UNITED STATES OF AMERICA v. Jerabek Personal Property

Filing 14

ORDER denying 12 Motion for Entry of Default - Signed by Julie A. Richards, Clerk of Court on 03/19/2013. (Baker, C.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
SOUTHERN DIVISION
No. 7:12-cv-00250-FL
UNITED STATES OF AMERICA,
Plaintiff,
V.

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ORDER

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JERABEK PERSONAL PROPERTY,
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Specifically Described As: A 2008 Dodge Charger, )
VIN: 2B3KA43G38H286411, and any and all
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attachments thereon; and any and all proceeds
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from the sale ofsaid property,
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Defendant.

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This matter is before the court on plaintiff's motion for entry of default [D.E. 12], which has
been referred to the undersigned. For the reasons that follow, the motion for entry of default will be
denied.
On August 28, 2012, plaintiff filed a complaint for forfeiture in rem alleging that the
defendant 2008 Dodge Charger, VIN: 2B3KA43G38H286411 , ("property") was used or intended
for use to transport or in any manner to facilitate the transportation, sale, receipt, possession, or
concealment of controlled substances in violation of Title II of the Controlled Substances Act, 21
U.S.C. §§ 801 et seq. , and is therefore subject to forfeiture to plaintiff pursuant to 21 U.S.C. §
881(a)(4). On December 5, 2012, plaintiff filed its proof of service, which indicated that potential
claimants Anna Carignan and Robert Evans Jerabek, Jr. were served on November 26, 2012 [D.E.
6 & 7]. On December 27, 2012, Jerabek filed, prose, a letter [D.E. 8] , which indicated that it was
filed in response to the notice of forfeiture and stating Jerabek's ownership interest in the property
and various reasons why he believed the property should be returned to his possession. On February

21 , 20 13, plaintiff filed a motion for entry of default [D .E. 12] and affidavit for failure to plead or
otherwise defend [D.E. 11]. Jerabek failed to file a response to plaintiffs motion.
Rule 55 of the Federal Rules of Civil Procedure provides that the clerk must enter default
when a party has "failed to plead or otherwise defend, and that failure is shown by affidavit or
otherwise[.]" Fed. R. Civ. P. 55(a). Plaintiff contends that it is entitled to default on the grounds
that no answer to the complaint has been filed. Plaintiff acknowledges that Jerabek filed a verified
claim, but asserts that he failed to file an answer, as required by Supplemental Rule G(5)(b ), despite
plaintiff expressly informing him by letter of the requirement to do so.
The undersigned is cognizant of the Supplemental Rules ' s requirement for the filing ofboth
a claim and an answer in response to a forfeiture action. See id. Supp. R. G(5)(a) & (b). However,
applying the Fourth Circuit' s "strong preference that, as a general matter, defaults be avoided and
that claims and defenses be disposed of on their merits," Colleton Preparatory Acad., Inc. v. Hoover
Universal, Inc., 616 F.3d 413, 417 (4th Cir. 2010), and considering Jerabek's prose status, the
undersigned finds entry of default inappropriate. Jerabek asserted both his ownership in the property
and his defenses to the complaint in his December 27, 2012 letter, and the undersigned liberally
construes Jerabek's pro se filing to include both a claim and an answer. See White v. White, 886
F.2d 721, 722-23 (4th Cir. 1989) (prose pleadingly are entitled to more liberal treatment than those
drafted by attorneys). AccordinglY., the motion for entry of default is denied.

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SO ORDERED. This_\_ day of March 2013 .

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J
A. Richards
Clerk of Court
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