United States of America v. Real Property Located at 6107 Hogg Road, Marsing Owyhee County, Idaho et al

Filing 151

MEMORANDUM DECISION AND ORDER- It is hereby ORDERED: 1) Ponzo must provide additional materials in support of his purported ownership interest in the defendant propertyJeep, motorcycle, and Subaruon or before 2/27/17; 2) Ponzo's Motion for Disc overy Including Depositions (Dkt. 126 ) is DENIED; 3) Ponzo's Second Motion for Continuance of Dispositive Motions (Dkt. 128 ) is DENIED; 4) The United States' Motion for Protective Order (Dkt. 133 ) is GRANTED; 5) The United States' Motion for Default Judgment against Nicholas Corson (Dkt. 144 ) is GRANTED; 6) Ponzo's Motion to Enforce Claimant Pace's Production of Stipulated Information for Ponzos Children (Dkt. 145 ) is DENIED; and 7) Ponzo's Motion to Extend Time to Reply to Respond (Dkt. 148 ) is GRANTED. Ponzo's combined reply and sur-response must be filed on or before 2/27/17. Signed by Judge Candy W. Dale. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jp)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

UNITED STATES OF AMERICA,
Case No. 1:11-cv-00300-CWD
Plaintiff,
v.
Real Property Located at 6107 Hogg
Road, Marsing, Owyhee County, Idaho,
being parcel number 009700010030,
including any and all fixtures,
improvements and appurtenances
thereon; U.S. Currency including the
sums of $16,084 and $102,000, more or
less; Gold and Silver and coins including
Two (2) Silver Dollar coins (1889 and
1922), Five (5) $10 Gaming Pieces,
Seven (7) $10 Gaming pieces/coins,
Fifteen (15) Engelhard 1-Troy-Ounce of
Silver, Eight (8) 10-Ounce Silver Bars,
One (1) 100-Ounce Gold/Silver Bar,
One (1) Five-Ounce Silver Bar, One (1)
Gold Colored Ring, One (1) Gold
Colored Ring with Skull Carving, One
(1) Austrian Philharmonics One-Ounce
Gold Coin, Twenty-One (21) American
Gold Eagle Liberty 1-Ounce Gold
Coins, Twenty-six (26) Canadian Gold
Maple Leaf One-Ounce Gold Coins, Ten
(10) $10 gaming pieces from Las Vegas
Casinos; One $20 Bill, and One (1) Gold
Colored Ring with a Clear Stone; Three
(3) $100 bills; Three (3) One-Ounce

MEMORANDUM DECISION AND
ORDER RE:
MOTION FOR DISCOVERY
INCLUDING DEPOSITIONS (DKT.
126);
MOTION FOR CONTINUANCE OF
DISPOSITIVE MOTIONS (DKT. 128);
MOTION TO QUASH DISCOVERY,
OR, ALTERNATIVELY, MOTION
FOR PROTECTIVE ORDER (DKT.
133);
MOTION FOR DEFAULT
JUDGMENT AS TO NICHOLAS
CORSON (DKT. 144);
MOTION TO ENFORCE CLAIMANT
PACE’S PRODUCTION OF
STIPULATED CONTACT
INFORMATION FOR PONZO’S
CHILDREN (DKT. 145); AND
MOTION TO EXTEND TIME TO
REPLY TO RESPONSE (DKT. 148)

MEMORANDUM DECISION AND ORDER - 1

Canadian Maple Leaf Gold Coins; a
2002 Harley Davidson Motorcycle,
Idaho License MSM731; a 1952
Willey’s Jeep, Idaho License 1A2D138;
and a 2002 Subaru Outback, VIN:
4S3BE896327203958,
Defendants.

INTRODUCTION
Pending before the Court are seven motions: (1) Claimant Ponzo’s Motion for
Discovery Including Depositions (Dkt. 126); (2) Ponzo’s Second Motion for Continuance
of Dispositive Motions (Dkt. 128); (3) the United States’ Motion to Dismiss (Dkt. 132);
(4) the United States’ Motion to Quash Discovery, or alternatively, Motion for Protective
Order (Dkt. 133); (5) the United States’ Motion for Default Judgment as to Nicholas
Corson (Dkt. 144); (6) Ponzo’s Motion to Enforce Claimant Pace’s Production of
Stipulated Contact Information for Ponzo’s Children (Dkt. 145).; and (7) Ponzo’s Motion
to Extend Time to Reply to Respond (Dkt. 148). 1 The Court will first address the status
of the motion to dismiss before it addresses the other motions separately below.
I.

Notice of the Court Re: United States’ Motion to Dismiss (Dkt. 132)
The United States filed a motion seeking to dismiss certain defendant property

items and seeking also to dismiss the claims of Ponzo for lack of standing. (Dkt. 132.) In
1

Three additional motions filed by Ponzo are also pending: (1) Motion to Suppress and Return Property
for Evidentiary Hearing under Franks v. Delaware (Dkt. 140); (2) Motion to Suppress Evidence Seized
Pursuant to Alleged Consent Search (Dkt. 141); and (3) Motion for Return of Property (Dkt. 143).
However, the Court will address these related motions at a later date once the Motion for Return of
Property and the United States’ Motion to Dismiss are ripe for review.

MEMORANDUM DECISION AND ORDER - 2

consideration of footnote five in the motion and upon review of the record to date, the
Court may consider matters outside the pleadings, and thus, may treat the motion as one
for summary judgment under Fed. R. Civ. P. 56. See Fed. R. Civ. P. 12(d). As such, the
Court will provide Ponzo the opportunity to present any materials that are pertinent to the
motion, i.e., any evidence that supports Ponzo’s ownership interest in the Jeep,
motorcycle, and the Subaru. If Ponzo chooses to file additional materials, he must do so
with his sur-response to the United States’ motion to dismiss on or before February 27,
2017. 2
II.

Discovery Motions (Dkt. 126, 133)

On October 24, 2016, Ponzo filed a motion seeking discovery and for leave of the
Court to depose ten witnesses. (Dkt. 126.) The same day, Ponzo filed his First Set of
Interrogatories, Request for Production of Documents and Request for Admissions
addressed to the United States and various other individuals who are not parties to this
civil forfeiture action. 3 (Dkt. 127).
The United States objects to Ponzo’s motion for discovery and his request to depose
ten witnesses and seeks an order quashing Ponzo’s First Set of Interrogatories, Request
for Production of Documents and Request for Admissions on the grounds Ponzo’s

2

The Court took into consideration Ponzo’s incarcerated status and claimed delay in receiving his mail
when imposing the deadline for the additional materials. As such, no additional extensions will be
granted.
3

Ponzo’s First Set of Interrogatories, Request for Production, and Request for Admissions are addressed
to: “the United States, Plaintiff and all of it’s [sic]Agents, Officers, Witnesses, Informants and
Prosecutors; Atty. Tyler S. Rounds; CW Cara Lyn Pace; Calvin Dale Pace (CI/Tipster); and all other
Persons of Interest to the Claimant.” (Dkt. 127.)

MEMORANDUM DECISION AND ORDER - 3

discovery requests are not relevant and not proportional to the needs of the litigants in
this civil forfeiture action. (Dkt. 133.) Alternatively, the United States seeks a protective
order under Rule 26(c)(A) of the Federal Rules of Civil Procedure forbidding the
discovery requested by Ponzo until the Court resolves the United States’ pending motion
to dismiss. For the reasons that follow, the Court will deny Ponzo’s discovery motion and
his request for leave to take depositions, and will grant the United States’ requested
protective order as to Ponzo’s First Set of Interrogatories, Request for Production of
Documents and Request for Admissions.
As amended effective December 1, 2015, Fed. R. Civ. P. 26(b)(1) provides that:
Parties may obtain discovery regarding any nonprivileged matter that is
relevant to any party's claim or defense and proportional to the needs of the
case, considering the importance of the issues at stake in the action, the
amount in controversy, the parties' relative access to relevant information,
the parties' resources, the importance of the discovery in resolving the issues,
and whether the burden or expense of the proposed discovery outweighs its
likely benefit. Information within this scope of discovery need not be
admissible in evidence to be discoverable.
“No longer is it good enough to hope that the information sought might lead to the
discovery of admissible evidence. In fact, the old language to that effect is gone.
Instead, a party seeking discovery of relevant, non-privileged information must show,
before anything else, that the discovery sought is proportional to the needs of the case.”
Dao v. Liberty Life Assurance Co. of Boston, 2016 WL 796095, at *3 (N.D. Cal. Feb. 23,
2016) (quoting Gilead Scis., Inc. v. Merck & Co, Inc., 2016 WL 146574, at *1 (N.D. Cal.
Jan. 13, 2016)).

MEMORANDUM DECISION AND ORDER - 4

As a threshold matter in a civil forfeiture action, a claimant must have both
statutory standing and Article III standing to assert a claim of interest in defendant
property. United States v. One 1985 Cadillac Seville, 866 F.2d 1142, 1148 (9th Cir.
1989). Statutory standing can be established by meeting the filing requirements in
Supplemental Rule G(5). To establish Article III standing, the claimant must
“demonstrate a colorable interest in the defendant property, for example, by showing
actual possession, control, title, or financial stake.” Real Prop. located at 5294 Bandy
Rd., Priest River, Bonner Cty., 2014 WL 5513748, at *5, quoting 5208 Los Franciscos
Way, 385 F.3d at 1191. Only if the claimant has standing, can he challenge the merits of
the civil forfeiture action: i.e., whether the defendant property items (to which he’s
asserted an ownership interest) are subject to forfeiture.
The Court has reviewed the discovery requested by Ponzo, and finds that it is not
proportional to the issues remaining in this civil forfeiture action. Ponzo’s discovery
seeks to impose discovery obligations on persons not parties to this case. The discovery
also seeks personal information about Ponzo’s children, custody issues, family members,
information connected to his already completed criminal case, including seeking to know
who informed on him, who notified law enforcement of his true identity as a fugitive,
who assisted with his capture in 2011, and who shared in a reward for his capture. And,
the discovery seeks information about the health care providers for his former spouse and
children, and copies of correspondence with his ex-spouse’s attorney.
The requested information has no bearing on Ponzo’s standing to assert a claim of
interest in the defendant property items at issue—the Jeep, motorcycle, and Subaru—or
MEMORANDUM DECISION AND ORDER - 5

whether the remaining property items are subject to forfeiture. Accordingly, the Court
will deny Ponzo’s request for discovery and request to depose ten witnesses. For the
same reasons, and pursuant to Fed. R. Civ. P. 26(c)(1)(A), the Court will grant the United
States’ motion for a protective order regarding Ponzo’s First Set of Interrogatories,
Request for Production of Documents and Request for Admissions.
III.

Ponzo’s Motion for Continuance of Dispositive Motions (Dkt. 128)

Ponzo seeks to extend the deadline to file dispositive motions in this litigation,
because Ponzo alleges he has not been able to conduct adequate discovery to support his
own dispositive motion. 4 Ponzo did not indicate in his motion what specific discovery is
needed to support a dispositive motion.
In consideration of the procedural posture of this matter, the Court does not find good
cause to extend the dispositive motion deadline. Currently pending, but not ripe for
review, is the United States’ motion to dismiss—seeking to dismiss Ponzo’s claims of
interest in the remaining defendant property items. At this stage, the only dispositive
motion Ponzo could file would involve the same issue that is before the Court in the
United States’ motion—standing. Moreover, if the United States prevails on its motion to
dismiss, Ponzo will not have standing to file a dispositive motion. As such, the Court will
at this time deny Ponzo’s request to extend the dispositive motion deadline.

4

Ponzo does not argue that additional discovery is necessary for him to respond to and address the
standing issues raised in the United States’ motion to dismiss. (Dkt. 132.)

MEMORANDUM DECISION AND ORDER - 6

IV.

United States’ Motion for Default Judgment (Dkt. 144)
Pending before the Court is the United States’ motion for an order of default

judgment as to Nicholas Corson pursuant to Fed. R. Civ. P. 55(b). (Dkt. 144.) The record
reflects that, on August 12, 2011, the United States served Nicholas Corson with a copy
of the Verified Complaint In Rem and Notice of Complaint of Forfeiture against Personal
Property. On December 6, 2016, the Clerk entered default as to Nicholas Corson.
(Dkt.139.) The United States filed its Motion for Entry of Default Judgment as to
Nicholas Corson on December 14, 2016. (Dkt. 144.) To date, Nicholas Corson has not
answered the Complaint, nor has he responded to the Motion for Entry of Default
Judgment. It further appears from the record that Nicholas Corson is neither a minor nor
an incompetent or incapacitated person, nor in the military service of the United States.
In consideration of the above, the Court will grant the United States’ Motion for
Default Judgment as to Nicholas Corson. (Dkt. 144.) Nicholas Corson is declared to be in
default and a default judgment is hereby entered of record in favor of the United States
against Nicholas Corson, forfeiting any and all right, title and interest of Nicholas Corson
in the defendant property herein, specifically, the Jeep and motorcycle.
V.

Motion to Enforce Claimant Pace’s Production of Stipulated Contact
Information for Ponzo’s Children (Dkt. 145)

Ponzo seeks an order compelling Claimant Pace, Ponzo’s ex-spouse, to produce
contact information for their children. According to Ponzo, as a condition of his
agreement to the Stipulation approved by this Court (where Ponzo agreed to forfeit any
and all right to the Hogg Road defendant real property to Pace and for the benefit of their
MEMORANDUM DECISION AND ORDER - 7

children, in trust), Pace promised to provide him with their children’s contact
information. (Dkt. 71,74.) Ponzo contends now that the contact information provided to
him was “fictitious” as his children have not responded to his emails.
The Court does not have jurisdiction to compel Pace to produce the contact
information for her children. Upon review of the Court approved Stipulation (Dkt. 71,
74), there are no terms in the Stipulation that require Pace to provide Ponzo with current
contact information of their children. As such, the Court will deny Ponzo’s motion.
VI.

Motion to Extend Time to Reply to Response (Dkt. 148)

Ponzo seeks a 30-day extension to reply to the United States’ response to his Motion
for Return of Property. (Dkt. 142, 147.) The Court construes Ponzo’s Motion for Return
of Property as part of his response to the United States’ motion to dismiss, and thus,
construes his request to file a reply, as a request to file a sur-response to the United
States’ reply to the motion to dismiss. The United States’ does not object to Ponzo’s
request. (Dkt. 149.)
Finding good cause appearing therefor, the Court will grant Ponzo’s motion. To
account for the delay caused by Ponzo’s incarcerated status and geographical location,
the Court will extend the deadline by 45 days. Ponzo must file his combined reply and
sur-response no later than February 27, 2017.

MEMORANDUM DECISION AND ORDER - 8

ORDER
NOW THEREFORE IT IS HEREBY ORDERED:
1) Ponzo must provide additional materials in support of his purported
ownership interest in the defendant property—Jeep, motorcycle, and
Subaru—on or before February 27, 2017;
2) Ponzo’s Motion for Discovery Including Depositions (Dkt.126) is
DENIED;
3) Ponzo’s Second Motion for Continuance of Dispositive Motions (Dkt. 128)
is DENIED;
4) The United States’ Motion for Protective Order (Dkt. 133) is GRANTED;
5) The United States’ Motion for Default Judgment against Nicholas Corson
(Dkt. 144) is GRANTED;
6) Ponzo’s Motion to Enforce Claimant Pace’s Production of Stipulated
Information for Ponzo’s Children (Dkt. 145) is DENIED; and
7) Ponzo’s Motion to Extend Time to Reply to Respond (Dkt. 148) is
GRANTED. Ponzo’s combined reply and sur-response must be filed on or
before February 27, 2017.
January 13, 2017

MEMORANDUM DECISION AND ORDER - 9