United States of America v. $59,500.00 supporting a cashier's check, #8261595

Filing 8

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that the Clerk's entry of default against defendant property Fifty-Nine Thousand, Five Hundred Dollars ($59,500.00) Supporting a Cashier's Check, #8261595 [Doc. # 7 ] is vacated. IT IS FURTHER ORDERED that plaintiff shall have until August 30, 2016, to file proof service on the defendant property. Signed by District Judge Carol E. Jackson on 8/16/16. (KXS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
vs.
FIFTY-NINE THOUSAND, FIVE
HUNDRED DOLLARS ($59,500.00)
SUPPORTING A CASHIER’S CHECK,
#8261595,
Defendant.

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Case No. 4:16-CV-430 (CEJ)

MEMORANDUM AND ORDER
This matter is before the Court on the plaintiff’s motion for default judgment
against the defendant property and all potential claimants thereto for failure to file a
claim, answer, or otherwise defend as set forth in Rule G of the Supplemental Rules
for Admiralty or Maritime Claims and Asset Forfeiture Actions.1
Entry of default in a civil action is appropriate “[w]hen a party against whom a
judgment for affirmative relief is sought has failed to plead or otherwise defend . . . .”
Fed. R. Civ. P. 55(a). A party has no duty to defend, however, unless it has been
properly served pursuant to Rule 4 of the Federal Rules of Civil Procedure.

See, e.g.,

Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 350 (1999) (“[O]ne
becomes a party officially, and is required to take action in that capacity, only upon

1 With respect to default judgments in proceedings that are in rem actions for forfeiture, both the
Federal Rules of Civil Procedure and the Supplemental Rules for Admiralty or Maritimes Claims and Asset
Forfeiture Actions apply, but the latter rules prevail if there is an inconsistency. Supp. R. A(2). Rule G
specifically governs forfeiture actions in rem arising from a federal statute. Supp. R. G(1). To the
extent that Rule G does not address an issue, Rules C and E also apply. Id.

service of a summons or other authority-asserting measure stating the time within
which the party served must appear and defend.”).
Upon the issuance and delivery of the warrant for arrest of property in an action
in rem, the United States Marshal or any United States officer or employee authorized
to enforce it, must execute the warrant in accordance with Supplemental Rule E(4).
Supp. R. E(4)(a); Supp. R. C(3)(b)(ii).

Service, or execution, of process on tangible

property is generally completed by taking it into possession.

Supp. R. E(4)(b).

Service on intangible property is generally accomplished by leaving a copy of the
complaint and process with the garnishee or other obligor.

Supp. R. E(4)(c).

A

process return and receipt form, or other proof of service indicting when the warrant
was served on the property, is filed with the court by the person serving process.
Except for service by a United States marshal, proof of service must be by the server’s
affidavit.

Fed. R. Civ. P. 4(l)(1).

In addition to service on the property, notice of the

action in rem is given directly to persons who reasonably appear to be potential
claimants and by publication in a newspaper or an official Internet government
forfeiture site.

Supp. R. G(4)(a)–(b).

On July 5, 2016, in accordance with Rule 4 and Supplemental Rule G, the Court
ordered plaintiff to file proof of service on the defendant property.

In response to the

Court’s order, plaintiff filed a Department of the Treasury process receipt and return,
indicating

that

the

warrant

was

executed

by

Department

Security/Homeland Security Investigations on May 16, 2016.

of

Homeland

However, the process

receipt and return contains no signature of an authorized treasury agency officer
acknowledging the receipt of process or certifying the method of service described.
The plaintiff’s attorney’s signature and affirmation are insufficient to establish that an
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authorized federal officer properly effected service of process in this matter.

See

Fed. R. Evid. 602 (“A witness may testify to a matter only if evidence is introduced
sufficient to support a finding that the witness has personal knowledge of the
matter.”).
Because plaintiff has not supplied the Court with sufficient information to
establish proof of service, there is no basis on which to grant default judgment.

See

United States v. 2,164 Watches, More or Less, Bearing a Registered Trademark of
Guess?, Inc., 366 F.3d 767, 771 (9th Cir. 2004) (“[A] ‘failure to serve the warrant on
the res leaves the court without jurisdiction over the ‘defendant’ (i.e., the object in
dispute).’” (quoting United States v. Approximately 2,538.85 Shares of Stock
Certificates of the Ponce Leones Baseball Club, Inc., 988 F.2d 1281, 1287 n.8 (1st Cir.
1993))).

Without proof of service, the Court finds good cause to set aside the Clerk

of the Court’s entry of default.

See Fed. R. Civ. P. 55(c).

However, because the

failure to prove service does not negate the fact of service, the Court will allow plaintiff
the opportunity to amend its proof of service. Fed. R. Civ. P. 4(l)(3).
After service is proven, plaintiff may again seek entry of default.

If no proof of

service is filed by the deadline set by the Court, plaintiff’s motion for default judgment
will be denied and this action will be dismissed without prejudice.
Accordingly,
IT IS HEREBY ORDERED that the Clerk’s entry of default against defendant
property Fifty-Nine Thousand, Five Hundred Dollars ($59,500.00) Supporting a
Cashier’s Check, #8261595 [Doc. #7] is vacated.

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IT IS FURTHER ORDERED that plaintiff shall have until August 30, 2016, to
file proof service on the defendant property.

CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE

Dated this 16th day of August, 2016.

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