UNITED STATES OF AMERICA v. $722.31 IN FUNDS FROM COASTAL FEDERAL CREDIT UNION ACCOUNT ENDING IN 6442, IN THE NAMES OF CLAUDE VERBAL AND PAMELA VERBAL et al

Filing 17

MEMORANDUM OPINION, ORDER, AND RECOMMENDED RULING OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 07/16/2013; that the Oral Motion to Dismiss by the United States (Docket Entry dated July 8, 2013) be granted,that Claimant V erbal's Verified Forfeiture Claim (Docket Entry 7 ) be dismissed, and that his related Answer (Docket Entry 10 ) be stricken. ORDERED that Attorney Simmons's Motion to Withdraw (Docket Entry 15 ) is GRANTED and that he is terminated as counsel of record for Claimant Verbal. FURTHER that the Motion to Compel by the United States (Docket Entry 12 ) is TERMINATED AS MOOT. (Garland, Leah)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

UNITED STATES OF AMERICA,
Plaintiff,
v.
$722.31 IN FUNDS FROM
COASTAL FEDERAL CREDIT UNION
ACCOUNT ENDING IN 6442, IN
THE NAMES OF CLAUDE VERBAL
AND PAMELA VERBAL, et al.,
Defendants,
CLAUDE VERBAL,
Claimant.

)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)

1:12CV1096

MEMORANDUM OPINION, ORDER, AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
This

case

comes

before

the

undersigned

United

States

Magistrate Judge on a Motion to Compel (Docket Entry 12) and an
oral Motion to Dismiss the Forfeiture Claim by Claude Verbal (see
Minute Entry dated July 8, 2013), both filed by the United States,
as well as a Motion to Withdraw (Docket Entry 15), filed by
Claimant Verbal’s counsel.

For the reasons that follow, Geoffrey

H. Simmons will be terminated as counsel of record for Claimant
Verbal and the Court should dismiss Claimant Verbal’s Verified
Forfeiture Claim (Docket Entry 7), thus rendering the instant
Motion to Compel (Docket Entry 12) moot.

BACKGROUND
This case began when the United States filed a Complaint for
forfeiture of certain property. (Docket Entry 1.) Claimant Verbal
(through Attorney Simmons) thereafter filed a Verified Forfeiture
Claim (Docket Entry 7) and related Answer (Docket Entry 10).
Discovery then commenced (see Docket Entry dated Mar. 11, 2013)
and, during the discovery period, the United States moved to compel
responses to discovery it had served on Claimant Verbal (Docket
Entry 12).

Claimant Verbal did not respond to that Motion.

(See

Docket Entries dated May 8, 2013, to present.)
The Court (per the undersigned Magistrate Judge) subsequently
set the case for a hearing, noted that the North Carolina State Bar
had disbarred Attorney Simmons, and directed Claimant Verbal (or an
attorney authorized to practice law in this Court who had made an
appearance in this case) to appear. (See Text Order dated June 20,
2013.)

Said Order (which the Clerk served on Claimant Verbal at

the address for him provided by his (different) counsel of record
in a related criminal case) expressly warned that a failure to
comply with said Order could result in the imposition of casedispositive sanctions without further notice.

(See id.)

Claimant

Verbal did not appear as ordered; nor did any attorney appear for
(See Minute Entry dated July 8, 2013.)1

him.

1

Before the hearing, Attorney Simmons filed his instant
Motion to Withdraw acknowledging his disbarment. (Docket Entry 15.)
-2-

At the hearing, counsel for the United States indicated that,
since the filing of the instant Motion to Compel, Claimant Verbal
had

served

untimely,

incomplete

responses

to

interrogatories

propounded by the United States, but still had not responded to its
requests for production of documents.

(See id.; see also Docket

Entry 16 (supplement filed by United States regarding Claimant
Verbal’s discovery response).)

Said counsel further represented

that neither Claimant Verbal nor any attorney purporting to act on
his behalf had communicated with the United States since the
setting of the hearing.

(See Minute Entry dated July 8, 2013.)

In

light of all the circumstances, counsel for the United States
orally moved for dismissal of Claimant Verbal’s forfeiture claim.
(See id.; Docket Entry dated July 8, 2013.)
DISCUSSION
“The Federal Rules of Civil Procedure recognize that courts
must have the authority to control litigation before them, and this
authority includes the power to order dismissal of an action for
failure to comply with court orders.” Ballard v. Carlson, 882 F.2d
93, 95 (4th Cir. 1989).

In this case, after failing to properly

answer discovery and to respond to the Motion to Compel by the
United States, Claimant Verbal disobeyed the Court’s Order to
appear at a hearing.

These circumstances warrant dismissal of his

forfeiture claim.

-3-

In making this recommendation, the undersigned Magistrate
Judge recognizes that “dismissal is not a sanction to be invoked
lightly.”

Id.

Generally, before taking such action, a court

should consider: “(i) the degree of personal responsibility of the
[litigant]; (ii) the amount of prejudice caused the [opposing
party]; (iii) the existence of a history of deliberately proceeding
in a dilatory fashion; and (iv) the existence of a sanction less
drastic than dismissal.”

Id.

In this case, Claimant Verbal bears

sole responsibility for his failure to appear as ordered, such
conduct prejudiced the United States by causing its counsel to
attend a hearing at which nothing could be accomplished, the record
reflects a pattern of dilatory conduct by Claimant Verbal, and no
other sanction appears feasible or sufficient.
As

to

that

last

point,

the

Court

(per

the

undersigned

Magistrate Judge) specifically warned Claimant Verbal that his
failure to attend the hearing could result in dismissal of his
claim.

“In view of th[at] warning, the [Court] ha[s] little

alternative to dismissal.
of]

plac[ing]

the

invit[ing] abuse.”

Any other course would have [the effect

credibility

of

the

[C]ourt

in

doubt

and

Id.

IT IS THEREFORE RECOMMENDED that the Oral Motion to Dismiss by
the United States (Docket Entry dated July 8, 2013) be granted,
that Claimant Verbal’s Verified Forfeiture Claim (Docket Entry 7)

-4-

be dismissed, and that his related Answer (Docket Entry 10) be
stricken.
IT IS ORDERED that Attorney Simmons’s Motion to Withdraw
(Docket Entry 15) is GRANTED and that he is terminated as counsel
of record for Claimant Verbal.
IT IS FURTHER ORDERED that the Motion to Compel by the United
States (Docket Entry 12) is TERMINATED AS MOOT.

/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
July 16, 2013

-5-