United States of America v. Approximately $1,116,331.67 seized from Bank of America Charitable Gift Fund et al

Filing 18

ORDER granting 15 the United States' Motion for Clerk's Default. The Clerk is directed to enter a Clerk's default against Bank of America and Morgan Stanley Global Impact Funding Trust. Signed by Magistrate Judge Carol Mirando on 10/12/2017. (HJ)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
v.

Case No: 2:17-cv-365-FtM-99CM

APPROXIMATELY $1,116,331.67
SEIZED FROM BANK OF
AMERICA CHARITABLE GIFT
FUND and APPROXIMATELY
$507,840.86 SEIZED FROM
MORGAN STANLEY GLOBAL
IMPACT FUNDING TRUST,
Defendants.
ORDER
This matter comes before the Court upon review of the United States’ Motion
for Clerk’s Default (Doc. 15) filed on August 31, 2017. The United States seeks entry
of Clerk’s default against Bank of America (“BOA”) and Morgan Stanley Global
Impact Funding Trust (“Morgan Stanley”). 1 Doc. 15 at 1.

On June 29, 2017, the

United States filed a Verified Complaint for Forfeiture in Rem (“Complaint”), seeking
to forfeit the following property:
1. Approximately $1,116,331.67 seized from Bank of America
Charitable Gift Fund account number 80-16-200-2766129 designated
by Andre and Paula Bernard; and
The United States claims Andre and Paula Bernard are the only other parties with
a known interest in this case. Doc. 15 at 4 n.1. Andre and Paula Bernard consented to the
forfeiture of the assets at issue and waived their rights to receive notice of this action. Doc.
1-6. The United States are not seeking entry of Clerk’s default against Andrea and Paula
Bernard.
1

2. Approximately $507,840.86 seized from Morgan Stanley Global
Impact Funding Trust account number 186764 held by the Bernard
Family Charitable Fund and controlled by Andre and Paula Bernard
(the Subject Accounts).
Doc. 1 at 1-2.

The United States argues despite receiving the proper notice of this

action, BOA and Morgan Stanley have not responded to the Complaint or appeared
in this action.

Doc. 15 at 1-2.

Pursuant to Rule 55(a) of the Federal Rules of Civil Procedure, “[w]hen a party
against whom a judgment for affirmative relief is sought has failed to plead or
otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must
enter the party’s default.”

Similarly, Middle District of Florida Local Rule 1.07(b)

provides:
When service of process has been effected but no appearance or response
is made within the time and manner provided by Rule 12, Fed. R. Civ.
P., the party effecting service shall promptly apply to the Clerk for entry
of default pursuant to Rule 55(a), Fed. R. Civ. P.
M.D. Fla. R. 1.07(b).
Rule G of the Supplemental Rules for Admiralty or Maritime Claims and Asset
Forfeiture Actions “governs a forfeiture action in rem arising from a federal statute.”
Fed. R. Civ. P. Supp. Rules G(1).

To “any person who reasonably appears to be a

potential claimant on the facts known to the government,” Rule G(4)(b) mandates the
government to serve the following notice:
(i) Direct Notice Required. The government must send notice of the
action and a copy of the complaint to any person who reasonably appears
to be a potential claimant on the facts known to the government before
the end of the time for filing a claim under Rule G(5)(a)(ii)(B).
(ii) Content of the Notice. The notice must state:

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(A) the date when the notice is sent;
(B) a deadline for filing a claim, at least 35 days after the notice
is sent;
(C) that an answer or a motion under Rule 12 must be filed no
later than 21 days after filing the claim; and
(D) the name of the government attorney to be served with the
claim and answer.
Fed. R. Civ. P. G(4)(b). Here, the United States prepared a notice in compliance with
Rule G(4)(b), which stated all the elements required under this rule. Doc. 15-1 at
12-14.
Rule G(4)(b) further requires the notice to be sent in a specific manner:
(iii) Sending Notice.
(A) The notice must be sent by means reasonably calculated to
reach the potential claimant.
(B) Notice may be sent to the potential claimant or to the attorney
representing the potential claimant with respect to the seizure of
the property or in a related investigation, administrative
forfeiture proceeding, or criminal case.
...
(iv) When Notice Is Sent. Notice by the following means is sent on the
date when it is placed in the mail, delivered to a commercial carrier, or
sent by electronic mail.
Fed. R. Civ. P. G(4)(b). On July 5, 2017, the United States sent the proper notice via
certified and first-class mail to BOA and Morgan Stanley by mailing the notice to
BOA’s vice president, president and registered agent 2 and Morgan Stanley’s counsel

2

Florida Department of State, Division of Corporations, www.sunbiz.org (last visited

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and representative in the Legal and Compliance Division.

Doc. 15-1 at 2-5.

Accordingly, the United States properly served the direct notice under Rule G(4)(b).

See Fed. R. Civ. P. G(4)(b)(iii), (iv).
Pursuant to the notice and Rule G(4)(b), BOA and Morgan Stanley had until
August 9, 2017 to file a claim in this case.

Doc. 15-1 at 12; see Fed. R. Civ. P.

G(4)(b)(ii). BOA and Morgan Stanley have failed to do so within the time period.
Thus, the entry of Clerk’s default pursuant to Federal Rule of Civil Procedure 55(a)
and Middle District of Florida Local Rule 1.07(b) is appropriate.
ACCORDINGLY, it is hereby
ORDERED:
1.

The United States’ Motion for Clerk’s Default (Doc. 15) is GRANTED.

2.

The Clerk is directed to enter a Clerk’s default against Bank of America

and Morgan Stanley Global Impact Funding Trust.
DONE and ORDERED in Fort Myers, Florida on this 12th day of October,
2017.

Copies:
Counsel of record
Unrepresented parties

Oct. 11, 2017).

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