United States of America v. $8,189.00 in United States Currency

Filing 33

MEMORANDUM AND ORDER -The Findings and Recommendation (Filing No. 31 ) entered on June 18, 2014, by United States Magistrate Judge F.A. Gossett are adopted in their entirety; Plaintiffs Motion to Strike Claim (Filing No. 29 ) is granted; The Clai m (Filing No. 12 ) and Answer (Filing No. 13 ), filed by Claimant John Salinas, are stricken; and A separate default judgment in accordance with this Memorandum and Order will be entered in favor of the Plaintiff as against Claimant John Salinas. Ordered by Chief Judge Laurie Smith Camp. (Copy mailed to pro se party)(MKR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
UNITED STATES OF AMERICA,
Plaintiff,

4:13CV3038

vs.
MEMORANDUM AND ORDER
$8,189.00 IN UNITED STATES
CURRENCY,
Defendant.

Before the Court are the Plaintiff’s Motion to Strike Claim (Filing No. 29), and the
Findings and Recommendation (Filing No. 31) by United States Magistrate Judge F.A.
Gossett, recommending that the Motion be granted. For the reasons stated below, the
Findings and Recommendation will be adopted and the Motion to Strike will be granted.
BACKGROUND
The United States filed its Complaint (Filing No. 1) on February 20, 2013, for
forfeiture of the defendant currency. Claimant John Salinas (“Salinas”) filed a Claim
(Filing No. 12) and Answer (Filing No. 13) to the Complaint on May 29, 2013. On March
20, 2014, Salinas’s counsel moved to withdraw on the grounds that he had been unable
to communicate with Salinas. (Filing No. 26.) The Court granted the motion to withdraw
on March 21, 2014, and directed Salinas’s counsel to mail copies of the Court’s Order to
Salinas. (Filing No. 27.) The Order also directed Salinas to file written notice with the
Court of his current address and telephone number within five days of being served with
the Order. (Id. at 1.) The Order notified Salinas that until substitute counsel entered an
appearance on his behalf, Salinas had the responsibility to comply with all court orders,

the Federal Rules of Civil Procedure, and the Local Rules of Practice. (Id. at 1-2.) The
Order further stated that failure to do so could result in the imposition of sanctions,
including the entry of default judgment. (Id.)
Salinas’s prior counsel filed a Certificate of Service (Filing No. 28) on April 14,
2014, indicating that he was unable to serve Salinas with the Order, but that he
informed Salinas of the Order’s content. (Filing No. 30 ¶¶ 1-2.) Prior counsel asked
Salinas for his current address and phone number, but Salinas did not provide any
contact information. (Id.) The United States moved to strike Salinas’s Claim and
Answer, and for entry of default judgment. (Filing No. 29.) Salinas has not responded to
the Motion.1 Judge Gossett recommended that the Motion to Strike be granted, and
that default judgment be entered in favor of the United States against Salinas.
DISCUSSION
Under 28 U.S.C. § 636(b)(1)(C), the Court conducted a de novo review of the
record and adopts the Findings and Recommendation in their entirety. Federal Rule of
Civil Procedure 37 allows a district court to dismiss an action or proceeding in whole or
in part for failure to obey a discovery order. Fed. R. Civ. P. 37(b)(2)(A). “Dismissal as a
discovery sanction is available only if there is ‘(1) an order compelling discovery, (2) a
willful violation of the order, and (3) prejudice to the other party.’” Bergstrom v.
Frascone, 744 F.3d 571, 576 (8th Cir. 2014) (quoting Schoffstall v. Henderson, 223
F.3d 818, 823 (8th Cir. 2000)). The Eighth Circuit also requires that, before dismissing a
case as a discovery sanction, a district court “must investigate whether a sanction less

1

The docket indicates that the Order was mailed to Salinas and returned as undeliverable. (Filing

No. 32.)

2

extreme than dismissal would suffice, unless the party's failure was deliberate or in bad
faith.” Id. (internal quotations omitted) (emphasis in original).
The record demonstrates that Judge Gossett entered an order compelling
discovery. The Court’s Order of March 21, 2014 (Filing No. 27), directed Salinas to file
written notice of his current address and telephone number within five business days of
being served with the Court’s Order. The Order required Salinas to comply with court orders
and the Federal and Local Rules, including discovery rules. The Order further advised
Salinas of the potential consequences of his failure to comply by listing several of the
possible sanctions enumerated in Rule 37(b). Accordingly, the Court’s Order is an order to
provide or permit discovery under Rule 37(b)(2).
The record also demonstrates that Salinas willfully failed to comply with the Order.
“Willful as used in the context of a failure to comply with a court order . . . implies a
conscious or intentional failure to act, as distinguished from accidental or involuntary
noncompliance.” Omaha Indian Tribe, Treaty of 1854 with U.S. v. Tract I-Blackbird Bend
Area, 933 F.2d 1462, 1468-69 (8th Cir. 1991). Salinas’s prior counsel filed a Certificate of
Service (Filing No. 28) stating he was unable to serve Salinas with the Order. However,
prior counsel informed Salinas of the Order’s content. (Id. ¶ 2.) The Certificate also states
Salinas refused to provide his current address and telephone number, and additional
attempts to contact Salinas were unsuccessful. (Id.) The Court is satisfied that Salinas was
informed of the Order’s contents, and consciously failed to comply.
Finally, the record shows the United States has been, and potentially would be,
prejudiced by Salinas’s failure to comply with the Order. Discovery cannot proceed
effectively absent Salinas’s contact information or appearance by new counsel. Thus,
Salinas’s noncompliance prevents the parties and the Court from proceeding in this action.

3

A less severe sanction would be ineffective because there is no indication that Salinas
plans to continue to pursue his claim.2
CONCLUSION
The record demonstrates that Salinas willfully failed to comply with a discovery
order. The Court has reviewed the record, considered less severe sanctions, and concludes
dismissal is reasonable. Accordingly,
IT IS ORDERED:

1.

The Findings and Recommendation (Filing No. 31) entered on June 18,
2014, by United States Magistrate Judge F.A. Gossett are adopted in their
entirety;

2.

Plaintiff’s Motion to Strike Claim (Filing No. 29) is granted;

3.

The Claim (Filing No. 12) and Answer (Filing No. 13), filed by Claimant
John Salinas, are stricken; and

4.

A separate default judgment in accordance with this Memorandum and
Order will be entered in favor of the Plaintiff as against Claimant John
Salinas.

Dated this 17th day of July, 2014.
BY THE COURT:
s/Laurie Smith Camp
Chief United States District Judge

2

Although the Court has considered less severe sanctions, Salinas’s noncompliance appears to
be deliberate. Under Bergstrom v. Frascone, consideration of less severe sanctions may be unnecessary.

4