United States of America v. Currency
Filing
29
ORDER AND REASONS granting in part and denying in part 9 Motion to Strike Claim and Answer to Complaint; denying 8 16 Motions for Summary Judgment. Signed by Judge Ivan L.R. Lemelle on 12/4/2014. (ijg)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
UNITED STATES OF AMERICA
CIVIL ACTION
VERSUS
NO. 13-5566
$100,641.06 U.S. CURRENCY, ET AL.
SECTION "B"(4)
ORDER AND REASONS
Nature of the Motions and Relief Sought
There are several motions before the Court. The first, is a
Motion to Strike Claim and Answer to Complaint by the United
States. (Rec. Doc. No. 9). An opposition to this motion was
filed by Calvin Thibodaux and Darnay Thibodaux. (Rec. Doc. No.
14). The second, is a Motion for Summary Judgment of Claimant by
Darnay Thibodaux. (Rec. Doc. No. 8). The United States filed a
response in opposition. (Rec. Doc. No. 20). Claimants filed a
reply (Rec. Doc. No. 28) and the Government filed a surreply
(Rec. Doc. No. 26). The third, is a Motion for Summary Judgment
of Claimant by Calvin Thibodaux, adopting and incorporating all
arguments from the foregoing motion for summary judgment. (Rec.
Doc. No. 16). The United States did not file an opposition.
Accordingly,
IT IS ORDERED that the Motion to Strike (Rec. Doc. No. 9)
is GRANTED in part and DENIED in part. IT IS ORDERED that the
Motions for Summary Judgment (Rec. Docs. No. 8, 16) are DENIED.
1
Claimants are hereby placed on notice of the Court’s intention
to enter summary judgment in favor of the United States sua
sponte unless they are able to show cause otherwise as directed
below.
Procedural History and Facts of the Case
This
in
rem
forfeiture
action
arises
out
of
an
investigation into elder exploitation. On March 26, 2013, law
enforcement became aware that a caretaker and her husband, via
power of attorney and other mechanisms, were defrauding their
neighbor,
a
hospitalized
elderly
man
named
Sidney
Dobronich
(“Mr. Dobronich” or “Dobronich”).
Law enforcement contacted Romano Investments and Insurance
(“Romano Investments”), with which Mr. Dobronich had a large
amount
of
money
invested
into
a
brokerage
account.
For
two
years, Romano Investments had been wiring a monthly electronic
deposit of $1,200 to Mr. Dobronich’s Capital One bank account.
On February 13, 2013, Romano Investments was contacted by Darnay
Thibodaux (“Darnay”), who identified herself as Mr. Dobronich’s
neighbor and caretaker, claimed to have power of attorney, and
requested $30,000 to settle his medical expenses.
On February 20, 2013, Darnay presented a power of attorney
and last will and testament to Romano Investments, showing that
she had full authority and that all of Mr. Dobronich’s assets
2
were being willed to her upon his death. Darnay requested an
additional
$30,000
transfer
to
the
Capital
One
account
for
medical bills.
On March 5, 2013, Darnay contacted Romano Investments and
requested a transfer of $179,000 to the Capital One account for
the purchase of a home. On March 11, 2013, Darnay called again,
requesting
an
additional
$95,000
for
closing
costs.
The
brokerage firm reached out to Mr. Dobronich’s family, prompting
an investigation.
On
March
13,
2013,
Darnay
deposited
$100,000
into
her
husband Calvin Thibodaux’s Resource Bank account. On March 19,
2013, Calvin wrote a check to draw from his account $17, 697.93
to finalize the purchase of a
Rockwood
travel trailer.
Cash
payments totaling more than $23,000 were also made to finalize
this purchase. When the check could not be deposited by the
retailer, Berryland Campers, a refund check in the amount of
$19,000 was issued payable to Calvin Thibodaux.
On March 18, 2013, law enforcement met with Mr. Dobronich,
who
denied
giving
permission
to
Darnay
to
borrow
money,
to
handle his finances, or to make any transactions on his behalf.
Mr. Dobronich did not recall making any large withdrawals from
the brokerage account other than the $30,000 to settle medical
3
bills. He did not recall granting power of attorney; however,
recalled that Darnay gave him “a bunch of paperwork.”
After adding herself to Mr. Dobronich’s bank account via
power of attorney, from February 15, 2013 to March 15, 2013,
Darnay
made
withdrawals
and
debits
from
the
bank
account,
amounting to more than $334,000. Law enforcement obtained Mr.
Dobronich’s Capital One bank account records and determined that
most of the money had been withdrawn in cash or used to purchase
large
items,
including
vehicles
(Nissan
Altima
sedan
and
Chevrolet Silverado truck), a tractor and real estate. None of
the money was used for the alleged medical expenses or were
purchases attributable to Mr. Dobronich.
On
March
27,
2013,
law
enforcement
seized
from
the
Thibodaux residence: the Nissan Altima registered to Darnay; the
Chevrolet truck registered to her husband Calvin; the tractor;
and, Mr. Dobronich’s wallet.
On June 5, 2013, Darnay and Calvin Thibodaux were charged
with Exploitation of the Infirmed in violation of La. Rev. Stat.
§ 14:93.4.1 The Thibodauxs were arraigned on felony charges and
entered pleas of not guilty on June 12, 2013.
1
nd
See State of Louisiana v. Thibodaux, 22 JDC, Docket No. 534840, Div. “C.” Complainants (family) also opened a
nd
civil suit regarding the underlying fraud and exploitation, Forrest Dobronich, et al. v. Darnay Thibodaux, et al. 22
JDC, Civ. No. 2013-11784.
4
On October 26, 2013, the United States filed the instant
Forfeiture
In
Rem
action
against:
$100,641.06
U.S.
Currency
seized from Resource Bank account, number: 1133164, in the name
of Calvin Thibodaux; $20,800 U.S. Currency seized from Berryland
Campers for the purchase of a 2013 Rockwood Trailer on the basis
of
the
refund
check;
2013
Nissan
Altima;
2001
Chevrolet
Silverado Pickup Truck; and, 2012 Kubota Tractor with Parker
Trailer.
The
Court
now
reviews
the
law,
contentions
and
alleged
facts concerning the Government’s Motion to Strike pursuant to
Supplemental Rule G and Claimants’ Motions for Summary Judgment
Pursuant to Fed. R. Civ. P. 56.
Law and Analysis
I.
Motion to Strike
The procedures for forfeiture in this case are governed by
the Civil Asset Forfeiture Reform Act of 2000, Title 18 U.S.C. §
983 (“CAFRA”). Under CAFRA, a person claiming an interest in
property named in a forfeiture complaint is directed to file a
verified claim and answer according to the procedures set forth
in the Supplemental Rules for Admiralty and Maritime Claims and
Asset Forfeiture Actions (“the Supplemental Rules”). 18 U.S.C.
§983(4)(A).
5
The Government’s Motion to Strike was filed pursuant to
Supplemental
Rule
G(8)(c)(i)(A),
which
provides
that
such
a
motion is proper at “any time before trial” and may be based on
the fail[ure] to comply with Rule G(5) or for lack of standing.
Rule
G(8)(c)(i).
failed
to
The
establish
Government
standing
alleges:
with
(1)
regard
Claimants
to
the
have
Defendant
Property; (2) Claimants have failed to adhere to Supplemental
Rule G(5)(a) in submitting a claim; and, (3) that Claimants have
failed to timely file an answer in accordance with Rule G(5)(b).
A. Article III Standing
Article III standing is at issue as the Government contends
that Claimants have failed to sufficiently establish that they
have standing to challenge the Government’s In Rem Complaint.
The
claimant
forfeiture
has
must
U.S.
$1,000
Number
burden
proceedings.
claimant
v.
the
230277,
have
in
No.
To
of
establishing
properly
both
Article
U.S.
Currency
III
contest
and
seized
2:04-CV-1084JCM(LRL),
standing
forfeiture,
statutory
from
2014
a
standing.
Inmate
WL
in
Account
3928607
(D.
Nev. Aug. 12, 2014). A claimant establishes Article III standing
by demonstrating the existence of an injury through a showing of
“either
an
ownership
or
lesser
possessory
interest
in
the
property.” United States v. $114, 031.00 in U.S. Currency, 284
F. App’x 754, 755-56 (11th Cir. 2008). In the absence of Article
6
III
standing,
there
is
no
‘case
or
controversy’
in
the
constitutional sense.
Here, the “Claim” (Rec. Doc. No. 5 at 1-3) is sufficiently
specific
regarding
the
nature
of
Claimants’
interest
in
the
Defendant Property at issue here. With regard to the currency
seized from the bank account, Claimants state that Claimants are
entitled to possess the funds “until the checks came in from the
bank.”2 However, Claimants have disclaimed a possessory interest
over the seized funds: “the day of seizure the checks came in
from
the
bank.”3
Therefore,
they
have
failed
to
state
an
unequivocal and continuing interest in the funds and have failed
to carry the burden with regard to the same. Cf. United States
v. $133,420.00 in United States Currency, 672 F.3d 629, 640 (9th
Cir. 2012).
Claimants
claim
ownership
over
the
“car,
truck,
and
tractor,” which “Mr. Sidney Dobronich notarized us to have these
items.” (Rec. Doc. No. 5 at 1). Claimants sufficiently establish
how they came into ownership of the car, truck and tractor, and
claim continued ownership. Further, the vehicles are registered
in their names. Claimants have established Article III standing
to
challenge
the
forfeiture
of
the
Nissan
Altima,
Chevrolet
Silverado pickup truck and the Kubota Tractor and trailer.
2
3
Rec. Doc. No. 5 at 1.
Rec. Doc. No. 5 at 1.
7
B. Statutory Standing
Statutory
standing
is
also
at
issue
here
because
the
Government’s Motion to Strike is based on Claimants’ failure to
adhere to Supplement Rule G(5). A claimant perfects statutory
standing through compliance with the procedures set forth in
Supplemental Rule G(5)(a) and (b). See United States v. One 1985
Cadillac Seville, 866 F.2d 1141, 1148 (9th Cir. 1989). A person
who asserts an interest in the defendant property may contest
the forfeiture by filing a claim in the court where the action
is pending. Rule G(5)(a)(i). The claim must: (a) identify the
specific property claimed; (b) identify the claimant and state
the claimant's interest in the property; and, (c) be signed by
the claimant under penalty of perjury. Rule G(5)(a)(i)(A)-(C). A
claimant must serve and file an answer to the complaint within
21 days after filing the claim. Rule G(5)(b).
Strict compliance with Supplemental Rule G(5) is required.
See e.g. U.S. v. 2006 Chevrolet Corvette, No. 12-2492, 2013 WL
3832690, at * 1 (E.D. La. July 23, 2013); U.S. v. $15, 701.97
U.S. Currency, No. 09-3437, 2010, WL 3418246, at *
(E.D. La.
Aug. 23, 2010); United States v. $21,044.000 U.S. Currency, No.
97-2994, 1988 WL 213762, at *2 (E.D. La. Apr. 30, 1998); United
States
v.
$31,000.000
U.S.
Currency,
No.
90-1829,
1990
WL
163610, at *1 (E.D. La. Oct. 22, 1990); United States v. $288,
914 in United States Currency, 722 F. Supp. 267 (E.D. La. 1989).
8
Failure
to
comply
with
the
foregoing
requirements
leaves
a
claimant without standing to challenge the forfeiture.
The Government’s Complaint was filed August 26, 2013.4 In
accordance
with
Fifth
G(4)(b)(ii)(A)-(D),
on
Amendment
August
30,
due
2013,
process
the
and
Government
Rule
sent
direct notice to Claimants, individually, via certified mail and
regular
mail.5
The
notice
contained
the
date
and
explicit
instructions on how Claimants were required to respond.6 Both
Claimants signed and confirmed receipt.7
Darnay
and
Calvin
Thibodaux
have
complied
with
Rule
G(5)(a). Claimants have submitted as a Claim the ‘Seized Asset
Claim Form’ from the administrative proceedings in this matter.8
The forms identify the specific property claimed and identify
both claimants and their interest in the property. The issue is
whether
the
‘Attestation
and
Oath’
and
Claimants
signatures
thereunder suffice under Rule G(5)(a)(i)(C).9 The Court finds
that the documents were signed by both Claimants under penalty
of
perjury,
consistent
with
the
simple
requirement,
and
4
Rec. Doc. No. 1.
Rec. Doc. No. 9-1 at 1-4.
6
Rec. Doc. No. 9-1 at 1-4.
7
Rec. Doc. No. 9-4 at 1, 2.
8
Rec. Doc. No. 5 at 2.
9
Attestation and Oath: I attest and declare under penalty of perjury that my claim to this property is not frivolous
and that the information provided in support of my claim is true and correct, to the best of my knowledge and
belief.
5
A FALSE STATEMENT OR CLAIM MAY SUBJECT A PERSON TO PROSECUTION UNDER 18 U.S.C. §§ 1001 AND/OR 1621
AND IS PUNISHABLE BY A FINE AND UP TO FIVE YEARS IMPRISONMENT.
9
constitutes
a
Claim
under
Rule
G(5)(a).
The
Rule
does
not
require that separate claims be submitted for administrative and
judicial proceedings.
However, Claimants have failed to comply with Rule G(5)(b)
and
this
is
standing.
fatal
to
their
ability
to
establish
statutory
Claimants timely submitted a claim on September 25,
201310; therefore, answers were due October 15, 2013. However,
Darnay Thibodaux did not file an Answer until August 18, 2014.11
After the filing of the Government’s Motion to Strike, Calvin
Thibodaux filed an Answer on August 19, 2014.12 Both answers were
filed nearly a year late, and as such are untimely under Rule
G(5)(b).
Claimants
judgment
or
entry
Government.13
contemplate
establish
claim
and
contend
of
However,
this
standing
answer.
that
the
default
had
been
Supplemental
prerequisite
to
answers
to
contest
Moreover,
timely,
entered
Rule
case
by
law
in
as
no
favor
the
does
G(5)
Claimants’
forfeiture
the
are
not
obligation
timely
to
filing
contravenes
a
this
argument. See e.g. U.S. v. Approximately $141, 932.00 in U.S.
Currency,
No.1:04-cv-6743LJOTAG,
2008
WL
190878,
at
*9
(E.D.
10
Rec. Doc. No. 5.
Rec. Doc. No. 7.
12
Rec. Doc. No. 10.
13
On August, 21, 2014, the Clerk of Courts granted the Government’s Motion for Entry of Default. (Rec. Doc. No.
12).
11
10
Cal. January 18, 2009)(granting motions to strike answer and
directing clerk of court to enter default judgment); U.S. v.
$5,277.00 U.S. Currency, No. 12-CV-6528, 2013 WL 2405733, at *2
(W.D. N.Y. June 5, 2013)(granting motion to strike but denying
without prejudice motion for default judgment).
Case law makes clear that the failure to file an answer
before
the
prescribed
deadline
precludes
the
claimant
from
attaining statutory standing. See e.g. U.S. v. 2006 Chevrolet
Corvette, 2013 WL 3832690, at * 2. Thus, in this case the Motion
to Strike must be granted, unless the court construes Claimants’
September 25, 2013 claim as both a claim and an answer. U.S. v.
Ninety
Six
Thousand
Three
Hundred
Seventy
Dollars
in
U.S.
Currency, No.3:14-cv-356-WHA, 2014 WL 4274352 at *2 (M.D. Ala.
Aug. 29, 2014).
A
court
has
discretion
in
appropriate
circumstances
to
depart from the strict construction required by Rule G. The
Court
may
excuse
a
claimant's
procedural
default
in
the
"appropriate circumstances" or where certain mitigating factors
are present. United States v. $15,701.97, 2010 WL 3418246, at *2
(E.D. La. 2010); U.S. v. $48,000 U.S. Currency, No. 06-10952,
2007
WL
Claimants
1467158,
fail
circumstances
at
to
that
*3
(E.D.
identify
warrant
La.
any
May
18,
special
relaxation
of
2007).
or
the
However,
extenuating
Supplemental
11
Rules. Moreover,
Rule
G(5)(a)
and
(b)
require
the
separate
filing of a claim and answer.
Additionally, Claimants’ “failure to present any evidence
demonstrating a good faith attempt to file an [answer] on time,
detrimental reliance on government misinformation, or expense of
considerable resources preparing this case for trial,” weighs
heavily in the Court’s decision to not exercise its discretion.
United States v. $2,857.00, 754 F.2d 208, at *4 (5th Cir. 1985).
Accordingly,
IT IS ORDERED that the Government’s Motion to Strike for
Lack of Standing (Rec. Doc. No. 9) is GRANTED in part and DENIED
in part, without prejudice to reurge.
IT IS ORDERED that Government’s Motion to Strike Claim of
Darnay and Calvin Thibodaux (Rec. Doc. No. 5) is DENIED.
IT
IS
FURTHER
ORDERED
that
the
Government’s
Motion
to
Strike Answers of Darnay and Calvin Thibodaux (Rec. Docs. No. 7,
10) is GRANTED. Claimants lack standing to challenge the United
States’ forfeiture of the Defendant Property in this action. The
Court
separately
addresses
Claimants’
motions
for
summary
judgment.
12
II.
Motions for Summary Judgment
A. Summary Judgment Standard
Summary
judgment
is
appropriate
only
if
“the
pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits show that there is no genuine issue
as to any material fact and the movant is entitled to judgment
as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986); TIG Ins. Co. v. Sedgwick James, 276 F.3d 754, 749 (5th
Cir. 2002). A genuine dispute of material fact exists when the
“evidence is such that a reasonable jury could return a verdict
for
the
nonmoving
party.’”
Royal
v.
CCC
&
R.
Tres
Arboles,
L.L.C., 736 F.3d 396, 400 (5th Cir. 2013).
Summary judgment is also proper if the party opposing the
motion fails to establish an essential element of his case. See
Celotex Corp., 477 U.S. at 322–23. In this regard, the nonmoving
party must do more than simply deny the allegations raised by
the moving party. See Donaghey v. Ocean Drilling & Exploration
Co., 974 F.2d 646, 649 (5th Cir. 1992). The mere argued existence
of
a
factual
dispute
does
not
defeat
an
otherwise
properly
supported motion. Contogouris v. Westpac Resources, 856 F.Supp.
2d 846, 850 (E.D. La. 2012)(citing Anderson v. Liberty Lobby,
Inc.,
477
U.S.
242,
248
(1986)).
The
“obligation
of
the
nonmoving party is particularly strong when the nonmoving party
13
bears the burden of proof.” Hughes, v. Bedsole, 48 F.3d 1376,
1381 (4th Cir. 1995).
B. Civil Forfeiture under 18 U.S.C. §§ 981 and 983
The United States claims that the Defendant Property are
traceable proceeds of wire fraud and bank fraud obtained in
violation of 18 U.S.C. §§ 1343 and 1344, respectively, and 1349
(attempt or conspiracy); therefore, the property is subject to
civil
forfeiture
under
18
U.S.C.
§§
981(a)(1)(C)
and
981(a)(1)(D).
The
United
States
alleges
that,
in
addition
to
being
involved in transactions illicit wire and bank transactions, the
in rem Defendant Properties were involved in transactions or
attempted transactions of money laundering in violation of 18
U.S.C.
§§
1956(a)(1)(B)
and
1956(h),
as
well
as
§
1957
(prohibiting unlawful conduct as defined under 18 U.S.C. § 1962,
Racketeer Influenced and Corrupt Organizations Act), subject to
forfeiture under 18 U.S.C. § 981(a)(1)(A).
Title 18 U.S.C. § 981(a)(1)(A), (a)(1)(C), and (a)(1)(D),
respectively, provide that: “[a]ny property, real or personal”
is subject to forfeiture to the United States if,
transaction
in
violation
of
Section
1956;
involved in a
constitutes
or
is
derived from proceeds traceable to a violation of Section 1344;
14
or represents or is traceable to the gross receipts obtained,
directly
or
“Proceeds”
indirectly,
is
defined
from
as
a
violation
“property
of
of
any
Section
kind
1343.
obtained,
directly or indirectly, as the result of the commission of the
offense giving rise to forfeiture and any property traceable
thereto...” 18 U.S.C. § 981(a)(1)(G)(2).
To be entitled to forfeiture under CAFRA, the Government
must establish by a preponderance of the evidence that “the
property
is
Government
subject
may
use
to
forfeiture....”
evidence
gathered
Id.
after
§
983(c)(1).
the
filing
The
of
a
complaint for forfeiture to establish that property is subject
to forfeiture. Id. § 983(c)(2). Further, if the Government’s
theory is that the property was involved in the commission of a
criminal offense, the Government must establish a “substantial
connection”
between
the
property
and
the
offense.
Id.
§
983(c)(3).
Whether the Defendant Property is Forfeitable
Fraud Element
According to Claimants: (1) Dobronich’s will reflects his
desire to ensure the financial security of the Thibodauxs in
return for Darnay continuing to perform care-giving services for
him; and (2) Dobronich granted access and authority over his
15
investment account as he was interested in the development and
management of rental property with the Thibodauxs.
Claimants contend that the United States cannot meet its
burden of proof that all property seized was transacted without
Mr. Dobronich’s full knowledge and authorization.14 Therefore,
they claim, the United States cannot prove any violation of
Title 18 §§ 1956, 1343 and 1344. Essentially, Claimants argue
that the Government cannot satisfy the fraud element of §§ 1344
(Bank Fraud) and 1343 (Wire Fraud), and based on the foregoing,
argue
that
therefore,
the
Government
cannot
satisfy
the
requirements under § 1956 (money laundering) or § 1957 (engaging
in
monetary
transactions
in
property
derived
from
specified
unlawful activity).
As Claimants acknowledge engaging in monetary transactions
that involved moving $334,000 from the Dobronich brokerage and
Capital
One
bank
accounts,
and
for
Chevrolet
Silverado
accounts
the
for
purchase
truck,
and
transfer
of
the
the
to
personal
Nissan
tractor,
as
Altima,
well
as
bank
the
the
attempted purchase of a trailer with these funds, it follows
that
a
substantial
connection
exists
between
the
Defendant
14
Claimants contend that Mr. Dobronich sought to secure their financial security in return for Darnay continuing to
perform care-giving services for him; that Mr. Dobronich decided to execute a will leaving his property to
Claimants; and, that he decided to execute a power of attorney to facilitate the acquisition and maintenance of
rental property to ultimately establish rental income for Claimants and Mr. Dobronich.
16
Property and the alleged offenses.15 Therefore, the analysis here
is a simple one-step analysis into the fraud element and whether
the Government can establish by a preponderance of the evidence
that Claimants obtained the property through fraud.
The fraud element is somewhat defined by 18 U.S.C. §1341,
which provides, in relevant part: “[w]hoever, having devised or
intending to devise any scheme or artifice to defraud, or for
obtaining money or property by means of
false or fraudulent
pretenses....”
The issue is whether Dobronich had “full knowledge” of the
transactions at issue and knowingly gave Claimants authorization
to engage in the same. The Government and Claimants contrast
sharply on this issue. Claimants support their position with a
sworn and notarized affidavit, signed by Dobronich, attesting as
follows:
1) He does not want to press charges against Calvin and/or
Darnay Thibodaux for acting on his behalf with a Power of
Attorney he executed in the presents [sic] of a Notary
Public and two witness;
2) Anything purchased was with his
authorized with his full knowledge;
consent
and
were
3) Items such as, Kubota Tractor, a 4-wheeler, 2001 Chevy
Pk, a 2013 Nissan Altima and property(s) [sic] were
purchased with my knowledge; the money came from my
account.16
15
16
Rec. Doc. No. 8-1 at 4-5.
Rec. Doc. No. 8-1 at 7.
17
The
Government
alleges
that
the
affidavit
was
presented
to
Dobronich on March 27, 2013, while he was in the hospital, and
in a fragile and vulnerable condition.17 The Government supports
this with the judicial determination, during state court civil
proceedings that Dobronich was “incompetent to testify in these
proceedings by way of deposition or trial testimony.”18 Further,
during his interview with law enforcement on March 18, 2013,
Dobronich denied giving permission to Claimants to borrow money,
handle his finances, or make any transactions on his behalf.19
Thus, there is serious question as to Dobronich’s capacity to
make the attestations proffered by Claimants.
The
evidence
shows
that,
on
February
20,
2013,
Darnay
Thibodaux obtained a cashier’s check in the amount of $26,000
payable to Calvin Thibodaux with “doctor bills” listed in the
memo field; and, that the check was endorsed and deposited on
the same day for the purchase of the Nissan Altima, a purchase
Claimants contend Dobronich authorized.20
Further, on February 13, 2013, and again on February 20,
2013,
Darnay
contacted
Romano
Investments
for
$30,000
wire
transfers from Dobronich’s investment account to his Capital One
Rec. Doc. No. 1 at 8.
Rec. Doc. No. 26-1 at 1. Forrest Dobronich, et al. v. Darnay Thibodaux and Calvin Thibodaux, Case No. 201311784.
19
Rec. Doc. No. 1 at 11.
20
Rec. Doc. No. 1 at 9.
17
18
18
bank account, advising that the funds were needed in order to
settle “medical expenses.”21 However, Claimants admitted to law
enforcement that no funds were put to medical care or expenses
because “the bills hadn’t come in yet.”22
The
Claimants
contend
that
the
basis
for
Dobronich’s
granting of power of attorney over his affairs and finances, as
well as the bequest of all of his assets to the Thibodaux’s, is
the relationship that developed during Darnay’s nursing care of
Dobronich
over
the
course
of
two
years.
However,
there
is
evidence to the contrary and that Darnay only began caring for
Dobronich several months before the transactions at issue.
Although, not the subject of the instant action, there is
evidence to show that a $45,000 cashier’s check (relating to
Dobronich’s
funds)
was
obtained
by
Claimants
and
used
to
purchase real property from a third party. However, the sales
documentation from this transaction lists the transaction as an
Act of Donation, rather than a sales transaction. Further, there
is
no
record
of
this
transaction
in
the
public
record.
The
Government is prepared to show that the parties involved in this
transaction made inconsistent statements as to the nature of the
transaction for real property.
21
22
Rec. Doc. No. 1 at 7.
Rec. Doc. No. 1 at 11.
19
Based on the foregoing, the Court finds that Claimants have
failed
to
knowledge
settle
and
the
complete
issues
relating
understanding
of
to
Dobronich’s
the
full
transactions
at
issue, specifically, how the funds from the brokerage account
were
being
spent.
The
purported
authorization
proffered
by
Claimants to support their position is in serious question. For
these
reasons,
summary
judgment
in
favor
of
Claimants
that,
based
on
the
is
inappropriate.
Further,
the
Court
finds
evidence
adduced by the Government, the Government can bear the burden of
proof in establishing that the Defendant Property was obtained
through ‘false or fraudulent pretenses,’ thus, subjecting the
property to forfeiture proceedings under 18 U.S.C. § 981.
Accordingly,
IT IS ORDERED that the Motions for Summary Judgment (Rec.
Docs. No. 8, 16) are DENIED. There is no evidence that the funds
from
Dobronich’s
Dobronich’s
legitimate
medical
brokerage
purpose
bills,
account
or
purportedly
were
were
used
authorized
used
toward
by
to
any
settle
other
Dobronich,
as
opposed to the Government’s well-documented use of the funds for
Claimants’ personal designs.
20
III.
Notice of the Court’s Intention to Enter Summary Judgment
Sua Sponte in Favor of the United States
Based
on
the
above,
the
Court
is
considering
entry
of
summary judgment sua sponte in favor of the United States. It is
well-settled that a district court may, in denying the moving
party’s motion for summary judgment, grant summary judgment sua
sponte
in
favor
of
the
non-movant.
Fed.
R.
Civ.
P.
56(c);
Washington v. Resolution Trust Corp., 68 F.3d 935, 939 (5th Cir.
1995); Boudreaux v. Rice Palace, No. 04-541, 2006 WL 3345198, at
*7 (W.D. La. Nov. 15, 2006). Federal Rule of Civil Procedure 56
requires the prompt disposition of cases in the absence of any
genuine issues of material fact for the court to consider.
As the Court is considering entering a sua sponte judgment,
Claimants as the moving parties are entitled to ten-days’ notice
of this intention so that Claimants have fair opportunity to
come forward with all of their evidence and make a response. St.
Paul Mercury Ins. Co. v. Williamson, 224 F.3d 425, 435 (5th Cir.
2000).
New Orleans, Louisiana, this 4th day of December, 2014.
____________________________
UNITED STATES DISTRICT JUDGE
21
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