United States of America v. $15,186.00 in U.S. Currency et al

Filing 9

ORDER Granting 8 Application for Default Judgment. Plaintiff's application for default judgment is granted. The interest of Chase Cole, Kevin Cole, and any other potential claimants in defendant $15,186.00 and $12,000.00 in U.S. currency, is hereby ordered condemned and forfeited to the United States. Signed by Judge Thomas J. Whelan on 4/3/2018. (rmc)(certified copy to USMS) (sjt).

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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UNITED STATES OF AMERICA,

Case No.: 17-CV-1886 W (BGS)

Plaintiff,

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v.

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ORDER GRANTING APPLICATION
FOR DEFAULT JUDGMENT
[DOC. 8]

$15,186.00 IN U.S. CURRENCY, et al.,
Defendants.

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On September 14, 2017, Plaintiff filed this action alleging forfeiture pursuant to 21

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U.S.C. § 881(a)(6). On January 12, 2018, Plaintiff obtained an entry of default. (See

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Clerk’s Entry of Default [Doc. 7].) On January 16, Plaintiff applied for default judgment.

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(See App. for Default Judgment [Doc. 8].) The Court decides the matter on the papers

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submitted and without oral argument pursuant to Civil Local Rule 7.1(d)(1). For the

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reasons outlined below, the Court GRANTS the application.

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17-CV-1886 W (BGS)

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I.

BACKGROUND

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This lawsuit arises from the seizure of two parcels sent via the U.S. Postal Service

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by a U.S. Postal Inspector under the authority of a federal search warrant. (Compl. [Doc.

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1].)

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On November 4, 2016, a U.S. Postal Service Inspector observed a trained and

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certified narcotics detection dog conduct exterior examinations of two parcels. (Compl.

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[Doc. 1] ¶ 5.) The dog alerted to both packages, and the handling San Diego Police

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Department officer explained the meaning of the alerts to the inspector. (Id.) The

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inspector successfully applied to a U.S. Magistrate for a search warrant and searched both

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packages. (Id. [Doc. 1] ¶¶ 6–8.)

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The packages in question contained $15,186.00 and $12,000 in U.S. currency,

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respectively. (Compl. [Doc. 1] ¶¶ 7–8.) A third package seized on March 13, 2017 in

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connection with the first two contained approximately 2,321.8 grams of “high[-]quality,

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expensive ‘bud’ marijuana, a Schedule I Controlled Substance.” (Id. [Doc. 1] ¶ 24A.)

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On September 18, 2017, a Notice of Judicial Forfeiture Proceedings and a copy of

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the Complaint were sent by Federal Express to Chase Cole and Kevin Cole, two potential

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claimants and their addresses of record. (Smith Decl. [Doc. 8-3] ¶ 4.) Additionally,

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notice of this action was posted on an official government website www.forfeiture.gov,

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for at least 30 consecutive days, beginning on September 17, 2017, as required by Rule

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G(4)(a)(iv)(c) of the Supplemental Rules for Admiralty or Maritime Claims and Asset

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Forfeiture Actions. (Id. [Doc. 8-3] ¶ 5.) No claim or answer has been filed. (Id.)
On January 12, 2018, Plaintiff obtained an entry of default. (Clerk’s Entry of

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Default [Doc. 7].) Plaintiff filed the instant application for default judgment on January

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16, 2018. (App. for Default Judgment [Doc. 8].)

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II.

LEGAL STANDARD

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Federal Rule of Civil Procedure 55(b)(2) governs applications for default

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judgment. Default judgment is available as long as the plaintiff establishes that: (1) the
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17-CV-1886 W (BGS)

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defendant has been served with the summons and complaint and default was entered for

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their failure to appear; (2) the defendant is neither a minor nor an incompetent person; (3)

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the defendant is not in military service or not otherwise subject to the Servicemembers

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Civil Relief Act; and (4) if the defendant has appeared in the action, that the defendant

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was provided with notice of the application for default judgment at least seven days prior

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to the hearing. See, e.g., 50 U.S.C. § 3931; Fed. R. Civ. P. 55; Twentieth Century Fox

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Film Corp. v. Streeter, 438 F. Supp. 2d 1065, 1070 (D. Ariz. 2006).

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Entry of default judgment is within the trial court’s discretion. See Taylor Made
Golf Co. v. Carsten Sports, Ltd., 175 F.R.D. 658, 660 (S.D. Cal. 1997) (Brewster, J.)

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(citing Lau Ah Yew v. Dulles, 236 F.2d 415 (9th Cir. 1956)). In making this

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determination, the court considers the following factors: (1) the possibility of prejudice to

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the plaintiff, (2) the merits of plaintiff's substantive claim, (3) the sufficiency of the

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complaint, (4) the sum of money at stake in the action, (5) the possibility of a dispute

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concerning the material facts, (6) whether the default was due to excusable neglect, and

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(7) the strong policy underlying the Federal Rules of Civil Procedure favoring decisions

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on the merits. Eitel v. McCool, 782 F.2d 1470, 1471–72 (9th Cir. 1986).

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Upon entry of default, the factual allegations in plaintiff's complaint, except those

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relating to damages, are deemed admitted. See, e.g., Televideo Sys., Inc. v. Heidenthal,

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826 F.2d 915, 917–18 (9th Cir. 1987) (quoting Geddes v. United Fin. Grp., 559 F.2d 557,

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560 (9th Cir. 1977)). Where the amount of damages claimed is a liquidated sum or

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capable of mathematical calculation, the court may enter a default judgment without a

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hearing. See Davis v. Fendler, 650 F.2d 1154, 1161 (9th Cir. 1981). When it is

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necessary for the plaintiff to prove unliquidated or punitive damages, the court may

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require plaintiff to file declarations or affidavits providing evidence for damages in lieu

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of a full evidentiary hearing. Transportes Aereos De Angola v. Jet Traders Invest. Corp.,

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624 F. Supp. 264, 266 (D. Del. 1985).

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17-CV-1886 W (BGS)

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III.

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DISCUSSION
This action is governed by Rule G(5) of the Supplemental Rules for Admiralty or

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Maritime and Asset Forfeiture Claims. The rule requires the filing of a claim with the

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U.S. Southern District Court Clerk within 35 days after service the notice of judicial

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forfeiture proceedings, or within such additional time as the court may allow. Under 18

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U.S.C. § 983(a)(4)(B), any person asserting an interest in the seized property must then

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file an answer to the forfeiture complaint “not later than 20 days after the date of the

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filing of the claim.”

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Here, on September 18, 2017, Plaintiff served a notice of forfeiture to all known

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potential claimants. To date, no claim or answer has been filed by any potential claimant.

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(Smith Decl. [Doc. 8-3] ¶ 5.) Based on the uncontested evidence and allegations in the

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Complaint, Plaintiff has satisfied the requirements of 18 U.S.C. § 983(c). Specifically,

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Plaintiff has established by a preponderance of the evidence that the currency was

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involved in a transaction or attempted transaction in violation of 21 U.S.C. § 881(a)(6).

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Accordingly, Plaintiff is entitled to default judgment. See Fed. R. Civ. P. 55(b)(2).

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IV.

CONCLUSION & ORDER

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Plaintiff’s application for default judgment is GRANTED.

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The interest of Chase Cole, Kevin Cole, and any other potential claimants in

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defendant $15,186.00 and $12,000.00 in U.S. currency, is hereby ORDERED

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condemned and forfeited to the United States.

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IT IS SO ORDERED.

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Dated: April 3, 2018

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