United States of America v. $1,000.00 refunded to Mango Creek Properties, Inc. from GBS Partners,Inc. seized on January 28, 2010 et al

Filing 49

MEMORANDUM AND ORDER - Plaintiff's motion to strike (Filing No. 19 ) is granted. Filing Nos. 12 , 13 , 15 , 26 , and 31 are deemed stricken for the reason that Mr. Williams has not established standing to contest the forfeiture, which must be done before he may file any substantive motions in the case. Plaintiff's request to enter default (Filing No. 21 ) is granted. Shannon Williams is in default for failure to file a claim herein. Mr. Williams' motion to appoint c ounsel (Filing No. 27 ) is denied. Mr. Williams' motion for copies and notice of change of address (Filing No. 30 ) is granted. The clerk of court shall furnish the copies requested in that filing to Mr. Williams. Ordered by Senior Judge Lyle E. Strom. (Copies mailed as directed) (AOA)

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

)
)
Plaintiff,
)
)
v.
)
)
$1,000.00 refunded to Mango
)
Creek Properties, Inc., from )
GBS Partners, Inc., seized on )
January 28, 2010; et al.,
)
)
Defendants.
)
______________________________)

8:11CV372

MEMORANDUM AND ORDER

This matter is before the Court upon plaintiff’s motion
to strike (Filing No. 19) and request to enter default (Filing
No. 21) and claimant Shannon Williams’ objection to reassignment
order and motion to transfer to new jurisdiction (Filing No. 12),
three motions to dismiss (Filing Nos. 13, 15, 26), motion in
response to default judgment and motion to appoint counsel
(Filing No. 27), motion for copies and notice of change of
address (Filing No. 30), and motion for default (Filing No. 31).
I. Background
On October 27, 2011, plaintiff filed a complaint for
forfeiture in rem (Filing No. 1), asserting several personal and
real properties were forfeitable to the United States pursuant to
18 U.S.C. §§ 981 and 1956, and 21 U.S.C. § 881.

The complaint

further alleges Shannon Williams (“Mr. Williams”) has an interest
in some of the defendant properties.

Thus, pursuant to Rule

G(4)(b)(i), Supplemental Rules for Admiralty or Maritime Claims

and Asset Forfeiture Actions (hereinafter “Supplemental Rules”),
plaintiff provided Mr. Williams direct notice of this forfeiture
action by causing him to be personally served with a copy of the
complaint, the notice of seizure, the warrant for arrest in rem,
and the Court’s reassignment order.

This direct notice is

evidenced by the U.S. Marshals Service’s process, receipt and
return (Filing No. 11).

Mr. Williams received a copy of all of

these items on October 28, 2011 (Filing No. 11).
On November 8, 2011, Mr. Williams filed an objection to
reassignment order and motion to transfer to new jurisdiction
(Filing No. 12).

On November 9, 2011, Mr. Williams filed a

motion to dismiss (Filing No. 13), and on November 21, 2011, Mr.
Williams filed another motion to dismiss (Filing No. 15).
On December 15, 2011, plaintiff filed a motion to
extend time to file its responses to the objection to
reassignment order and motion to transfer to new jurisdiction and
motions to dismiss (Filing No. 17).

The motion was granted, and

plaintiff was ordered to respond to all pending motions filed by
Mr. Williams no later than January 3, 2012.

See Filing No. 18.

On December 16, 2011, in response to all pending motions filed by
Mr. Williams, plaintiff filed a motion to strike Mr. Williams’
objection to reassignment order and motion for transfer to new
jurisdiction and motions to dismiss (Filing No. 19), for the
reason that Mr. Williams has not established standing to contest

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this forfeiture, which must be done before he may file any
substantive motions in the case.

On the same day, plaintiff also

filed a request to enter the default of Mr. Williams in this
matter, for failure to file a claim (Filing No. 12).
On December 22, 2011, Mr. Williams filed a third motion
to dismiss (Filing No. 26).

On December 27, 2011, Mr. Williams

filed a motion in response to default judgment and motion to
appoint counsel (Filing No. 27).

On January 20, 2012, Mr.

Williams filed a motion for copies and notice of change of
address (Filing No. 30) and a motion for default (Filing No. 31).
II. Plaintiff’s motion to strike (Filing No. 19) and
request to enter default (Filing No. 21), and Mr. Williams’
response (Filing No. 27)
Plaintiff concedes Mr. Williams is entitled to move to
dismiss the complaint in this matter pursuant to Fed.R.Civ.P.
12(b), but only after he has established standing to contest this
forfeiture action pursuant to Rule G(8)(b) of the Supplemental
Rules.

See United States v. $10,000 in United States Currency,

2008 WL 1944562, *4 (D. Neb.)(“The filing of a verified claim is
a prerequisite to the filing of an answer and confers standing on
a claimant to contest forfeiture.” (internal quotation and
citation omitted)).

Plaintiff alleges Mr. Williams has failed to

establish standing in this matter.

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Mr. Williams received a copy of the complaint for
forfeiture in rem, the notice of complaint for forfeiture, and
the warrant for arrest in rem on October 28, 2011 (Filing No.
11).

The notice (Filing No. 2) informed him that, within thirty-

five days of the service date, he must file a claim, signed under
penalty of perjury, identifying the specific property claimed,
identifying the claimant and stating the claimant’s interest in
the property, and that he must filed a copy of such claim with
the Court, and must serve a copy of such claim on the plaintiff’s
attorney.

See Rule G(8)(b), Supplemental Rules.

The notice also

informed Mr. Williams that failure to follow the requirements set
forth in the notice may result in a default judgment taken
against him for relief requested in the complaint.
thirty-five day period expired December 2, 2011.

Id.

Said

Id.

Mr. Williams alleges “he did immediately send in a
claim to all of the property the [plaintiff] is seeking to
forfeit.”

See Filing No. 27.

Mr. Williams further asserts such

claim was either lost by the Clerk of this Court or the U.S. mail
system.

See id.

In the alternative, Mr. Williams also argues

the Court should deny plaintiff’s motion because he “is a pro-se
claimant who is presently incarcerated without the rules of civil
procedure law books.”

See id.

The Eighth Circuit has “repeatedly held that district
courts may require claimants in forfeiture proceedings to comply
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strictly with [the Supplemental Rules] in presenting their claims
to the court.”

United States v. Three Parcels of Real Property,

43 F.3d 388, 391 (8th Cir. 1994).

The Eighth Circuit has also

held “[p]rocedural default is not excused merely because
claimants are proceeding pro se.”

Id. at 392.

As Mr. Williams

has failed to provide this Court with any evidence supporting his
contention that he filed a timely claim, and the notice served
upon Mr. Williams adequately provided instructions pursuant to
the Supplemental Rules for filing a proper claim, the Court,
pursuant to the rulings of the Eighth Circuit, finds Mr. Williams
has failed to establish standing in this matter.
Thus, the Court will grant plaintiff’s motion to strike
and request to enter default.

Mr. Williams’ Filing Nos. 12, 13,

and 15 are deemed stricken pursuant to plaintiff’s motion, and
Mr. Williams’ Filing Nos. 26 and 31, filed after plaintiff’s
motion to strike, will also be deemed stricken.

The Court shall

enter the default of Shannon Williams in this matter for failure
to file a claim herein.
III. Mr. Williams’ motion to appoint counsel (Filing
No. 27) and motion for copies and notice of change of address
(Filing No. 30)
Mr. Williams moves the Court to appoint counsel for
this civil forfeiture proceeding (Filing No. 27).

The Court will

deny Mr. Williams’ motion because there is no Sixth Amendment
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right to counsel in civil forfeiture proceedings.
§ 982(b).

See 18 U.S.C.

The Court has reviewed Mr. Williams motion for copies

and notice of change of address (Filing No. 30) and will provide
Mr. Williams with responses of the government that he has not yet
received, if any, at his new address.

Accordingly,

IT IS ORDERED:
1)
granted.

Plaintiff’s motion to strike (Filing No. 19) is

Filing Nos. 12, 13, 15, 26, and 31 are deemed stricken

for the reason that Mr. Williams has not established standing to
contest the forfeiture, which must be done before he may file any
substantive motions in the case.
2)

Plaintiff’s request to enter default (Filing No.

21) is granted.

Shannon Williams is in default for failure to

file a claim herein.
3)

Mr. Williams’ motion to appoint counsel (Filing No.

27) is denied.
4)

Mr. Williams’ motion for copies and notice of

change of address (Filing No. 30) is granted.

The clerk of court

shall furnish the copies requested in that filing to Mr.
Williams.
DATED this 27th day of January, 2012.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court
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