United States of America v. $1,613,251.00 in United States Currency et al

Filing 69

MEMORANDUM AND ORDER. The governments motion to strike (Dk. 58) the claim of Tiffany Webb as a sanction for failing to comply with Magistrate Judges Order of May 16, 2013, (Dk. 54), that had granted the plaintiffs motion to compel and had ordered Ms . Webb to respond to the plaintiffs interrogatories on or before June 6, 2013, and as a sanction for failing to file an answer pursuant to Rule G(5)(b) is granted. See attached for more details. Signed by U.S. District Senior Judge Sam A. Crow on 8/12/2013. Mailed to pro se party: Tiffany Webb, 6140 NW Hickory Place, Parkville, MO 64152 by certified mail; Certified Tracking Number: 70112970000196796182and regular mail. (bmw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
UNITED STATES OF AMERICA,
Plaintiff,
vs.

Case No. 11-1341-SAC

$1,613,251.00, et al.,
Defendants.
MEMORANDUM AND ORDER
On June 10, 2013, the plaintiff United States of America moved
to strike the claim of Tiffany Webb as a sanction for failing to comply with
Magistrate Judge’s Order of May 16, 2013, (Dk. 54), that had granted the
plaintiff’s motion to compel and had ordered Ms. Webb to respond to the
plaintiff’s interrogatories on or before June 6, 2013, and as a sanction for
failing to file an answer pursuant to Rule G(5)(b). (Dk. 58). As of July 10,
2013, Ms. Webb did not file any response to the plaintiff’s motion to strike,
so the court issued an order to show cause that gave Ms. Webb 20 days or
until July 30, 2013, to file a response showing why the plaintiff’s pending
motion should not be granted as uncontested. (Dk. 66). This order was sent
by regular mail and certified mail, and the certified mail receipt was returned
as unclaimed. (Dk. 66, 67, and 68). As of the filing date of the instant order,
almost two weeks after the court’s deadline, Ms. Webb has not filed any
response to the show cause order.

PROCEDURAL BACKGROUND
In November of 2011, the United States brought this civil in rem
forfeiture action based on the court’s jurisdiction under 28 U.S.C. § 1355.
The government claimed the defendants are subject to forfeiture either
pursuant to 21 U.S.C. § 881(a)(6), as items that were or intended to be
exchanged for a controlled substance or used to facilitate a controlled
substance violation, or that are traceable proceeds from a controlled
substance exchange in violation of the Controlled Substance Act, or pursuant
to 18 U.S.C. § 924(d), as firearms and/or ammunition that were used,
carried or possessed during and in relation to a drug trafficking offense. (Dk.
1). While represented by counsel, Ms. Webb did file on March 14, 2012, a
verified claim under Rule G(5)(a)(i) of the Supplemental Rules for Admiralty
or Maritime Claims and Asset Forfeiture Actions (“Supplemental Rule”), as to
the defendants 1-15, 26 and 27. (Dk. 15). In that claim, Ms. Webb averred
that she is “legal owner of the identified defendant property, either directly
or through a spousal interest under Kansas law.” Id. at ¶ 3.
The action was stayed for approximately three months from April
to July of 2012. Neither before the stay was granted nor after it was lifted
did Ms. Webb file an answer as required by Supplemental Rule G(5)(b). The
government informed the magistrate judge by email that settlement
agreements had been reached “with the majority of claimants regarding

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most of the properties at issue.” (Dk. 37). A scheduling order was entered in
December of 2012 setting the relevant deadlines. (Dk. 42).
In January of 2013, Ms. Webb’s counsel moved to withdraw and
stated that communications had broken down with Ms. Webb, that Ms. Webb
had not fulfilled her contractual obligations, that Ms. Webb had reached a
tentative agreement with the government but then refused to execute the
settlement documents, and that Ms. Webb would be notified by certified mail
and personal service of her own responsibility now to comply with all orders
of the court and the time limitations set by the rules of procedure and the
scheduling order. (Dk. 43). Counsel also had filed an affidavit showing that
Ms. Webb was personally served at the identified address with the motion to
withdraw, the scheduling order, and counsel’s letter advising of obligations
and deadlines in the litigation. (Dk. 45). The magistrate judge granted
counsel’s motion to withdraw on January 18, 2013. (Dk. 46).
On May 1, 2013, the government filed a motion to compel
production of Ms. Webb’s answers to its first set of interrogatories
propounded on March 4, 2013. (Dk. 53). The magistrate judge granted the
motion to compel and gave Ms. Webb until June 6, 2013, to respond. (Dk.
54). The magistrate judge converted the final pretrial conference that the
scheduling order had set for June 5, 2013, to a status conference and
notified Ms. Webb by certified mail of this change. (Dk. 55). Ms. Webb
already had been notified of the June 5th conference hearing date through
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the scheduling order that her counsel had personally served upon her. (Dk.
45).
When Ms. Webb failed to appear at the status conference on
June 5, 2013, the magistrate judge issued on the same day an order for Ms.
Webb to explain by June 19, 2013, why she failed to appear and why she
failed to work with the government to submit a jointly prepared pretrial
order. (Dk. 57). The order also reminded Ms. Webb of the order requiring
her response to the government’s interrogatories by June 6, 2013. Id. This
order was served by regular mail and certified mail, and the certified mail
receipt was returned as unclaimed. (Dk. 64). On June 19, 2013, Ms. Webb
did file a response that simply stated: “Cause: I did not know of court date
and status conf. on June 5th or interrogatories for June 6, 2013. Please
accept my apologies.” (Dk. 60). Also on June 19, 2013, Ms. Webb filed a
motion to be released from legal fees, and the magistrate judge has denied
that motion. (Dks. 61, 65). The record does not show Ms. Webb to have had
any other active involvement or participation in this action after June 19,
2013. Specifically, there is nothing of record to show that Ms. Webb has ever
responded to the government’s first set of interrogatories or worked with the
government to submit a joint pretrial order.
ANALYSIS
The record is sufficient from which to infer that Ms. Webb has
received all of the filings pertinent to this show cause proceeding. On June
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10, 2013, the plaintiff government filed its pending motion to strike and
certified that the motion was personally served by a DEA special agent on
Ms. Webb at the same address used by the magistrate judge for the June
5th order and by the district court on its July 10th show cause order. As of
this date, Ms. Webb has not filed any response to the motion to strike. But in
filing timely responses referring to the magistrate judge’s June 5th order,
Ms. Webb necessarily demonstrates her receipt of that order through the
regular mail. The record is more than sufficient to find that Ms. Webb’s
address first disclosed by her counsel is accurate as confirmed through
subsequent instances of personal service and her responses to regular mail.
Thus, the court concludes that its show cause order was correctly sent to Ms.
Webb by certified and regular mail in a manner reasonably calculated for her
to receive and timely respond to it. As of the filing date of this order, she
has yet to file any response offering any cause as ordered by the court.
Thus, by the terms of show cause order and of D. Kan. Rule 7.4(b), the
court will consider and decide the government’s motion to strike as
uncontested. This Rule also provides: “Ordinarily, the court will grant the
motion without further notice.”
Supplemental Rule G(5) requires that: “A claimant must serve
and file an answer to the complaint or a motion under Rule 12 within 21
days after filing the claim.” As stated in the government’s motion, reiterated
in the court’s show cause order, and confirmed herein, Ms. Webb has never
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filed an answer in compliance with that rule. Supplemental Rule G(8)
authorizes the government to file a motion “to strike a claim or answer . . .
for failing to comply with Rule G(5).” Thus, the government’s motion to
strike is properly grounded in law and fact and shall be decided as an
uncontested motion.
“[C]ourts have held that it is not an abuse of discretion for the
district court to require strict compliance with Supplemental Rule C(6).”1
United States v. 2687 S. Deframe Circle, Lakewood Colo., 208 F.3d 228,
2000 WL 216938 at *3 (10th Cir. 2000) (internal quotation marks and
citations omitted). Supplemental Rule G(5) establishes the requirements for
the two “responsive pleadings,” (a) the claim and (b) the answer:
“The claim and the answer, though similar, serve distinct
purposes.” United States v. U.S. Currency in Sum of Two Hundred
Sixty One Thousand, Four Hundred and Eight Dollars ($261,480), No.
00–CV–3208 (FB), 2002 WL 827420, at *1 n. 3 (E.D.N.Y. May 2,
2002). A claim “insures that ‘[a]ny party who wishes to defend a
forfeiture action [will] be forced to swear his interest in the forfeited
property.’” United States v. U.S. Currency in Sum of Two Hundred
Sixty One Thousand, Four Hundred and Eight Dollars ($261,480), 2002
WL 827420, at *1 n. 3. An answer “serves its normal function—‘to
state in short and plain terms [the] defense to each claim assert ...
and to admit or deny the averments upon which the adverse party
relies.’” United States v. U.S. Currency in Sum of Two Hundred Sixty
One Thousand, Four Hundred and Eight Dollars ($261,480), 2002 WL
827420, at *1 n. 3.

“Case law pre-dating the 2006 adoption of Supplemental Rule G often
refers to the procedural requirements in Supplemental Rule C(6), ‘which
governed claim procedure prior to Supplemental G’s adoption.’” United
States v. 2007 Chrysler 300 Touring, 2011 WL 1119701 at *3 n.1 (D.N.M.
2011) (quoting United States v. One Men’s Rolex Pearl Master Watch, 357
Fed. Appx. 624, 626 n.2 (6th Cir. 2009)).

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United States v. 2007 Chrysler 300 Touring, 2011 WL 1119701 at *3
(D.N.M. 2011). Failure to serve and file an answer as required by
Supplemental Rule G(5)(b) is a valid ground for granting the government’s
uncontested motion to strike a claim. See United States v. Approximately
Twenty Mexican Gold Coins, 637 F. Supp. 2d 957, 958 (D. Kan. 2009).
Besides not asking for additional time to file her answer, Ms. Webb utterly
ignores the government’s motion to strike her claim for failure to file an
answer and likewise files no response to the court’s order to show cause.
Without a pending request for additional time and without any reasonable
basis, in fact or law, for finding a mitigating circumstance, the court will
enforce the requirements of Supplemental Rule G(5) and the remedy
authorized by Supplemental Rule G(8)(c) and thereby grant the
government’s uncontested motion to strike Ms. Webb’s claim.
Supplemental Rule G(6)(a) states, “[t]he government may serve
special interrogatories limited to the claimant's identity and relationship to
the defendant property without the court's leave at any time after the claim
is filed and before discovery is closed.” A claimant is given 21 days from
service of interrogatories to serve answers or objections. Supplemental Rule
G(6)(b). Supplemental Rule G(8)(c)(i)(A) authorizes the government to file
a motion to strike an answer for failure to comply with the special
interrogatories provision in Supplemental Rule G(6). The Advisory
Committee notes offer this insight:
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As with other pleadings, the court should strike a claim or answer only
if satisfied that an opportunity should not be afforded to cure the
defects under Rule 15. Not every failure to respond to subdivision (6)
interrogatories warrants an order striking the claim. But the special
role that subdivision (6) plays in the scheme for determining claim
standing may justify a somewhat more demanding approach than the
general approach to discovery sanctions under Rule 37.
Supplemental Rule G(8)(c)(i)(A) 2006 Adv. Comm. Notes. “It stands to
reason that if a party's noncompliance with Rule G(6) would be considered
sufficiently willful to warrant terminating sanctions under the more lenient
Rule 37 standard, then terminating sanctions may be used to address a
party's willful noncompliance with Rule G(6) as well.” United States v.
$333,806.93 in Proceeds from Foreclosure of Real Property Located at 26948
Pacific Coast Highway, Malibu, CA, 2010 WL 3733932, at *1 (C.D. Cal.
2010).
Rule 37(b)(2)(A)(iii) of the Federal Rules of Civil Procedure
permit a court to strike pleadings when a party fails to comply with an order
compelling discovery. Such a “sanctions order should be predicated on
willfulness, bad faith, or [some] fault rather than just a simple inability to
comply.” Lee v. Max Intern., LLC, 638 F.3d 1318, 1321 (10th Cir. 2011)
(internal quotation marks and citation omitted). The Tenth Circuit has
considered the use of this discovery sanction in civil forfeiture proceedings
noting that, “it should be used as a weapon of last, rather than first, resort”
and that the trial court should consider various criteria on the record prior to
settling on this sanction:
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(1)the degree of actual prejudice to the defendant; (2) the amount
of interference with the judicial process; (3) the culpability of the
litigant; (4) whether the court warned the party in advance that
dismissal of the action would be a likely sanction for
noncompliance; and (5) the efficacy of lesser sanctions.
United States v. $72,100.00 in U.S. Currency, 2009 WL 247837 at *3 (10th
Cir. 2009).
The court finds that Ms. Webb has willfully failed to obey the
magistrate judge’s order compelling discovery. To this date, she has not
served her answers to the interrogatories despite that order, despite the
government’s subsequent motion to strike personally served upon her, and
despite the latest district court’s order to show cause. Her refusal to answer
the interrogatories and to respond to the court’s orders has delayed these
proceedings and has caused the government to expend additional time,
effort and expense. The court’s orders have been largely ignored, and her
only response to any of these matters was that she did not know when the
record necessarily shows otherwise. This has delayed the resolution of this
matter and wasted judicial resources. While Ms. Webb’s pro se status may
entitle her to a liberal construction of her pleadings, it does not entitle her to
ignore the court’s rules and the court’s repeated orders. This court’s show
cause order warned Ms. Webb that her failure to respond would result in the
court granting the government’s motion to strike as uncontested without
further notice. (Dks. 66 and 67). Because Ms. Webb either has failed to
respond to the court’s orders or has given blanket denials of knowledge that
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are inexplicable and inconsistent with the record, the court doubts that
lesser sanctions will assure her compliance and cooperation in bringing this
case to a close. In short, the court finds that the balance of aggravating
factors surrounding Ms. Webb’s willful failure to ignore the magistrate
judge’s order and answer the interrogatories, to respond to the district
court’s show cause order and to offer any explanations for her refusal to
respond supported by the record outweigh the judicial system’s strong
desire to have cases resolved on the merits rather than on procedural
defaults. The court finds that granting the government’s motion to strike is
an appropriate sanction here.
IT IS THEREFORE ORDERED the government’s motion to strike
(Dk. 58) the claim of Tiffany Webb as a sanction for failing to comply with
Magistrate Judge’s Order of May 16, 2013, (Dk. 54), that had granted the
plaintiff’s motion to compel and had ordered Ms. Webb to respond to the
plaintiff’s interrogatories on or before June 6, 2013, and as a sanction for
failing to file an answer pursuant to Rule G(5)(b) is granted.
Dated this 12th day of August, 2013, Topeka, Kansas.

s/ Sam A. Crow
Sam A. Crow, U.S. District Senior Judge

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