyer corporations, we find the first inkling that this claim, still alleged to be vested in Green & White, had somehow passed to Overmyer Ohio.  The affidavit asserted that in February 1968, some eight months before the initial Green & White motion to intervene as a plaintiff, Overmyer Ohio had assumed all its liabilities 'and in consideration therefor became entitled to all the claims and accounts receivable of said Green & White, liquidated and unliquidated'; that 'in order to make said transfer effective' Green & White and Overmyer Ohio adopted resolutions transferring the claim against the Woodward partners to the latter;4 and that 'it is the purpose of this assignment to express the true ownership of this claim, and make possible its satisfaction by decision of this Court which has jurisdiction of the W-C-S partnership.'  Plaintiffs filed opposing papers and the judge denied the motion on January 5, 1970.

8
Somewhere along the line plaintiffs submitted an order of foreclosure and sale in the usual form.  On January 14, 1970, defendants served a counter-proposed order with only a minor modification.  The judge signed the plaintiffs' order on January 23.

9
The final chapter was a motion by the defendants and Green & White dated February 12, 1970, for a rehearing with respect to their renewed motion.  This asked the judge to sign a new order that would allow the Overmyer defendants to file answers to the complaints containing counterclaims within ten days, and to apply for a stay of the judgment of foreclosure and sale within another ten.  Instead the judge signed an order by which he simply granted rehearing and adhered to his previous decision.  With that this tedious recital ends.

10
The case illustrates a difficulty that may arise when a defendant, as required by F.R.Civ.P. 12(b), moves under that rule before answer and plaintiff counters with a motion for summary judgment.  The Overmyer corporations argue that entry of summary judgment against them deprived them of the right, conferred by F.R.Civ.P. 12(a), whereby if the court denies a 12(b) motion or postpones its disposition until a trial on the merits, the defendant may file a responsive pleading within ten days.  They contend that if the judge had denied their motions promptly instead of holding them for disposition with the plaintiffs' summary judgment motion, they could have filed an answer containing the counterclaim for professional malpractice and should be allowed to do so even at this late stage.

11
We can conceive of a situation, e.g., where a defendant acquired a counterclaim after submission of a plaintiff's summary judgment motion, where a contention of this sort might have merit.  But this is not such a case.  Before defendants had even made their motion to dismiss they were aware of the claim of defective service rendered to Green & White.  When plaintiffs moved for summary judgment, it was open to the Overmyer corporations to raise against this the point that because of plaintiffs' misconduct the consideration for the notes had failed, quite apart from any ruling the court might make on Green & White's motion to intervene for the purpose of seeking a recovery.  Yet the only paper they submitted in answer to plaintiffs' motion was a short affidavit by their general counsel which, after attempting to deal with the presentment issue, set forth in a conclusory manner that it had been 'officially brought' to his attention that the work for which the notes had been given 'was negligently, carelessly, unprofessionally, unskillfully performed and unlawfully delegated without authority or permission by said partnership to other persons unknown to Green & White Construction Company, Inc., for whom said engineering work was to be done.'5 This was so far from meeting the requirements of F.R.Civ.P. 56(e) that discussion or citation of authority would be supererogatory.  Moreover the judge had every reason to suppose that on this issue the defendants were placing primary reliance on the claim which their affiliate, Green & White, sought to assert by its motion for leave to intervene,6 although, as defendants now contend, Green & White had transferred the claim to Overmyer Ohio in February so that the affidavit in response to the summary judgment motion could also have brought Overmyer's potential counterclaim to the court's attention.  Perhaps, despite all this, the judge might have allowed defendants to plead a counterclaim if they had done this within 10 days of his denial of their motion to dismiss on November 20, 1969.  Instead they waited until December 18 to make a motion, returnable January 5, 1970, which was primarily a renewal of the intervention motion although, as stated, one of the moving affidavits intimated that Overmyer Ohio had been the real owner of the claim all along.  Not until February 12, 1970, nearly three months after the denial of their Rule 12(b) motion, did defendants clearly indicate a desire to plead a counterclaim.

12
Defendants complain that they have never had a day in court on their claim of professional malpractice and that the statute of limitations may now bar them from having one.  While this sort of contention inevitably strikes a responsive chord in the judicial ear, if ever there were a case where a litigant's plight was of his own making, this is it.  Bearing in mind the long delay to which plaintiffs have already been put, we think it clear that the interests of justice require affirmance of the judgment.

13
It is so ordered.

*
 Of the Southern District of New York, sitting by designation

1
 Since, under 28 U.S.C. 1332(c), Overmyer Ohio is deemed a citizen of New York for the purpose of 1441, there would have been no possibility of justifying the removal under 1441(c)

2
 The quoted adiective comes, of course, from Chief Justice Erle's famous characterization, quoted in Pound, Mechanical Jurisprudence, 8 Colum.L.Rev. 605, 608 (1908), and III Pound, Jurisprudence 511 (1959).  Conformably with Pound's prediction that such rules ultimately lead to curative action, the American Law Institute has proposed legislation to limit this harsh doctrine.  Study of the Division of Jurisdiction between State and Federal Courts 1386

3
 The 1875 statute allowed removal, without restriction, at the instance of either plaintiff or defendant.  But these sweeping provisions were soon superseded by the Act of March 3, 1887, 24 Stat. 552, as corrected by the Act of August 13, 1888, 25 Stat. 433, both of which limited removal to defendants.  Section 2 of the 1888 statute broke removal into two categories.  Actions presenting a federal question might be removed by any defendant, but diversity actions could be removed only 'by the defendant or defendants therein, being non-residents of that State,' subject to a provision with respect to separable controversies.  This was carried forward in 28 of the Judicial Code of 1911, 36 Stat. 1094.  In other words, from 1888 until 1948 the provision limiting removal for diversity to a non-resident defendant was in the same sentence authorizing removal itself, and a rather sharp scalpel was needed to dissect out one part of the sentence as jurisdictional and leave the other as not

4
 The affidavit did not give the dates of the resolutions or attach copies

5
 A following paragraph was to the same effect

6
 This motion was clearly for permissive intervention under F.R.Civ.P. 24(b) and denial was not an abuse of discretion


FOR PUBLICATION

ATTORNEYS FOR APPELLANT:          ATTORNEYS FOR APPELLEES:
KEVIN C. TYRA                     Attorneys for McGrath Refrigeration,
BETH L. RIGA                      Inc. and John D. McGrath
The Tyra Law Firm                 DAVID E. BALLARD
Indianapolis, Indiana             CLINT A. ZALAS
                                  Lee, Groves & Zalas
                                  South Bend, Indiana

                                  Attorneys for Michiana Contracting,
                                  Inc.
                                  KRISTY RANS
                                  CHRISTOPHER UYHELJI
                                  Gardner & Rans, P.C.
                                                                       FILED
                                                                  Jul 13 2012, 8:49 am
                                  South Bend, Indiana
                                                                           CLERK
                                                                         of the supreme court,
                                  Attorney for John Dzierla and          court of appeals and
                                                                                tax court

                                  Associates
                                  SCOTT KELLER
                                  South Bend, Indiana

                                  Attorneys for Climate Makers, Inc.
                                  MARK FRYMAN
                                  MARIETTO MASSILLAMANY
                                  Starr Austen & Miller, LLP
                                  Logansport, Indiana

                                  Attorneys for Shambaugh & Son, L.P.
                                  REBECCA MAAS
                                  AIMEE COLE
                                  FREEDOM VILLA
                                  Smith Fisher Maas & Howard, P.C.
                                  Indianapolis, Indiana

                           IN THE
                 COURT OF APPEALS OF INDIANA

BROTHERHOOD MUTUAL INSURANCE      )
COMPANY as Subrogee of PLYMOUTH   )
WESLEYAN CHURCH,                  )
                                  )
     Appellant-Plaintiff,         )
                                      )
              vs.                     )                No. 50A03-1111-CT-518
                                      )
MICHIANA CONTRACTING, INC., McGRATH )
REFRIGERATION, INC., JOHN D. McGRATH, )
JOSEPH A. DZIERLA AND ASSOCIATES,     )
INC. and SHAMBAUGH & SON, L.P.,       )
                                      )
       Appellees-Defendants.          )

                  APPEAL FROM THE MARSHALL CIRCUIT COURT
                       The Honorable Curtis D. Palmer, Judge
                           Cause No. 50C01-1010-CT-37

                                      July 13, 2012

                            OPINION - FOR PUBLICATION

MAY, Judge

      Brotherhood Mutual Insurance Company (“Brotherhood”), as subrogee of Plymouth

Wesleyan Church (“Church”), appeals summary judgment for Michiana Contracting, Inc.

(“Michiana”); McGrath Refrigeration, Inc. and John D. McGrath (collectively, “McGrath”);

Joseph A. Dzierla and Associates, Inc. (“Dzierla”); and Shambaugh & Son, L.P.

(“Shambaugh”) (collectively, “Appellees”). Brotherhood presents three issues for our

review, one of which is dispositive: whether the wooden gym floor, which was the subject of

the Church’s insurance claim with Brotherhood, was within the scope of work pursuant to the

contract and therefore subject to a waiver of subrogation. We reverse and remand.

                                            2
                           FACTS1 AND PROCEDURAL HISTORY

        On January 11, 2007, Michiana and the Church entered into a contract for the

construction of an addition to the Church’s main building.                     The two-story addition

encompassed 48,195 square feet and included space for classrooms, a student center, and a

gymnasium.

        The contract between the Church and Michiana includes a waiver of subrogation,

which states in relevant part:

        11.4.7 The Owner and Contractor waive all rights against (1) each other and
        any of their subcontractors, sub-subcontractors, agents and employees, each of
        the other, and (2) the Architect, Architect’s consultants, separate contractors
        described in Article 6, if any, and any of their subcontractors, sub-
        subcontractors, agents and employees, for damages caused by fire and other
        causes of loss to the extent covered by property insurance obtained pursuant to
        this Paragraph 11.4 or other property insurance applicable to the Work, except
        such rights as they have to proceeds of such insurance held by the Owner as
        fiduciary. The Owner or Contractor, as in Article 6, if any, and the
        subcontractors, sub-subcontractors, agents and employees of any of them, by
        appropriate agreements, written where legally required for validity, similar
        waivers each in favor of other parties enumerated herein. The policies shall
        provide such waivers of subrogation by endorsement or otherwise. A waiver
        of subrogation shall be effective as to a person or entity even though that
        person or entity would otherwise have a duty of indemnification, contractual or
        otherwise, did not pay the insurance premium directly or indirectly, and
        whether or not the person or entity had an insurable interest in the property
        damaged.

(App. at 84.)

1
  We heard oral argument on June 1, 2012, in Florence, Indiana as part of the Indiana State Bar Association’s
(ISBA) Solo and Small Firm Conference. We thank the ISBA staff for their hospitality and commend counsel.
on the quality of their advocacy.

                                                     3
       The contract between the Church and Michiana defines “Work” as “the construction

and services required by the Contract Documents, whether completed or partially completed,

and includes all other labor, materials, equipment and services provided or to be provided by

the Contractor to fulfill the Contractor’s obligations. The Work may constitute the whole or

a part of the Project.” (Id. at 55.) The contract defines “Project” as “the total construction of

which the Work performed under the Contract Documents may be the whole or a part and

which may include construction by the Owner or by separate contractors.” (Id.)

       Language regarding the installation of the gym floor appears in various portions of the

main contract document, including line items for the construction of a concrete floor and

waterproofing. With regard to the gym floor, the contract also specifically states:

       Alternative Costs
       Alternative #1 – Vinyl Composition Tile at Gymnasium
       Furnish and install VCT flooring at gymnasium with line kit in lieu of sealed
       concrete
                                                                ADD:          $11,610
       Alternative #2 – Wood Gym Floor
       Furnish and install maple gymnasium floor 3/8” padded wafer wood system
       using 25/32”, 2 – ¼” third grade maple) [sic] in lieu of sealed concrete.
                                                                ADD:          $54,275

(Id. at 29) (emphasis in original). The contract does not indicate the Church agreed to either

of the “Alternative Costs.” Instead, after Michiana poured and sealed the concrete floor for

the gym, the Church, without assistance from Michiana, covered the concrete with wood

flooring.

       The construction was completed on April 30, 2008, and the Church made its final

                                               4
payment for the work on September 28, 2008. On January 3, 2009, a frozen sprinkler pipe

broke above the ceiling of the gymnasium. The wooden gym floor was destroyed, and the

Church filed an insurance claim to repair the floor. Brotherhood, the Church’s insurance

company, paid $37,355.80 for the claim.

          On October 8, 2010, Brotherhood, as subrogee of the Church, sued Michiana,

claiming Michiana breached its contract with the Church because it did not “properly

construct and/or oversee the construction of the addition,” (id. at 2); breached the implied

warranty of workmanlike performance because it did not “use reasonable skill in the work it

performed at the Church,” (id. at 3); and was negligent because it did not construct the

addition “so as to prevent the sprinkler lines from freezing.” (Id. at 4.) On December 15,

Brotherhood amended the claim to include similar breach of contract, breach of implied

warranty of workmanlike performance, and negligence allegations against the other

Appellees.

          On August 26, 2011, Dzierla filed a motion for summary judgment and argued

Brotherhood’s complaint was “completely barred by a waiver of subrogation provision

applicable to the Construction Contract which expressly prohibits subrogation claims for

damages covered by property insurance.” (Id. at 92.) McGrath moved for summary

judgment on the same ground, and also claimed summary judgment was appropriate because

the wooden gym floor was “work” as defined by the contract, and thus it was subject to the

waiver of subrogation. (Id. at 110.)2

2
    Michiana joined McGrath’s motion for summary judgment.
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       On September 28, Brotherhood responded to the motions for summary judgment and

filed its own motion for partial summary judgment. In its own motion, Brotherhood argued:

       1) the [Brotherhood] policy with the church was outside the scope of the
       waiver of subrogation, 2) the damages for which [Brotherhood] seeks
       compensation are not to the “Work” of the contract between the Church and
       Michiana, 3) the waiver of subrogation only applied to the “Work” of the
       contract, which did not include the gym floor, and 4) the contract failed to put
       the Church on notice that it was indemnifying defendants for their own
       negligence.

(Id. at 133.) Brotherhood’s response to the Appellees’ motions stated essentially the same

arguments and indicated summary judgment for the Appellees was not appropriate because

there was a genuine issue of material fact whether the gym floor was personal property and

thus not subject to the provisions of the contract between the Church and Michiana, or if the

wooden gym floor was within the scope of work described in the contract and subject to the

waiver of subrogation.

       On October 20, the trial court granted summary judgment for the Appellees and

denied partial summary judgment for Brotherhood.

                             DISCUSSION AND DECISION

       Summary judgment is appropriate if the “designated evidentiary matter shows that

there is no genuine issue as to any material fact and that the moving party is entitled to

judgment as a matter of law.” Indiana Trial Rule 56(C). The moving party bears the burden

of making a prima facie showing that there are no genuine issues of material fact and that it

is entitled to judgment as a matter of law. Huntington v. Riggs, 862 N.E.2d 1263, 1266 (Ind.

                                              6
Ct. App. 2007), trans. denied. If the moving party meets these two requirements, the burden

shifts to the non-movant to set forth specifically-designated facts showing that there is a

genuine issue of material fact for trial. Id.

       “A genuine issue of material fact exists where facts concerning an issue which would

dispose of the litigation are in dispute or where the undisputed material facts are capable of

supporting conflicting inferences on such an issue.” Id. “On appeal, we are bound by the

same standard as the trial court, and we consider only those matters which were designated at

the summary judgment stage.” Id. We will liberally construe the non-movant’s designated

evidence to ensure he is not improperly denied his day in court. Ind. Dept. of Rev. v. Caylor-

Nickel Clinic, 587 N.E.2d 1311, 1313 (Ind. 1992). “In addition, ‘[t]he fact that the parties

[made] cross-motions for summary judgment does not alter our standard of review. Instead,

we must consider each motion separately to determine whether the moving party is entitled to

judgment as a matter of law.’” Mahan v. Am. Standard Ins. Co., 862 N.E.2d 669, 676 (Ind.

Ct. App. 2007).

       We review and interpret the language of a contract de novo. Gerstbauer v. Styers, 898

N.E.2d 369, 379 (Ind. Ct. App. 2008). When a contract is clear and unambiguous, the

language must be given its clear meaning. Id. An ambiguity exists where a provision is

susceptible to more than one interpretation and reasonable persons would differ as to its

meaning. Id. The goal of contract interpretation is to ascertain and enforce the parties’ intent

as manifested in the language of the contract. Id. We construe the contract as a whole and

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consider all provisions of the contract, not just the individual words, phrases, or paragraphs.

Id. We will reverse a summary judgment based on the interpretation of a contract if the trial

court misapplies the law. Perryman v. Motorist Mut. Ins. Co., 846 N.E.2d 683, 687 (Ind. Ct.

App. 2006).

       The trial court found the wooden gym floor was within the “Scope of Work” under the

contract:

       15. The court finds that the installation of a floor (of some type) within the
       gymnasium was part of the Work and a part of the Project as defined by the
       contract regardless of whether it was installed by the general contractor, a
       subcontractor, an outside contractor hired separately by the church, or by the
       church itself. The gymnasium floor was not analogous to the contents of a
       building which would not have been covered by the waiver of subrogation
       clause as discussed in Midwestern Indemnity Co. v. System Builders, Inc., 801
       N.E.2d 661 (Ind. App. 2004) and Town of Silverton v. Phoenix Heat Source
       System, Inc., 948 P.2d 9 (Colo. App. 1997).

(App. at 191.) Brotherhood argues that finding “ignored the terms in the contract and

incorrectly applied the law to the facts[.]” (Br. of Appellant at 10.)

       Brotherhood claims the trial court should have interpreted the contract by reading

Section 1.1.3 of A201-1997, a document with terms incorporated into the main contract, and

Section 0800.1(A)(6) of the Owner’s Special Conditions under the contract. Section 1.1.3

defines “work” under the contract as: “the construction and services required by the Contract

Documents, whether completed or partially completed, and includes all other labor, materials,

equipment and services provided or to be provided by the Contractor to fulfill the

Contractor’s obligations. The Work may constitute the whole or a part of the project.” (App.

at 55) Section 0800.1(A)(6) defines the terms “provide” or “to be provided” as “work and

                                              8
items to be furnished and/or installed by the contractor.” (Id. at 12.) Thus, Brotherhood

contends, the two sections should be read together to state: “‘Work’ is defined as the

construction and services required by the Contract documents . . . [which] includes all other

labor, materials, equipment and services furnished and/or installed by the Contractor to fulfill

the Contractor’s obligations.” (Br. of Appellant at 11) (emphasis omitted).

       Based on its reading of the two sections, Brotherhood asserts the wooden gym floor,

which was the subject of the insurance claim, was not “Work” because, while Michiana

poured and sealed the concrete for the gym floor, the Church installed the wood floor atop

the concrete without assistance from Michiana. In addition, Brotherhood contends the

contract does not contain exact specifications for the installation of the wooden gym floor;

instead, the contract mentions the gym floor as a series of options. Because the installation

of the wooden gym floor was not “Work” pursuant to the contract, Brotherhood concludes, it

does not fall under the terms of the waiver of subrogation agreement, and summary judgment

was inappropriate.

       We agree. Under the section of the contract entitled, “Scope of Work” (App. at 21),

there are lists of multiple types of construction to be completed. Each task is indicated as

part of a numbered list, and there are no dollar amounts next to each individual task. In

contrast, the information specific to the installation of the wooden gym floor, such as the type

of flooring to be used in lieu of sealed concrete, is listed after all other tasks, under a section

entitled, “Alternative Costs.” (Id. at 29.) The word “ADD” is present before the dollar

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amounts indicating the cost of each option. (Id.)

       Neither party designated evidence the Church approved either option, nor is there any

indication Michiana charged the Church for the installation of the wooden gym floor. In fact,

it seems undisputed the Church installed the wooden gym floor without Michiana’s

assistance. The parties never agreed the addition of the wooden gym floor installation was

“work” under the contract, and we are not at liberty to rewrite the contract to include the

wooden gym floor installation. See Four Seasons Mfg., Inc. v. 1001 Coliseum, LLC, 870

N.E.2d 494, 501 (Ind. Ct. App. 2007) (we will not add provisions not agreed upon by the

parties).

       The installation of the wooden gym floor was not accepted as part of the work and

thus not added to the total owed to Michiana, and the Church in fact installed the wooden

gym floor at issue. The wooden gym floor therefore was not within the “Scope of Work”

forthe project and therefore was not subject to the waiver of subrogation. Therefore, we

reverse the summary judgment and remand for proceedings consistent with this opinion.

       Reversed and remanded.

BAKER, J., and BAILEY, J., concur.

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