United States of America v. Chevrolet Tahoe 1999, VIN #1GNEK13R7XJ487970

Filing 11

ORDER granting 10 Motion for Default Judgment. Defendant 1999 Chevrolet Tahoe, VIN 1GNEK13R7XJ487970, is forfeited to the United States. Signed by Magistrate Judge Charles R Pyle on 1/6/12.(SMBE)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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United States of America,

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Plaintiff,
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vs.
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1999 Chevrolet Tahoe,
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VIN 1GNEK13R7XJ487970,
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Defendant.
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No. CV-11-00640-TUC-CRP
ORDER AND
DEFAULT JUDGMENT

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The United States commenced this civil forfeiture action in October 2011. Doc. 1.

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The government seeks the forfeiture of a 1999 Chevrolet Tahoe on the ground that on June

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5, 2011, the vehicle was involved in offenses relating to unlawful transportation of an alien

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into or within the United States, 8 U.S.C. § 1324(a)(1)(A). Id. at 1-2. The vehicle presently

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is in the custody of the United States Customs and Border Protection within this Court's

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jurisdiction. Id. at 2.

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Believing that Brian Edmiston may claim an interest in the vehicle, see id., the

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government provided him written notice of this action and posted the action on the website

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www.forfeiture.gov. Docs. 6, 7. Edmiston has filed no claim. The Clerk has entered his

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default as to any interest he may have in the defendant property pursuant to Rule 55(a) of the

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Federal Rules of Civil Procedure. Doc. 9.

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The government has filed a motion for default judgment against Edmiston and all

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other persons who may claim an interest in the defendant property. Doc. 10. No response

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has been filed, and the time for doing so has expired. See LRCiv 7.2(c). For reasons stated

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below, the Court will grant the motion.

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Because Edmiston's default has been entered under Rule 55(a), and given that no other

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person has filed a claim or otherwise appeared in this action, the Court has discretion to grant

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default judgment pursuant to Rule 55(b). See Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th

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Cir. 1980). Factors to be considered in deciding whether to grant default judgment include

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the possibility of prejudice to the government absent a default judgment, the merits of the

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forfeiture request, the sufficiency of the complaint, the monetary value at stake, the

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possibility of a dispute concerning material facts, whether default was due to excusable

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neglect, and the policy favoring a decision on the merits. See Eitel v. McCool, 782 F.2d

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1470, 1471-72 (9th Cir. 1986). In applying the Eitel factors, "the factual allegations of the

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complaint, except those relating to the amount damages, will be taken as true." Geddes v.

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United Fin. Group, 559 F.2d 557, 560 (9th Cir. 1977); see Fed. R. Civ. P. 8(b)(6).

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Having considered the government's motion and relevant Eitel factors, and having

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reviewed the verified complaint and supporting affidavit (Doc. 1-2), the Court concludes that

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default judgment is appropriate. The Court will grant default judgment against Edmiston and

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all other persons who may claim an interest in the defendant property. See 8 U.S.C. §

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1324(b); United States v. One 2003 Kenworth Tractor, No. C-06-536, 2007 WL 1467085,

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at *5 (S.D. Tex. May 15, 2007) (granting default judgment with respect to forfeiture of

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tractor-trailer allegedly involved in alien smuggling); United States v. $86,496.00, No.

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CV-07-1693-PHX-DGC, 2008 WL 2039355, at *2-4 (D. Ariz. May 12, 2008) (discussing

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the legal significance of failing to file a proper claim to the defendant property).

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The government requests the issuance of a certificate of reasonable cause pursuant to

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28 U.S.C. § 2465 (Doc. 10 at 2), but makes no argument in support of this request. Section

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2465 relates to the return of property to a claimant and liability for wrongful seizure. Given

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that default judgment will be entered in favor of the government, the statute seems

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inapplicable. The government's request is denied.

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IT IS ORDERED:

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1.

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granted.

Plaintiff United States of America's motion for default judgment (Doc. 10) is

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Pursuant to Rule 55(b), default judgment is entered in favor of the United

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States and against Brian Edmiston and all other persons who may claim an interest in

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Defendant 1999 Chevrolet Tahoe, VIN 1GNEK13R7XJ487970.

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Defendant 1999 Chevrolet Tahoe, VIN 1GNEK13R7XJ487970, is forfeited to

the United States.

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The Clerk is directed to terminate this action.

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DATED this 6th day of January, 2012.

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