United States of America v. $33,984.00 in United States Currency

Filing 27

ORDER that the plaintiff's Motion to Strike 24 is deemed a Motion to Compel and is granted. Eric Bowen shall present himself for deposition to be rescheduled at the convenience of the parties counsel on or before January 18, 2013, or show cau se why his Answer and Claim should not be stricken for failure to comply with this courts orders. The deadline for the parties to prepare a proposed final pretrial conference order in accordance with NECivR 16.2 and submit it to the assigned magistrate judge is extended until after resolution of the plaintiffs motion. Ordered by Magistrate Judge Thomas D. Thalken. (Copy mailed to pro se party) (MKR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
UNITED STATES OF AMERICA,
Plaintiff,
vs.
$33,984.00 IN UNITED STATES
CURRENCY,
Defendant,
ERIC BOWEN,
Claimant.

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8:12CV65
ORDER

This matter is before the court on the plaintiff’s Motion to Strike (Filing No. 24). The
plaintiff filed a brief (Filing No. 26) and an index of evidence (Filing No. 25) in support of
the motion. Specifically, the plaintiff seeks an order striking Eric Bowen’s (Bowen) Answer
and Claim based on his failure to participate in discovery or appear for a deposition in this
matter. Bowen did not respond to the motion.
The plaintiff seeks to have the Answer and Claim stricken pursuant to Federal Rule
of Civil Procedure 37(b)(2)(A), which authorizes a court to enter sanctions against a party
who fails to obey a discovery order. See Fed. R. Civ. P. 37(b)(2)(A). The plaintiff relies
on the court’s April 18, 2012, Order for Progression of Forfeiture Case, which states, “[t]he
parties may now commence discovery.” See Filing No. 10.
A general discovery order allowing the parties to engage in discovery is insufficient
to impose sanctions as “an order to provide or permit discovery” within the meaning of Rule
37(b)(2). See Fjelstad v. Am. Honda Motor Co., Inc., 762 F.2d 1334, 1339 (9th Cir.
1985) (noting “a blanket directive to comply with the discovery rules” may be insufficient
under Rule 37(b)(2)). Although “the definition of ‘order’ in Rule 37(b) has been read
broadly, . . . Rule 37(b)(2) has never been read to authorize sanctions for more general
discovery abuse.” Unigard Sec. Ins. Co. v. Lakewood Eng’g & Mfg. Corp., 982 F.2d
363, 368 (9th Cir. 1992); see Halaco Eng’g Co. v. Costle, 843 F.2d 376, 379-80 (9th Cir.

1988) (noting “order” would not be broadly interpreted to include any order relating to
discovery); Salahuddin v. Harris, 782 F.2d 1127, 1132 (2d Cir. 1986) (“To imply an order
to compel discovery from . . . [implied orders or general discovery] documents would be
fanciful.”); United States v. Nat’l Med. Enters., 792 F.2d 906, 912 (9th Cir. 1986) (“The
precise issue . . . is not whether the conduct leading to the orders was improper, but rather
whether the . . . orders gave clear notice that the conduct found . . . would result in a
dismissal of the action.”).
The proposition that an order to answer specific deposition
questions can be implied from such a blanket directive-a
directive which does not mention the subject matter inquired
into-is inconsistent with both the structure and language of
Rule 37 and unsupported by any respectable authority.
Mindful of the “strong policy favoring disposition of cases on
the merits,” we are especially reluctant to read a specific order
by implication into such general language when the sanction
sought is dismissal.
R.W. Int’l Corp. v. Welch Foods, Inc., 937 F.2d 11, 15-16 (1st Cir. 1991) (internal citation
omitted).1
Accordingly, the court will treat the plaintiff’s motion not as a motion seeking
sanctions under Rule 37(b)(2), but as a preliminary motion seeking an order to compel the
claimant’s deposition under Rule 37(a). Depositions are governed by Federal Rule of Civil
Procedure 30. Pursuant to Rule 30: “A party may, by oral questions, depose any person,
including a party, without leave of court except as provided in Rule 30(a)(2).” Fed. R. Civ.
P. 30(a)(1) (the exceptions, including the deponent having already been deposed in the
case or the deponent being confined in prison, are inapplicable in this instance). However,
“[a] party who wants to depose a person by oral questions must give reasonable written
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Instead of following the protocol lim ned in Rule 37, that is, . . . seeking an
order to com pel [party] to respond to the questions and to pay the expenses
ancillary thereto, [m ovant’s] counsel elected to bypass Rule 37(a) and seek
im m ediate dism issal of the suit. In the circum stances at bar, that was
tantam ount to a ball player sprinting from second base to hom e plate,
without bothering to round, let alone touch, third base. Under such
circum stances, the district court's prem ature resort to Rule 37(b)(2) cannot
be upheld .
R.W. Int’l Corp., 937 F.2d at 15.

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notice to every other party.” Fed. R. Civ. P. 30(b)(1). Absent compliance with such
reasonable written notice, “a party may move for an order compelling disclosure or
discovery. The motion must include a certification that the movant has in good faith
conferred or attempted to confer with the person or party failing to make disclosure or
discovery in an effort to obtain it without court action.” Fed. R. Civ. P. 37(a)(1). “The court
where the action is pending may, on motion, order sanctions if: (i) a party . . . fails, after
being served with proper notice, to appear for that person’s deposition. . . .” Fed. R. Civ.
P. 37(d)(1)(A). Furthermore, “[i]f the court where the discovery is taken orders a deponent
to be sworn or to answer a question and the deponent fails to obey, the failure may be
treated as contempt of court.” Fed. R. Civ. P. 37(b)(1). Under these circumstances, the
court may order the non-compliant party’s pleadings stricken or default judgment entered.
Fed. R. Civ. P. 37(b)(2)(A).
In this case, the plaintiff’s counsel states that she attempted to negotiate with Bowen
by letter on two occasions to determine an agreed-upon date and time for Bowen to appear
in her office for a deposition. See Filing No. 26 - Brief p. 2. When Bowen did not respond
to the letters, the plaintiff filed a Notice of Deposition Duces Tecum, giving Bowen
reasonable written notice of the scheduled deposition.

See Filing No. 21 (setting

deposition for September 21, 2012); Filing No. 22 (rescheduling deposition for October 16,
2012). The plaintiff sent notice of the deposition to Bowen at the address Bowen provided
to the court on his Claim and Answer. Id. Bowen did not appear at the scheduled
deposition or contact plaintiff’s counsel. See Filing No. 25-1 - Svoboda Aff. ¶¶ 9-11; Filing
No. 25-5 Ex. D Depo. Tr.
The court finds the plaintiff gave the claimant reasonable written notice of the
deposition after the plaintiff attempted to confer about the date for the deposition. The
claimant failed to appear at the noticed deposition. Despite proceeding without the
assistance of legal counsel, Bowen is “bound by and must comply with all local and federal
procedural rules.” See NEGenR 1.3(g). Bowen has not given any information about why
he failed to appear. Upon consideration,

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IT IS ORDERED:
1.

The plaintiff’s Motion to Strike (Filing No. 24) is deemed a Motion to Compel

and is granted.
2.

Eric Bowen shall present himself for deposition to be rescheduled at the

convenience of the parties counsel on or before January 18, 2013, or show cause why
his Answer and Claim should not be stricken for failure to comply with this court’s orders.
3.

The deadline for the parties to prepare a proposed final pretrial conference

order in accordance with NECivR 16.2 and submit it to the assigned magistrate judge is
extended until after resolution of the plaintiff’s motion.
Dated this 27th day of November, 2012.
BY THE COURT:
s/ Thomas D. Thalken
United States Magistrate Judge

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