United States of America v. $25,000 United States Currency et al
Filing
24
ORDER granting Government's Motions 13 14 to Strike Pleadings and Dismiss with Prejudice Reyes Rodriguez's Claim to the Defendant Property with Prejudice. Rodriguez's Answer 6 is stricken and his claim to the Defendant Property is dismissed with prejudice. Signed by District Judge Halil S. Ozerden on 12/18/2012 (HM).
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
UNITED STATES OF AMERICA
V.
PLAINTIFF
Civil No. 1:11-cv-348-HSO-RHW
$25,000.00, UNITED STATES CURRENCY, and
2004 Acura MDX
DEFENDANT PROPERTY
ORDER GRANTING GOVERNMENT’S MOTIONS [13][14] TO STRIKE
PLEADINGS AND DISMISS WITH PREJUDICE REYES RODRIGUEZ’S
UNSUPPORTED CLAIM TO THE DEFENDANT PROPERTY
BEFORE THE COURT are two Motions [13][14], filed by the United States of
America (“Government”) to Strike Pleadings and Dismiss, pursuant to Rule
G(8)(c)(i)(A) of the Supplemental Rules for Admiralty or Maritime Claims and Asset
Forfeiture Actions (“Supplemental Rules”). The Government’s Motions assert that
Interested Party, Reyes Rodriguez, Jr.’s, Answer should be stricken and his
potential claim dismissed, because he has no standing to contest the forfeiture of
the Defendant Property. Mr. Rodriguez has not responded to the Government’s
Motions. Having reviewed the Motions, the record and pleadings on file, and the
relevant legal authorities, the Court concludes that Mr. Rodriguez has no standing
to contest the forfeiture. The Government’s Motions [13][14] should be granted.
I. FACTS AND PROCEDURAL HISTORY
On September 20, 2011, the Government filed a Verified Complaint for In
Rem Forfeiture [1] pursuant to 21 U.S.C. § 881 and 18 U.S.C. § 981(a)(1)(A),
seeking seizure and forfeiture of $25,000.00, in United States currency, and one
2004 Acura MDX VIN 2HNYD18924H546567 (“Defendant Property”). According to
the Complaint,
[t]he Defendant Property consists of $25,000.00, in United States
currency and One 2004 Acura MDX VIN 2HNYD18924H546567 seized
from Wilton Manuel Hernandez and Victor Manuel Plasencia-Ramirez on
or about March 17, 2011, in a traffic stop on U.S. Interstate 59
southbound at mile marker 27, Pearl River County, Mississippi. The
Defendant Property is presently in the custody of the United States
Marshal’s Service.
...
The Defendant Property is subject to forfeiture pursuant to 21, United
States Code, Sections [sic] 881 because it constitutes 1) money, negotiable
instruments, securities or other things of value furnished or intended to
be furnished by any person in exchange for a controlled substance or
listed chemical in violation of the Controlled Substances Act; 2) proceeds
traceable to such an exchange; and 3) money, negotiable instruments, and
securities, used or intended to be used to facilitate a violation of the
Controlled Substances Act; and pursuant to Title 18, United States Code,
Section 981(a)(1)(A) because it was involved in a violation of Title 18,
United States Code, Sections 1956, 1957 and 1060; and pursuant to Title
31, United States Code, Section 5332(c) because it was involved in a
violation of Title 31, United States Code, Section 5332(a).
Compl. [1] at p. 2.
Also on September 1, 2011, the Government filed a Notice of Action and Arrest of
Property [4], directed to Mr. Rodriguez, Mr. Hernandez, and Mr. PlascenciaRamirez. On October 31, 2011, Mr. Rodriguez filed an Answer and Affirmative
Defenses [6], claiming an interest in the Defendant Property and contending that he
is an innocent owner of the Property, who did not know or consent to its illegal use.
Answer [6] at p. 1.
On December 7, 2011, the Court entered a Case Management Order [9]. On
December 28, 2011, the Government served Mr. Rodriguez with its First Set of
Special Interrogatories and First Set of Request for Production of Documents.
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Notices of Service [10][11]. Mr. Rodriguez did not respond to the Special
Interrogatories within the requisite twenty one (21) day period. FED. R. CIV. P.
G(5)(b). He also did not respond to the Request for Production of Documents within
the requisite thirty (30) day period. FED. R. CIV. P. 34(b)(2)(A). On May 23, 2012,
the Government filed a Motion to Compel [12] Mr. Rodriguez’s responses to
discovery. The Magistrate Judge, by Text Order, ordered Mr. Rodriguez to respond
to the discovery by May 31, 2012, and to file a notice of such service with the Court.
Mr. Rodriguez did not comply with the Order, and the docket reflects that he has, to
date, not provided responses to discovery.
On June 1, 2012, the Government filed a Motion [13] to Strike Mr.
Rodriguez’s Answer and to Dismiss his Claim, on grounds that he has not filed a
Verified Claim, as required by Supplemental Rule G(5). On July 17, 2012, the
Government filed a second Motion [14] to Strike Mr. Rodriguez’s Answer and
Dismiss, on grounds that he has not responded to discovery, as required by
Supplemental Rule 6. The Government contends that Mr. Rodriguez has no
standing to contest the forfeiture, and that his Answer should be stricken and his
potential claim dismissed.
On September 6, 2012, a settlement conference was held by the Magistrate
Judge. Mr. Rodriguez did not appear at the conference. On September 6, 2012, the
Magistrate Judge ordered Mr. Rodriguez to show cause by September 17, 2012, why
his Answer should not be stricken and his claim dismissed. Order to Show Cause
[15] at p. 2. On September 18, 2012, Mr. Rodriguez’s counsel filed a Motion to
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Withdraw [16] and Response [17] to the Order to Show Cause, indicating that Mr.
Rodriguez has significant medical, financial, and domestic issues, and that he and
Mr. Rodriguez have substantial differences of opinion regarding how the suit should
proceed.1 On October 11, 2012, the Magistrate Judge granted the Motion to
Withdraw. Order Granting Motion to Withdraw as Attorney [21].
A settlement conference was scheduled for December 5, 2012. In a November
9, 2012, email, Mr. Rodriguez notified the Magistrate Judge of his intention to
proceed pro se. He filed a Motion to Continue [22] the settlement conference, on
grounds that he had undergone surgery, which prevented him from traveling to the
Court from this home in Freeport, New York. The Magistrate Judge found that Mr.
Rodriguez had submitted sufficient proof as to his medical condition and inability to
travel, and scheduled a telephonic settlement conference for December 12, 2012.
Mr. Rodriguez participated in the telephonic settlement conference, but the parties
did not settle. The Government’s Motions to Strike Pleadings and Dismiss are now
before the Court.
II. DISCUSSION
“A party seeking to challenge the government’s forfeiture of money or
property used in violation of federal law must first demonstrate an interest
sufficient to satisfy the court of its standing to contest the forfeiture.” United States
1
Counsel maintained that he “had been unsuccessful in communicating the
magnitude of complying with discovery deadlines and other issues . . . .” Resp. [17]
to Order to Show Cause.
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v. $321,470.00, United States Currency, 874 F.2d 298, 303 (5th Cir. 1989). “The
claimant must come forward with some evidence of his ownership interest in order
to establish standing to contest a forfeiture action.” United States v. One 18th
Century Columbia Monstrance, 797 F.2d 1370, 1374-75 (5th Cir. 1986). “[A] bare
assertion of ownership in the res, without more, is inadequate to prove an
ownership interest sufficient to establish standing.” United States v. $38,570,
United States Currency, 950 F.2d 1108, 1112 (5th Cir. 1992).
A claimant must establish two types of standing in order to contest a
governmental forfeiture action: (1) statutory standing, which is established by
complying with the Supplemental Rules; and (2) constitutional standing by
demonstrating at least a facially colorable interest in the property at issue. United
States v. One Parcel of Real Property, No. 3:97-CV-96WS, 46 F. Supp. 2d 572, 580-82
(S.D. Miss. March 4, 2008). Rule G of the Supplemental Rules requires a claimant
to file a verified claim. FED. R. CIV. P. G(5)(a). The claim must : (1) identify the
specific property claimed; (2) identify the claimant and state the claimant’s interest
in the property; (3) be signed by the claimant under penalty of perjury; and (4) be
properly served on the appropriate government attorney. FED. R. CIV. P. G(5)(a)(i).
“The courts have taken a severe stance against a claimant who has not properly and
timely perfected a verified claim in a forfeiture proceeding.” One Parcel of Real
Property, 46 F. Supp. at 582; see United States v. Real Property Located at 4301
Gateway, 123 F.3d 312, 313 (5th Cir. 1997)(upholding district court dismissal for
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failure to timely file verified claim); United States v. $38,570, United States
Currency, 950 F.2d 1108, 1115 (5th Cir. 1992); United States v. One Piper Navajo
PA-31 Aircraft, 748 F.2d 316, 319 (5th Cir. 1984)(dismissal for failure to file a
verified claim or to move to amend and provide verification). “‘The filing of a claim
is a prerequisite to the right to file an answer and defending on the merits.’” Cactus
Pipe & Supply Co., Inc. v. M/V Montmartre, 756 F.2d 1103, 1114 (5th Cir.
1985)(emphasis supplied)(citing 7A J. Moore, Moore’s Federal Practice ¶ C.16 at
700.13). The Supplemental Rules also require a claimant to answer the
Government’s special interrogatories. FED. R. CIV. P. G(6). “At any time before
trial, the government may move to strike a claim or answer: (A) for failing to comply
with Rule G(5) or (6), or (B) because the claimant lacks standing.” FED. R. CIV. P.
G(8)(b).
Mr. Rodriguez has not filed a verified claim. His deadline for filing a claim
expired over one year ago. He has not responded to the Government’s special
interrogatories or requests for production of documents. The deadline for
responding to this discovery expired nearly eleven months ago. The Magistrate
Judge provided Mr. Rodriguez an opportunity to respond to the Government’s
discovery out of time, but Mr. Rodriguez has not responded to the Government’s
discovery. He has offered no evidence that he has an ownership in the Defendant
Property. His bare assertion of ownership, contained in his Answer, is inadequate
to establish standing. Mr. Rodriguez has not established that he has statutory or
constitutional standing to contest the forfeiture. His Answer [6] should be stricken,
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and his potential claim dismissed with prejudice. The Government’s Motions
[13][14] should be granted.
III. CONCLUSION
Because Mr. Rodriguez has not established that he has statutory or
constitutional standing to contest the forfeiture, his Answer should be stricken, and
his potential claim dismissed with prejudice.
IT IS, THEREFORE, ORDERED AND ADJUDGED that, the
Government’s Motion [13] to Strike Pleadings and Dismiss, pursuant to Rule
G(8)(c)(i)(A) of the Supplemental Rules for Admiralty or Maritime Claims and Asset
Forfeiture Actions, is GRANTED.
IT IS, FURTHER, ORDERED AND ADJUDGED that, the Government’s
second Motion [14] to Strike Pleadings and Dismiss, pursuant to Rule G(8)(c)(i)(A)
of the Supplemental Rules for Admiralty or Maritime Claims and Asset Forfeiture
Actions, is GRANTED.
IT IS, FURTHER, ORDERED AND ADJUDGED that, the Answer [6],
filed by Interested Party, Reyes Rodriguez, is STRICKEN.
IT IS, FURTHER, ORDERED AND ADJUDGED that, Interested Party,
Reyes Rodriguez’s unsupported claim to the Defendant Property, is DISMISSED
WITH PREJUDICE.
SO ORDERED AND ADJUDGED, this the 18th day of December, 2012.
s/ Halil Suleyman Ozerden
HALIL SULEYMAN OZERDEN
UNITED STATES DISTRICT JUDGE
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