United States of America v. Eleven Million Seventy-One Thousand One Hundred and Eighty-Eight Dollars and Sixty-Four Cents ($11,071,188.64) In United States Currency

Filing 116

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that the motion of the United States for an order to show cause [Doc. # 96 ] is denied. IT IS FURTHER ORDERED that claimants, Valentino Ojeda Avila, Paulina Ojeda Avila, Humberto Ojeda Avila, and Laura A vila Barraza, and officers Griselda Avila Barraza and Jose Sergio Avila Amezquita, shall, no later than December 20, 2013, appear for depositions in St. Louis, Missouri. Claimants are warned that failure to appear for depositions will result in the d ismissal of their individual claims along with any additional sanctions the Court deems appropriate. IT IS FURTHER ORDERED that claimants motion to file a sur-reply [Doc. # 110 ] is denied. Signed by District Judge Carol E. Jackson on 11/21/13. (KJS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
vs.
ELEVEN MILLION SEVENTY-ONE
THOUSAND ONE HUNDRED AND
EIGHTY-EIGHT DOLLAR AND SIXTYFOUR CENTS ($11,071,188.64) IN
U.S. CURRENCY, MORE OR LESS,
SEIZED FROM LAOSTRICHES &
SONS, INC.,
Defendant-in-rem.

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No. 4:12-CV-1559 (CEJ)

MEMORANDUM AND ORDER
This matter is before the Court on the motion of the United States for an order
directing claimants to show cause why their verified claims and answers should not be
stricken. The claimants have filed a response in opposition, and the issues are fully
briefed. Also before the Court is claimants’ motion requesting leave to file a sur-reply
to the instant motion.
I. Background
On August 29, 2012, the government filed a verified complaint for forfeiture in
rem against $11,071,188.64 in U.S. Currency. On March 19, 2013, Laura Avila Barraza,
Humberto Ojeda Avila, Paulina Ojeda Avila, Valentino Ojeda Avila, and LaOstriches and
Sons, Inc. (LaOstriches) filed notices claiming interests in the defendant currency [Doc.
#31-35], followed by answers to the forfeiture complaint. [Doc. #36, 37].
On July 12, 2013, the government noticed the depositions of Laura Avila
Barraza, Humberto Ojeda Avila, Paulina Ojeda Avila, and Valentino Ojeda Avila, as well

as two corporate officers of defendant LaOstriches, Griselda Avila Barraza and Jose
Sergio Avila Amezquita. The depositions were scheduled for the week of August 12,
2013, but at claimants’ request, were rescheduled to begin on September 16, 2013.
On September 5, 2013, claimants filed a motion for protective order, requesting
that the Court cancel the depositions. On September 12, 2013, the Court denied
claimants’ motion. The following day, claimants filed motions for emergency protective
orders, requesting that the Court prevent the government from taking the depositions
of all individuals, except Laura Avila Barraza. In response, the government filed a
motion to compel appearances. On September 16, 2013, the Court denied claimants’
motions and granted the government’s motion to compel. However, none of the
claimants or officers appeared for the scheduled depositions.
In the instant motion, the government requests that the Court strike the
claimants’ claims and answers to the forfeiture complaint as a sanction for their failure
to comply with the Court’s orders and for failing to attend the scheduled depositions.
II.

Discussion

Rule 37(b)(2) of the Federal Rules of Civil Procedure provides that a court may
issue sanctions for failure to obey an order to provide discovery. Included within these
sanctions is the ability of a court “to strike Claimants’ pleadings and render default
judgment against them for failure to comply with their discovery obligations and
appear for their depositions.” U.S. v. $61,000.00 in U.S. Currency, 2013 WL 1867536,
*1 (C.D. Cal. May 3, 2013) (citing Fed.R.Civ.P. 37(b)(2)(A)(iii), (vi); 37(d)(1)(A)); see
also Hale v. Burton, 4:09-CV-1939 (E.D. Mo. May 3, 2011) (dismissed without
prejudice for plaintiff’s failure to appear for deposition). “The extensive sanctions
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available to courts under Rule 37 for failure to comply with discovery orders are
necessary to compensate the court and parties, facilitate discovery and deter abuse
of the discovery process.” U.S. v. One 1999 Forty Seven Foot Fountain Motor Vessel,
240 F.RD. 695, 698 (S.D. Fla. Feb. 21, 2007) (Courts have broad discretion to issue
sanctions). “By entering an appearance and contesting forfeiture in this action,
Claimants were aware that they would be required to provide discovery to the
government.” $61,000.00 in U.S. Currency, 2013 WL 1867536, at *2.
In the instant case, this Court issued two orders denying claimants’ requests to
cancel the depositions and directing them to appear for their scheduled depositions.
[Doc. #77, at 2; Doc. #88, at 2]. In complete disregard of these orders, all noticed
individuals failed to appear for depositions. At this stage of litigation, the Court is well
within its power to impose sanctions upon claimants for failure to comply with
discovery orders. See id. at 699 (“When a court enters an order, that order should be
followed—it should not be viewed as an advisory opinion that one chooses to follow or
not at his or her whim or convenience.”); Martin v. DaimlerChrysler Corp., 251 F.3d
691, 694 (8th Cir. 2001) (“When a litigant’s conduct abuses the judicial process,
dismissal of a lawsuit is a remedy within the inherent power of the court.”).
However, despite its broad discretion to issue sanctions upon noncompliant
parties, the Court is mindful that dismissal is an extreme sanction that should be used
prudently. See also Hale, 4:09-CV-1939. After thoughtful consideration, the Court will
permit the claimants one final opportunity to comply with the discovery orders and
appear for depositions. The Court will decline to consider claimants’ motion to file a

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sur-reply. The Court will not accept any further excuses or explanations for failure to
attend depositions.
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Accordingly,
IT IS HEREBY ORDERED that the motion of the United States for an order to
show cause [Doc. #96] is denied.
IT IS FURTHER ORDERED that claimants, Valentino Ojeda Avila, Paulina Ojeda
Avila, Humberto Ojeda Avila, and Laura Avila Barraza, and officers Griselda Avila
Barraza and Jose Sergio Avila Amezquita, shall, no later than December 20, 2013,
appear for depositions in St. Louis, Missouri. Claimants are warned that failure to
appear for depositions will result in the dismissal of their individual claims
along with any additional sanctions the Court deems appropriate.
IT IS FURTHER ORDERED that claimants motion to file a sur-reply [Doc.
#110] is denied.

____________________________
CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Dated this 21st day of November, 2013.

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