United States of America v. $19000 US Currency

Filing 38

OPINION: The Court GRANTS Plaintiff's Amended Renewed Motion to Strike Claim with Rule 37 Certification (d/e 26 ). The Court also GRANTS Plaintiff leave to file a Motion for Default Judgment against Claimant. Entered by Judge Sue E. Myerscough on 10/2/2012. (ME, ilcd)

E-FILED

Tuesday, 02 October, 2012 05:09:09 PM
Clerk, U.S. District Court, ILCD

IN THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
v.
NINETEEN THOUSAND
AND 00/100 DOLLARS
($19,000.00) IN U.S. CURRENCY
Defendant.

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No. 10-cv-03009

OPINION
SUE E. MYERSCOUGH, U.S. District Judge:
This matter comes before the Court on an Amended Renewed
Motion to Strike Claim with Rule 37 Certification (d/e 26). Plaintiff,
the United States of America, asks the Court to strike the claim of
Claimant, Thedell Doss, for failure to comply with discovery requests.
Plaintiff also requests permission to file a Motion for Default Judgment
against Claimant. For the reasons that follow, the Court GRANTS
Plaintiff’s Amended Renewed Motion to Strike Claim with Rule 37
Certification. The Court also GRANTS Plaintiff leave to file a Motion

for Default Judgment against Claimant.
I. BACKGROUND
On January 14, 2010, the United States filed a Verified
Complaint for Forfeiture against Defendant, $19,000.00 United States
Currency. Plaintiff sought to enforce the provisions of
21 U.S.C. § 881(a)(6) for forfeiture of the currency as money furnished
or intended to be furnished in exchange for a controlled substance in
violation of Title II of the Controlled Substances Act, 21 U.S.C. § 801,
et seq., or as proceeds traceable to such an exchange.
Claimant filed his Claim of Interest in Seized Property on February
17, 2010, (d/e 7), and his Answer to the Complaint on March 9, 2010
(d/e 8). Claimant contends in both documents that he legitimately
obtained the $19,000.00 U.S. Currency.
On March 9, 2010, this Court ordered the Parties to submit a
proposed discovery plan in accordance with Rules 16(b) and 26(f) of the
Federal Rules of Civil Procedure and Local Rules 26.2(3) and 16.2(E).
On April 20, 2010, the Court entered a scheduling order calling for the

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parties to complete discovery by August 30, 2010.
Claimant’s former attorney, Mr. Rodney H. Holmes, contacted
Plaintiff and requested discovery on August 12, 2010. Plaintiff complied
with that request. At the same time, Plaintiff sought Claimant’s personal
banking information. Subsequently, the Parties agreed to file a Joint
Motion for Extension of Time to Complete Discovery and Extend
Deadlines (d/e 11). The Court extended the discovery deadline to
October 14, 2010.
On August 24, 2010, Plaintiff sent a letter requesting discovery
materials. Thereafter, on September 1, 2010, Plaintiff sent Claimant a
Request to Produce Documents.
Mr. Holmes emailed Plaintiff on September 12, 2010. He
acknowledged receiving the Request for Production. Mr. Holmes also
expressed doubt as to Claimant’s whereabouts. He believed Claimant
might be incarcerated and sought Plaintiff’s help to locate Claimant.
Plaintiff complied and forwarded Claimant’s contact information to Mr.
Holmes on September 21, 2010.

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On November 15, 2010, Plaintiff filed a Motion to Strike Claim
(d/e 13). Plaintiff asserted that Claimant had failed to produce the
requested discovery documents before the discovery deadline lapsed.
The Court held a telephone conference with the Parties on January
3, 2011. Counsel for Claimant, Plaintiff, and the Court discussed the
Motion to Strike Claim and Mr. Holmes’ inability to comply with the
discovery process due to his client’s failure to respond. The Court
cautioned Claimant’s attorney. The Court stated that Claimant must
continually provide current contact information to Mr. Holmes and the
Court. Further, the Court warned that failure to comply could result in
dismissal or striking of the claim with prejudice. Finally, the Court
required Mr. Holmes to notify the Court in writing, by January 6, 2011,
that Claimant had received the contents of the instant minute entry.
Mr. Holmes advised the Court on January 6, 2011, that he had
sent a letter by certified mail to Claimant. The letter alerted Claimant to
the discovery deadline. Mr. Holmes also noted to the Court that he
mailed a letter to the same address on October 7, 2010, but received no

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response.
Mr. Holmes filed a Supplemental Response to Plaintiff’s Motion to
Strike Claim on January 25, 2011 (d/e 18). The Response indicated that
Mr. Holmes contacted Claimant on January 18, 2011. Claimant
provided Mr. Holmes with limited information including a bank name
and account numbers. The Court ordered Claimant to comply with the
remaining discovery requests by February 16, 2011. The Court noted
that failure to comply would cause the Court to rule on Plaintiff’s
Motion to Strike Claim without further notice.
On February 7, 2011, Mr. Holmes filed another Motion for
Extension of Time to Complete Discovery (d/e 21). The Court held
hearing on this Motion as well as the Plaintiff’s Motion to Strike Claim.
The Court extended the discovery deadline to April 15, 2011 and denied
the Motion to Strike Claim. The Court stated that this would be its
final scheduling order.
On April 1, 2011, Mr. Holmes emailed Plaintiff and agreed that
the bank records failed to support the financial availability of the funds.

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Mr. Holmes wrote that he would make no further effort to comply with
additional discovery requests. He also alerted Plaintiff to a letter he sent
Claimant that was returned as undeliverable. Mr. Holmes stated that he
would relocate Claimant and send another letter. After that, Mr.
Holmes informed the Court that he planned to file a motion to
withdraw.
Mr. Holmes filed his Motion to Withdraw as Counsel for Claimant
on April 15, 2011 (d/e 22). At that time, the Court warned that no
further extensions would be allowed. The Court also scheduled a
telephone conference on May 31, 2011, to discuss the case’s status with
Claimant.
The Court held the telephone conference on May 31, 2011.
Claimant participated via telephone from his place of incarceration. The
Court discussed general matters about the case with Claimant and
Plaintiff.
On September 7, 2011, Plaintiff filed its Second Motion to Strike
Claim. The Court issued a Text Order that denied the Motion because

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Plaintiff failed to file “a certification that the movant has in good faith
conferred or attempted to confer” with Claimant to resolve the issues
prior to court intervention. See Fed.R.Civ.P. 37(d)(1)(B).
Plaintiff then Filed an Amended Motion to Strike Claim with Rule
37 Certification on December 13, 2011, with responses due on
December 30, 2011 (d/e 26). Claimant responded late on January 11,
2011, in the form of (1) a Motion to Dismiss the Government
Complaint (d/e 28); and (2) a filing the Court construed as a Response
to Amended Motion to Strike Claim (d/e 29).
The Court issued a Text Order on May 24, 2012, with regard to
Plaintiff’s Amended Motion to Strike. In the text order, the Court
provided Claimant an additional opportunity to comply with the
remaining discovery requests by 4:00 p.m. on June 29, 2012. The Order
also stated that no further extensions would be allowed. The Court
warned Claimant that failure to comply again would result in a ruling on
Plaintiff’s Amended Motion to Strike Claim without further notice.

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Finally, on June 28, 2012, Claimant filed a Motion to Comply with
Plaintiff’s Remaining Discovery Request (d/e 35). The Motion outlined
Claimant’s reasons for failing to follow this Court’s Orders. On July 10,
2012, the Court directed Plaintiff to respond to Claimant’s Motion with
a progress report. Plaintiff filed its Response on July 17, 2012 (d/e 37).
The Response stated that Claimant had made no effort to remedy the
discovery issues. Further, Plaintiff stated that Claimant’s failure to
comply with discovery prejudices Plaintiff’s ability to litigate the case.
The Court notes that Claimant remained incarcerated throughout
the timeline discussed: first, in Forrest City, Arkansas; then in St.
Genevieve, Missouri.
This Court has jurisdiction in this matter pursuant to 28
U.S.C. §§ 1345 and 1355.
II. ANALYSIS
Federal Rule of Civil Procedure 37 “authorizes the imposition of
sanctions for a litigant’s failure to cooperate in the discovery process.
Section (b) of that Rule provides that where a party fails to obey a court

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order directing it to provide or permit discovery, the district court may
inter alia, enter an order ‘dismissing the action or proceeding or any part
thereof, or rendering a judgment by default against the disobedient
party.’” Hindmon v. National-Ben Franklin Life Ins., Corp., 677 F.2d
617, 620 (7th Cir. 1982) (citing Fed.R.Civ.P. 37(b)). “It is well settled
under the standards set forth in National Hockey League v.
Metropolitan Hockey Club, Inc., 427 U.S. 639, 640 (1976) (per curiam)
and Societe Internatioanle v. Rogers, 357 U.S. 197, 212 (1958), that the
entry of dismissal or default judgment under Rule 37 requires a showing
of ‘willfulness, bad faith, or fault’ on the part of a non-complying party.”
Hindmon, 677 F.2d at 620.
District courts should make an explicit finding whether willfulness,
bad faith, or fault supports a dismissal with prejudice. Robinson v.
Champaign Unit 4 School Dist., 412 Fed. Appx. 873, 877 (7th Cir.
2011) (citing In re Thomas Consol. Indus., Inc., 456 F.3d 719, 724 (7th
Cir. 2006); Aura Lamp & Lighting, Inc. v. Int’l Trading Corp., 325 F.3d
903, 909 (7th Cir. 2003)). See also Watkins v. Nielsen, 405 Fed. Appx.

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42, 44 (7th Cir. 2010) (“We have not resolved definitively whether a
finding of willfulness must be premised on clear and convincing evidence
or simply a preponderance.”). “Moreover, when sanctioning a party for
discovery violations, a district court should consider the prejudice or
surprise to the party against whom the evidence is offered, the likelihood
of disruption to the trial, and lesser sanctions that could cure any
asserted prejudice.” Id. (citing Procter & Gamble Co. v. Haugen, 427
F.3d 727, 738 (10th Cir. 2005); David v. Caterpillar, Inc., 324 F.3d 851,
857 (7th Cir. 2003); Maynard v. Nygren, 332 F.3d 462, 467-68 (7th
Cir. 2003)). Finally, incarceration alone does not release a claimant
from complying with discovery requests. Kenneth v. Nationwide Mutual
Fire Ins. Co., No. 03-CV-521F, 2007 WL 3533887, at *12 (W.D.N.Y.
Nov. 13, 2007). See also Watkins, 405 Fed. Appx. at 45 (affirming
decision where district court found that even mental illness does not
explain a litigant’s failure to comply with discovery).
Here, Claimant’s actions clearly and convincingly demonstrate
wilful failure to comply with this Court’s discovery directives. The Court

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issued Claimant his first warning on January 3, 2011. There, the Court
stated that sanctions for failure to comply could include dismissal or
striking of the claim. Claimant half-heartedly heeded the warning on
January 18, 2011, when he supplied Mr. Holmes a bank name and
account numbers.
The Court’s second warning came in a Text Order on January 25,
2011. There, the Court stated that Claimant must comply with
discovery by February 16, 2011, or face a ruling on Plaintiff’s first
Motion to Strike Claim. Plaintiff filed its first Motion to Strike Claim
on November 15, 2010, after Claimant failed to comply with discovery
requests made in August 2010.
On February 10, 2011, the Court held a hearing. Afterward, it
provided Claimant additional time to comply with discovery and denied
Plaintiff’s first Motion to Strike Claim. The Court set the discovery
deadline for April 15, 2011, and stated that it would not allow further
extensions.
On April 29, 2011, Mr. Holmes filed a Motion to Withdraw as

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Claimant’s counsel. The Court allowed Mr. Holmes’ Motion and issued
an Order that required Claimant’s presence at a status hearing scheduled
for May 31, 2011. Claimant received his third warning from the Court
cautioning that failure to appear would result in the entry of an adverse
judgment.
Plaintiff filed its Second Motion to Strike Claim on September 7,
2010, after Claimant continued to evade Plaintiff’s discovery requests.
The Court denied this Motion because Plaintiff failed to provide Rule 37
documentation certifying that it “conferred or attempted to confer” with
the opponent to resolve the discovery dispute before court intervention.
On December 13, Plaintiff filed the Amended Motion to Strike
Claim with the proper Rule 37 Certification currently at issue. The
Court set the response deadline for December 30, 2011. Claimant,
however, did not file his Response until January 11, 2012.
The Court addressed the Amended Motion to Strike Claim on May
24, 2012. Again, the Court conferred a benefit on the Claimant when it
considered his Response despite the late filing. Additionally, the Court

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issued a fourth warning in an Order that extended Claimant one more
opportunity to comply. The Order called for Claimant to meet his
responsibilities by 4:00 pm on June 29, 2012, or face consequences.
Plaintiff filed a report over one month later on July 17, 2012, stating
that Claimant did not satisfy the requirements in the Court’s Order.
Plaintiff brought this claim in January 2010 and sought Claimant’s
bank information in August 2010. Nearly two years after that August
request, Claimant still fails to respond to Plaintiff’s discovery requests.
The Court afforded Claimant numerous opportunities to comply,
factored in his incarceration when it granted discovery deadline
extensions, and repeatedly cautioned Claimant about potential
consequences if he continued to shirk his responsibilities. Claimant’s
actions demonstrate wilful disregard of the Court’s orders and the
Plaintiff’s rights to litigate this case. Therefore, dismissal of Claimant’s
claim with prejudice is the only appropriate sanction under the
circumstances.
The Court recognizes the severity of this sanction. But the Court

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finds that its choice, under the circumstances, remains consistent with
numerous decisions from the Seventh Circuit Court of Appeals. See,
e.g., Watkins, 405 Fed. Appx. at 45 (dismissing case where plaintiff
failed to produce medical records and provided incomplete and evasive
responses to interrogatories so that after 19 months defendant still did
not have essential information to litigate the suit); Shaw-Reed v.
Children’s Outing Ass’n, 172 F.3d 53 (7th Cir. 1999) (dismissing case
where district court found plaintiff violated three discovery orders);
Govas v. Chalmers, 965 F.2d 298, 303 (7th Cir. 1992) (“[A] district
court has the discretion to dismiss a claim when a party demonstrates a
pattern of dilatory and evasive discovery tactics and when that party
wilfully persists in such tactics in violation of court warnings and
orders.”) (citing Hal Commodity Cycles Management Co. v. Kirsh, 825
F.2d 1136, 1138 (7th Cir. 1987)); Charter House Insurance Brokers,
Ltd. v. New Hampshire Insurance Co., 667 F.2d 600, 605-606 (7th Cir.
1981) (dismissal of complaint deemed an appropriate sanction for
plaintiff’s wilful failure to comply with proper discovery requests).

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Finally, the Court notes that a lesser sanction would not cure
prejudice to the Plaintiff in this case. See Watkins, 405 Fed. Appx. at
44. Lesser sanctions include contempt, fines, or barring introduction of
the undisclosed discovery information. Claimant, however, remains
incarcerated according to his latest location on file. Therefore, a
contempt order would provide little value. See 28 U.S.C. § 1826
(explaining penalties for civil contempt). Additionally, it is unlikely that
Claimant would pay a fine considering his persistent inability to comply
with Court orders to this point. And finally, barring the evidence would
have the same practical effect as dismissal. See Watkins, 405 Fed. Appx.
at 44.
CONCLUSION
For the reasons stated, the Court GRANTS Plaintiff’s Amended
Renewed Motion to Strike Claim with Rule 37 Certification (d/e 26).
The Court also GRANTS Plaintiff leave to file a Motion for Default
Judgment against Claimant.

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IT IS SO ORDERED.
ENTERED: October 2, 2012
FOR THE COURT

s/ Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATE DISTRICT JUDGE

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