UNITED STATES OF AMERICA v. 2006 DODGE CHARGER R/T

Filing 40

ORDER denying 32 Motion to Strike Claim. This matter remains set for a telephonic status conference on December 4, 2012. The parties should be prepared to address an appropriate trial date at that time. Signed by Magistrate Judge William G. Hussmann, Jr on 10/16/2012.(NRN)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
EVANSVILLE DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
v.
ONE 2006 DODGE CHARGER R/T,
Defendant,
and
DeMARCO L. DAVIS,
Claimant.

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3:10-cv-178-WGH-RLY

ORDER ON MOTION TO STRIKE CLAIM
This matter is before the Honorable William G. Hussmann, Jr., United States
Magistrate Judge, on the parties’ consent to Magistrate Judge found in their Case
Management Plan (Docket No. 11) and the Order of Reference entered by the
Honorable Richard L. Young, Chief Judge, on May 27, 2011 (Docket No.12).
A Motion to Strike Claim for Failure to Comply with Supplemental Rule G(5)
and Pursuant to FED. R. CIV. P. 27(b) for Failure to Respond to Discovery Requests
was filed by Plaintiff, United States of America, on August 16, 2012. (Docket No.
32). Claimant filed his Response on September 14, 2012 (Docket No. 36), which
Response creates genuine issues of fact about whether the Claimant purchased the
vehicle with cash from a seller who had listed the car on craigslist.

Plaintiff, United States of America, seeks to dismiss this action in part upon
the underlying conduct and in part because the Claimant has failed to prosecute
the claim. Although the United States may ultimately prevail with respect to this
issue, the Magistrate Judge concludes that there are sufficient factual disputes to
warrant a trial in order to make the appropriate determination with respect to Mr.
Davis’s ownership of the property.
With respect to Mr. Davis’s failure to prosecute the claim, his ability to
prosecute the claim has been hindered by his incarceration. Moreover, dismissal
for failure to prosecute is an extreme sanction. Mr. Womack has now filed a
Response in opposition, and the Magistrate Judge concludes that when in doubt, a
decision on the merits is preferable to a default entry.
This matter remains set for a TELEPHONIC STATUS CONFERENCE on
DECEMBER 4, 2012, at 8:15 a.m., Evansville time (CST), before the Magistrate
Judge. Each counsel wishing to participate in this conference shall individually
place a call to [phone] at the time of the conference.1 The parties should be
prepared to address an appropriate trial date at that time.
The Motion to Strike Claim is DENIED.
SO ORDERED the 16th day of October, 2012.
__________________________
William G. Hussmann, Jr.
United States Magistrate Judge
Southern District of Indiana

This is the court’s bridge line. The first person to call the number will hear a tone and
then dead air. As each additional person calls the number, they will hear a tone and then
will be able to talk to all other persons who have previously connected to the conference
call.
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Electronic copies to:
Zachary A. Myers
UNITED STATES ATTORNEY'S OFFICE
[e-mail]
Winfield D. Ong
UNITED STATES ATTORNEY'S OFFICE
[e-mail]
Dax Ryan Womack
WOMACK LAW OFFICES
[e-mail]

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