United States of America v. Real Property located at 1 Mile Up Hennessey Road, Burnt Ranch, California, APN: 008-430-02

Filing 55

ORDER signed by Judge Garland E. Burrell, Jr., on 9/21/11 ORDERING that 43 the motion to set aside the clerk's entry of default against Mr. Pickle is DENIED. (Kastilahn, A)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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United States of America,
Plaintiff,

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v.

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Real Property located at 1 Mile
Up Hennessey Road, Burnt Ranch,
California, APN: 008-430-02,
James E. Pickle, Terry J.
Williams, and Thomas A. Pickle,

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2:09-cv-1940-GEB-GGH
ORDER DENYING MOTION TO SET
ASIDE ENTRY OF DEFAULT*

Defendants.
________________________________

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Erlinda Pickle (Mrs. Pickle), in her capacity as appointed
Probate Conservator of Thomas A. Pickle (Mr. Pickle), moves to set aside
the Clerk’s entry of default against Mr. Pickle.

Mrs. Pickle argues

that the recent Ninth Circuit decision in United States v. Signed
Personal Check No. 730 of Yurban S. Mesle (“Mesle”), 615 F.3d 1085 (9th
Cir. 2010), warrants a finding that “good cause” exists for vacating the
entry of default against Mr. Pickle. The government opposes the motion,
arguing that notwithstanding the Mesle decision, Mrs. Pickle has not
shown the existence of

“good cause” justifying issuance of an order

vacating the Clerk’s entry of default.

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I.

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LEGAL STANDARD

Federal Rule of Civil Procedure 55(c) prescribes: “The court

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*

argument.

This matter is deemed suitable for decision without oral
E.D. Cal. R. 230(g).
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may set aside an entry of default for good cause . . . .”

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are considered when determining whether good cause exists justifying

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issuance of an order vacating the Clerk’s entry of default: (1) whether

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the party seeking to set aside the entry of default engaged in culpable

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conduct that led to the default; (2) whether the party seeking to set

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aside the entry of default had no meritorious defense; or (3) whether

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reopening the entry of default would prejudice the other party.

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615 F.3d at 1091.

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finding that any one of these factors is true is sufficient reason for

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the district court to refuse to set aside the [entry of] default.”

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Mesle, 615 F.3d at 1091 (citing Franchise Holding II, LLC v. Huntington

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Rests. Grp., Inc., 375 F.3d 922, 926 (9th Cir. 2004)).

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seeking to [set aside the entry of default] bears the burden of

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demonstrating that these factors favor [setting aside the entry of

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default].”

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Cir. 2001).

Three factors

Mesle,

“The standard . . . is disjunctive, such that a

“[T]he party

TCI Group Life Ins. Plan v. Knoebber, 244 F.3d 691, 696 (9th

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II.

BACKGROUND

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This is an in rem action brought by the United States against

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Real Property located at 1 Mile Up Hennessey Road, Burnt Ranch, CA.

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(Compl. ¶ 3.)

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United States seeks to forfeit the defendant real property, including

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any right, title and interest in the whole of any lot or tract of land

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and any appurtenances or improvement thereon, on the grounds that said

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real property was used or intended to be used, in any manner or part, to

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commit, or to facilitate the commission of a violation of 21 U.S.C. §

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841 et seq., . . . and is therefore subject to forfeiture to the United

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States pursuant to 21 U.S.C. § 881(a)(7).”

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The government alleges in its Complaint that “[t]he

Id. ¶ 4.

Mr. Pickle, who is the recorded owner of the defendant real
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property, was personally served with the forfeiture complaint on July

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30, 2009.

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Pickle disappeared sometime after being personally served and his

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whereabouts are unknown.

(Notice of Process Receipt and Return, ECF No. 8.)

Mr.

(Mot. 3:17-18.)

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Mr. Pickle’s attorney, on Mr. Pickle’s behalf, responded to

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the government’s complaint by filing a claim of interest in the property

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and an answer to the government’s complaint.

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Pickle’s attorney also verified the claim and answer on behalf of Mr.

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Pickle.

Id.

(ECF Nos. 9, 14.)

Mr.

The government filed a motion to strike the claim and

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answer of Thomas A. Pickle on the ground that Mr. Pickle failed to

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personally verify his claim and answer, which was granted on February 3,

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2010.

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against Mr. Pickle in this action.

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(ECF No. 21.)

On March 2, 2010, the Clerk entered default
(ECF No. 23.)

On February 25, 2010, the Superior Court of California, County

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of

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Conservator for Mr. Pickle.

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Mrs. Pickle received authorization from the Superior Court to proceed

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with acting on Mr. Pickle’s behalf in this case in her capacity as

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Probate Conservator.

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a claim and answer on behalf of Mr. Pickle.

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Forfeiture Case, ECF No. 31; Ans. to Compl., ECF No. 32.)

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III.

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1.

Trinity

(“Superior

Court”)

appointed

(Mot. Ex. A.)

(Mot. Ex. C.)

Mrs.

Pickle

as

Probate

Further, on July 12, 2010,

On July 20, 2010, Mrs. Pickle filed
(See Claim in Civil

DISCUSSION

Meritorious Defenses
Mrs.

Pickle

argues

that

Mr.

Pickle

has

two

meritorious

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defenses against the present forfeiture action that justify setting

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aside the Clerk’s entry of default: first, that probable cause did not

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exist for the search of the defendant property and therefore the search

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violated of the Fourth Amendment; and second, that requiring forfeiture
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of the entire property constitutes an excessive fine proscribed by the

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Eighth Amendment.

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present specific facts demonstrating a defense in this case.

The government responds that Mrs. Pickle failed to

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“A defendant seeking to vacate [entry of] default . . . must

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present specific facts that would constitute a defense.” TCI Group, 244

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F.3d at 700. “[C]onclusory statements that a dispute exist[s]” or “mere

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general denials without facts to support [the defense are] not enough to

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justify vacating a default or default judgment.” Franchise Holdings II,

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375 F.3d at 926 (quotation omitted); see also Gomes v. Williams, 420

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F.2d 1364, 1366 (10th Cir. 1970)(stating “[i]n an attempt to determine

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the meritorious nature of a defense, the trial court must have before it

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more than mere allegations that a defense exists”).

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A.

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Lack of Probable Cause in Violation of the Fourth Amendment
Mrs. Pickle supports the Fourth Amendment defense with the

following allegations:

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[A]s will be developed at the evidentiary
hearing on claimants anticipated motion to suppress
evidence, claimants will establish probable cause
did not exist within the four corners of the
affidavit for the search of the residence. Thus,
the 18 pounds of marijuana, packaging materials,
multiple weapons, and currency found in claimant’s
residence will be suppressed, and cannot be used in
these forfeiture proceedings.

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These conclusory allegations are insufficient to support this

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defense; therefore, this purported defense does not support granting the

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motion to set aside the entry of default.

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B.

Excessive Fine in Violation of the Eighth Amendment
Mrs. Pickle supports the Eighth Amendment defense with the

following allegations:
First, the value of the house at the time of
its seizure was several hundred thousand dollars.
Second, it is the family residence.
Third, not
having the family home to live in is a substantial
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hardship on Mr. Pickle should he reappear.
Should the Court grant the motion to suppress
evidence, there will be no evidence of culpability
on the part of Mr. Pickle in the activities alleged
in the complaint for forfeiture and forfeiture of
the entire residence would be excessive.

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The

portion

of

this

defense

which

relies

on

conclusory

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allegations about the legality of the search is insufficient to justify
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granting

the

motion.

Nor

has

Mrs.

Pickle’s

remaining

conclusory

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allegations shown that a meritorious Eighth Amendment defense exists
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since the property is subject to forfeiture under Title 21 U.S.C. §
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881(a)(7),

which

prescribes:

“The

following

shall

be

subject

to

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forfeiture to the United States and no property right shall exist in
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them . . . [a]ll real property . . . used . . . to commit, or facilitate
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the

commission

of,

a

violation

of

[21

U.S.C.

§

841

et

seq.].”

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Therefore, this defense does not support granting the motion to set
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aside the entry of default.
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2.

Prejudice

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Mrs. Pickle also makes a conclusory, one paragraph argument
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that the government would not suffer prejudice if the entry of default
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against Mr. Pickle was set aside.

The government counters that Mr.

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Pickle’s disappearance will result in prejudicial loss of evidence and
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increased difficulties in discovery.
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“To be prejudicial, the setting aside of a[n entry of] default
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must result in greater harm than simply delaying resolution of the
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case.”

TCI Group, 244 F.3d at 701.

“[T]he standard is whether the

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plaintiff’s ability to pursue his claim will be hindered.” Id. (quoting
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Falk, 739 F.2d at 463).

“[T]he delay must result in tangible harm such

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as loss of evidence, increased difficulties of discovery, or greater
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opportunity for fraud or collusion.”

Id. (citation omitted).

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The government is no longer able to pursue its claim against
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Mr. Pickle due to his disappearance.

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assertion that setting aside the entry of default would do nothing more

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than delay resolution of the case is insufficient to justify granting

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her motion. Therefore, the prejudice to the government supports denying

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the motion to set aside the entry of default.

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IV.

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Further, Mrs. Pickle’s conclusory

CONCLUSION

For the stated reasons, the motion to set aside the clerk’s

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entry of default against Mr. Pickle is denied.

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Dated:

September 21, 2011

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GARLAND E. BURRELL, JR.
United States District Judge

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