UNITED STATES OF AMERICA v. CURRENCY, $43,660.00 IN U.S. et al

Filing 24

MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 04/22/2016. Claimant's conclusory contention that he did not receive the Motion to Compel and Discovery Order falls well sh ort of rebutting the presumption of delivery; however, even if that allegation of non-delivery provided sufficient grounds to reconsider the Discovery Order, Claimant waived his objection to the scope of discovery and his Fifth Amendment privilege by not timely responding to the Document Requests, rendering futile any reconsideration of the Discovery Order. RECOMMENDED that Claimant's Motion to Set Aside (Docket Entry 22 ) be denied.(Taylor, Abby)

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

UNITED STATES OF AMERICA,

)
)
)
)
)
)
)
)
)
)
)

Plaintiff,
v.
$43,660.00 in U.S. CURRENCY
and $4,000.00 in U.S.
CURRENCY,
Defendants.

1:15CV208

MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
This

case

comes

before

the

undersigned

United

States

Magistrate Judge on the “Motion to Set Aside Order Compelling
Production

of

Document

and

Objection

to

Magistrate’s

Recommendations” (Docket Entry 22) (the “Motion to Set Aside”) of
pro se claimant Vaughn Johnson (the “Claimant”).

For the reasons

that follow, the Court should deny the Motion to Set Aside.
I. BACKGROUND
The Motion to Set Aside requests that the Court “reconsider”
its previous order (Text Order dated Nov. 17, 2015) (the “Discovery
Order”)

granting

Plaintiff’s

“Motion

to

Compel

Response

Discovery” (Docket Entry 14) (the “Motion to Compel”).
Entry

22

at

10

(“[Claimant]

respectfully

requests

to

(Docket

that

this

honorable Court reconsider its order compelling disclosure . . .

and set aside its order compelling disclosure.”).)

Plaintiff’s

Motion to Compel alleged that
[o]n or about June 24, 2015, Plaintiff served
[Claimant] . . . with a set of Interrogatories [(the
“Interrogatories”)] and Requests for Production of
Documents [(the “Document Requests”)] . . . . Claimant’s
answers to the Interrogatories and [Document Requests]
were due by July 27, 2015.
Responses to the
Interrogatories were received on September 16, 2015.
On September 18, 2015, [Plaintiff] sent a letter to
Claimant requesting responses to the [Document Requests].
On September 29, 2015, [Plaintiff] sent a second
letter to Claimant requesting responses to the [Document
Requests].
To date, no responses to the [Document Requests]
have been received.
(Docket Entry 15 at 1-2 (citations omitted).) The Motion to Compel
also contended that “Claimant has not . . . asserted any proper
objection or claim of privilege” to the Document Requests (id. at
2), and asked the Court to compel Claimant “to respond completely
and fully” to the Document Requests (Docket Entry 14 at 1).
Claimant did not respond to the Motion to Compel. (See Docket
Entries dated Oct. 21, 2015, to present.)

Accordingly, the Court

entered the Discovery Order, which granted the Motion to Compel,
“order[ed] Claimant to respond to Plaintiff’s [D]ocument [R]equests
by [November 30, 2015],” and warned him that “[f]ailure . . . to
comply

with

th[e]

[Discovery]

Order

w[ould]

result

in

the

imposition of sanctions under [Rule] 37(b)(2) [of the Federal Rules
of Civil Procedure (the “Rules”)], including the striking of

2

[Claimant’s] Verified Claim [(Docket Entry 6)] and [Claimant’s]
Verified Answer [(Docket Entry 7)] and/or the entry of a default
judgment against Claimant.”

(Text Order dated Nov. 17, 2015.)

Claimant did not object to the Discovery Order (see Docket
Entries dated Nov. 17, 2015, to present), or comply with its
mandate to respond to Plaintiff’s Document Requests (see Docket
Entry 19 at 2 (“Claimant has not responded to Plaintiff’s [Document
Requests].”)). Consequently, on December 16, 2015, Plaintiff filed
a “Motion to Strike” (Docket Entry 18), requesting that the Court
strike Claimant’s Verified Claim for Claimant’s failure to comply
with the Discovery Order (Docket Entry 19 at 2-5).
not respond to the Motion to Strike.
Dec. 16, 2015, to present.)

Claimant did

(See Docket Entries dated

As a result, the undersigned entered

a Memorandum Opinion and Recommendation (the “Recommendation”),
recommending that the Court grant Plaintiff’s Motion to Strike
(Docket Entry 18) and strike Claimant’s Verified Claim (Docket
Entry 6) and Verified Answer (Docket Entry 7) for his failure to
(Docket Entry 20.)1

comply with the Discovery Order.

Now, in a belated attempt to object to Plaintiff’s Document
Requests,

Claimant’s

Motion

to

1

Set

Aside

“moves

this

Court,

The Court has not yet ruled on the Recommendation. (See
Docket Entries dated Feb. 9, 2016, to present.) Although labeled,
in part an objection to the Recommendation, the Motion to Set Aside
actually presents no objections directed to the Recommendation.
(See Docket Entry 22.) Instead, the Motion to Set Aside implicitly
contests the Recommendation by challenging the Discovery Order (the
violation of which underlies the Recommendation).
3

pursuant to Rule 60 . . . to set aside the [Discovery Order] in
violation of [Plaintiff’s] Fifth Amendment [r]ights.”
Entry 22 at 1.)

(Docket

Specifically, the Motion to Set Aside alleges:

(1) that “[Claimant] has been receiving sporadic mail and did not
receive the Motion to Compel or [Discovery Order] via U.S. Mail,”
(2) that he responded to Plaintiff’s Interrogatories on September
29, 2015, and (3) that he “objected to the [I]nterrogatories [as]
being overly broad and asserted his Fifth Amendment privilege.”
(Id. at 4.)2

For these reasons, Claimant “requests that [the]

Court reconsider its [Discovery Order], [and] find that [Claimant]
has standing to contest the forfeiture” and that he properly
asserted “his Fifth Amendment [r]ight to resist [t]he overly broad
[I]nterrogatories

and

[Document

Requests].”

(Id.

at

10.)3

2

Claimant only alleges not receiving the Motion to Compel and
Discovery Order (Docket Entry 22 at 4), which, by negative
implication, indicates that Claimant received all other documents
mailed to him in this case, including: (1) Plaintiff’s letter dated
September 18, 2015, asking Claimant to respond to the Document
Requests and warning him that “failure to respond may ultimately
result in . . . dismissal of [his] claim” (Docket Entry 15 at 38);
(2) Plaintiff’s letter dated September 29, 2015, again asking
Claimant to respond to the Document Requests and again warning him
that “failure to respond may ultimately result in . . . dismissal
of [his] claim” (id. at 39); and (3) Plaintiff’s Motion to Strike
and supporting memorandum requesting that the Court strike
Claimant’s Verified Claim for his failure to comply with the
Discovery Order (Docket Entry 18 at 3; Docket Entry 19 at 7).
Despite receiving each of these documents, Claimant did not respond
with his objections to the Document Requests until the Motion to
Set Aside. (See Docket Entry 23 at 2-3.)
3

The Motion to Set Aside asserts that Claimant has
“constitutional standing” to challenge the forfeiture of the
Defendant property. (Docket Entry 22 at 4-10.) Plaintiff does not
4

Claimant’s arguments do not warrant relief, and thus the Court
should deny the Motion to Set Aside.
II. LEGAL STANDARD
Claimant contends that the Court’s authority to reconsider the
Discovery Order arises under Rule 60(b).

(Id. at 4.)

However,

that Rule governs reconsideration of a “final judgment, order, or
proceeding.”

Fed. R. Civ. P. 60(b) (emphasis added).

An order

granting a motion to compel is an interlocutory order, not a final
order.
481,

Mount Hawley Ins. Co. v. Felman Prod., Inc., No. 3:09-cv-

2010

WL

1404107,

at

*2-*3

(S.D.W.

Va.

Mar.

30,

2010)

(unpublished) (concluding that an order granting a motion to compel
represents an interlocutory order and not a final judgment); see
also In re Topper, 23 F. App’x 127, 128 (4th Cir. 2001) (“A final
order is one that disposes of all the issues in dispute as to all
parties, and ‘ends the litigation on the merits and leaves nothing
for the court to do but execute the judgment.’” (quoting Catlin v.
United States, 324 U.S. 229, 233 (1945))).
“The [Rules] do not set out any standard for reconsideration
of interlocutory orders,” Akeva, LLC v. Adidas Am., Inc., 385 F.
Supp. 2d 559, 565 (M.D.N.C. 2005), but only provide that

contest Claimant’s Article III standing (Docket Entry 23 at 2), and
the undersigned recommended dismissal of Claimant’s Verified Claim
and Verified Answer based on Claimant’s failure to comply with the
Discovery Order, not for lack of standing (see Docket Entry 20).
As no challenge to Claimant’s standing currently exists, his
arguments regarding standing are not relevant to the determination
of whether the Court should reconsider the Discovery Order.
5

any order or other decision, however designated, that
adjudicates fewer than all the claims or the rights and
liabilities of fewer than all the parties does not end
the action as to any of the claims or parties and may be
revised at any time before the entry of a judgment
adjudicating all the claims and all the parties’ rights
and liabilities.
Fed. R. Civ. P. 54(b).

Accordingly, under Rule 54(b), the Court

possesses the discretion to revisit its Discovery Order at any time
prior to final judgment.

See United States v. Duke Energy Corp.,

218 F.R.D. 468, 473–74 (M.D.N.C. 2003).
Although

“[m]otions

for

reconsideration

of

interlocutory

orders are not subject to the strict standards applicable to
motions for reconsideration of a final judgment,” American Canoe
Ass’n v. Murphy Farms, Inc., 326 F.3d 505, 514 (4th Cir. 2003), for
guidance “courts applying Rule 54(b) have borrowed factors from
Rule

59(e)

and

Rule

60(b),

which

include

(1)

evidence

not

previously available has become available, (2) an intervening
change in the controlling law, (3) a clear error of law or manifest
injustice,

(4)

neglect, or

mistake,

(5)

any

inadvertence,

other

operation of the judgment.”

reason

surprise

justifying

or

relief

excusable
from the

McGhee v. United States, Civ. Action

No. 5:09-CT-3192, 2011 WL 2976274, at *1 (E.D.N.C. Jul. 22, 2011)
(unpublished)

(citing

Fayetteville

Investors

v.

Commercial

Builders, Inc., 936 F.2d 1462, 1469 (4th Cir. 1991), and Superior
Bank v. Tandem Nat’l Mortg., 197 F. Supp. 2d 298, 332 (D. Md.
2000)).

6

Courts also must consider that “[p]ublic policy favors an end
to litigation” and “efficient operation [of the courts] requires
the avoidance of re-arguing questions that have already been
decided.”

Akeva, 385 F. Supp. 2d at 565 (citing Official Comm. of

Unsecured Creditors of Color Tile, Inc. v. Coopers & Lybrand, LLP,
322 F.3d 147, 167 (2d Cir. 2003)).

To that end, a motion to

reconsider under Rule 54(b) “is not proper where it only asks the
Court to rethink its prior decision, or presents a better or more
compelling argument that the party could have presented in the
original briefs on the matter.”

Volumetrics Med. Imaging, LLC v.

Toshiba Am. Med. Sys. Inc., No. 1:05CV955, 2011 WL 6934696, at *2
(M.D.N.C. Dec. 30, 2011) (unpublished) (internal quotation marks
omitted).

“This approach makes sense not only because the limited

use of a motion to reconsider serves to ensure that parties are
thorough and accurate in their original pleadings and arguments
presented

to the

Court but

also

because

allowing

motions

to

reconsider offhandedly or routinely would result in an unending
motions practice.”

Studivent v. Huskey, No. 1:10CV144, 2013 WL

170005, at *3 (M.D.N.C. Jan. 16, 2013) (unpublished) (alterations
and internal quotation marks omitted); see also Coryn Grp. II, LLC
v. O.C. Seacrets, Inc., No. 08–2764, 2011 WL 4701749, at *2 n.4 (D.
Md. Sept. 30, 2011) (unpublished) (“Routine reconsideration of
interlocutory orders would undermine judicial economy and respect
for the finality of decisions.”).

7

III. ANALYSIS
Under this standard, Claimant has failed to establish any
basis for reconsideration of the Discovery Order.

First, Claimant

alleges that he “has been receiving sporadic mail and did not
receive the Motion to Compel or [Discovery Order] via U.S. Mail.”
(Docket Entry 22 at 4.)4

In that regard, “[t]he rule is well

settled that proof that a letter properly directed was placed in a
post office creates a presumption that it reached its destination
in usual time and was actually received by the person to whom it
was addressed.” Hagner v. United States, 285 U.S. 427, 430 (1932).
The party seeking to rebut the presumption of receipt must present
“strong evidence to the contrary.”
F.3d 442, 451 (4th Cir. 2007).

Bosiger v. U.S. Airways, 510

A party’s mere assertion that “his

failure to receive mail [wa]s due to the rural nature of his
mailing location, confusion over the location of his post office
box in relation to that of a similarly named entity, and the
general failings of rural route mail carriers” will not rebut the
presumption of receipt.

In re Ebersole, 453 B.R. 636, 638 (Bankr.

W.D. Va. 2011) (denying party’s Rule 60(b) contention alleging nonreceipt of the court’s pre-hearing order where a court-generated

4

Although Claimant does not identify a Rule or provision that
supports reconsideration on that basis, courts considering similar
arguments have borrowed Rule 60(b)(6)’s “catchall” provision that
allows for reconsideration for “any other reason that justifies
relief,” Fed. R. Civ. P. 60(b)(6). See, e.g., In re Ebersole, 453
B.R. 636, 637 (Bankr. W.D. Va. 2011).
8

certificate of mail indicated that the pre-hearing order “was sent
via mail to [that party] at his address”).
In this case, Claimant included the same address in his Motion
to Set Aside (Docket Entry 22 at 1) that he provided in each of his
previous Court filings (see Docket Entry 6 at 1; Docket Entry 7 at
1; Docket Entry 8 at 1).

The Court mailed the Discovery Order to

Claimant at that address (see Docket Entry dated Nov. 18, 2015),
and received no indication of any failure of delivery (see Docket
Entries

dated

Nov.

18,

2015,

to

present).

In

like

manner,

Plaintiff attached certificates of service to the Motion to Compel
and accompanying memorandum, certifying that Plaintiff mailed both
documents to Claimant at the same address that Claimant provided in
his court filings.

(Docket Entry 14 at 3; Docket Entry 15 at 5.)

This evidence of mailing creates a strong presumption that Claimant
received both the Discovery Order and Motion to Compel.

See

P.L.U.S. Brokerage, Inc. v. Jong Eun Kim, 908 F. Supp. 2d 711, 716
(D. Md. 2012) (“Mail sent is presumed delivered absent strong
evidence to the contrary.” (citing Bosiger, 510 F.3d at 452)).
In the face of that presumption, Claimant has provided no
evidentiary support for any alleged “sporadic” receipt of mail in
general or non-delivery of the Motion to Compel or Discovery Order
in particular. (See Docket Entry 22 at 1-10.)5

5

Claimant did not
(See Docket Entry 22.)

verify
9

his

Motion

That failure

to

Set

Aside.

undermines Claimant’s request for relief from the Discovery Order.
See In re Weiss, 111 F.3d 1159, 1172-73 (4th Cir. 1997) (explaining
that party’s denial of receipt of the district court’s briefing
letter failed “to rebut the presumption that she received the
briefing letter”); P.L.U.S. Brokerage, Inc., 908 F. Supp. 2d at 716
(determining

that

the

defendant’s

mere

assertion

that

“the

plaintiffs have not shown that the invoices were sent to [him]” did
not

qualify

as

the

presumption

of

(concluding

that

strong

delivery);
party’s

evidence
In

re

necessary

Ebersole,

assertion

of

453

to

rebut

B.R.

non-delivery

the

at

638

based

on

unreliable mail service did not rebut presumption of receipt); see
also FDIC v. Schaffer, 731 F.2d 1134, 1137-38 (4th Cir. 1984)
(concluding that even parties’ affidavits denying receipt failed to
rebut presumption of delivery of certified mail).

Accordingly,

Claimant’s bald denial of receipt of the Motion to Compel and
Discovery Order because of “sporadic mail” does not provide a
sufficient basis to disregard the presumption of receipt.
Further, even if Plaintiff’s unverified report of “sporadic
mail” could rebut the presumption of receipt, the Court should deny
the Motion to Set Aside because Claimant’s remaining arguments
provide no grounds for altering or amending the Discovery Order.
As

discussed

above,

Claimant

contends

that

he

responded

to

Plaintiff’s Interrogatories on September 29, 2015, and “objected to
the [I]nterrogatories [as] being overly broad and asserted his

10

Fifth Amendment privilege” (Docket Entry 22 at 4).

The Discovery

Order did not, however, require that Claimant respond to those
Interrogatories, but rather compelled “Claimant to respond to
Plaintiff’s [D]ocument [R]equests.”

(Text Order dated Nov. 17,

2015; see also Docket Entry 15 at 1 (Plaintiff conceding receipt of
responses to Interrogatories).)

Claimant has not alleged that he

responded to the Document Requests.

(See Docket Entry 22.)6

Moreover, to the extent Claimant now attempts to object to the
Document Requests as “overly broad” and/or to assert his Fifth
Amendment privilege against self-incrimination (see id. at 4, 10),
he waived both his objection and privilege as to the Document
Requests by not responding to the Document Requests as required by
the Rules.7

In particular, at all times relevant to Claimant’s

duty to respond to the Document Requests, Rule 34 provided that
“[t]he party to whom the [document] request is directed must
respond in writing within 30 days after being served,” and if the

6

Even if Plaintiff asserted his Fifth Amendment privilege in
response to the Interrogatories, that assertion would not satisfy
his duty to respond independently to the Document Requests. In
that regard, “[a] blanket invocation of the Fifth Amendment
privilege [against self-incrimination] is not permitted; it must
instead be asserted on a question-by-question basis so that the
propriety of invoking the privilege can be tested against specific
circumstances or questions.” Brock v. Gerace, 110 F.R.D. 58, 62
(D.N.J. 1986) (citing National Life Ins. Co. v. Hartford Accident
& Indem. Co., 615 F.2d 595, 599 (3d Cir. 1980)).
7

The United States Supreme Court has “never suggested that
procedural rules in ordinary civil litigation should be interpreted
so as to excuse mistakes by those who proceed without counsel.”
McNeil v. United States, 508 U.S. 106, 113 (1993).
11

party objects to the document request, the party must “state [his]
objection to the request, including the reasons.”

Fed. R. Civ. P.

34(b)(2)(A)-(B) (2015); see also Fed. R. Civ. P. 34(b)(2)(C) (2015)
(“An objection to part of a request must specify the part and
permit inspection of the rest.”).8

Objections not asserted in a

discovery response are deemed waived. Drexel Heritage Furnishings,
Inc. v. Furniture USA, Inc., 200 F.R.D. 255, 258 (M.D.N.C. 2001)
(“While [Rule] 34 does not explicitly provide for waiver when
objections are not stated, Rule 34(b), like Rule 33(b)(4), requires
the reasons for any objections to be explicitly stated. Therefore,
the [c]ourt finds the waiver to be an implicit one.” (internal
footnote omitted)).
Similarly, Rule 26 provides:
When a party withholds information otherwise discoverable
by claiming that the information is privileged . . ., the
party must:
(i) expressly make the claim; and
(ii)
describe
the
nature
of
the
documents,
communications, or tangible things not produced or
disclosed--and do so in a manner that, without revealing
information itself privileged or protected, will enable
other parties to assess the claim.

8

Rule 34 was amended effective December 1, 2015, but those
amendments would not affect the outcome of the Motion to Compel or
Motion to Set Aside. See Fed. R. Civ. P. 34(b)(2)(A)-(C) (2016).
12

Fed. R. Civ. P. 26(b)(5)(A).9
results in its waiver.

Failing to timely assert a privilege

Drexel Heritage Furnishings, Inc., 200

F.R.D. at 258; see also United States v. Ehrlich, Civ. Action No.
95-661, 1998 WL 372355, at *5 (E.D. Pa. May 28, 1998) (explaining
that the Fifth Amendment privilege “is not self-executing:

it can

be affirmatively waived or lost by not asserting it in a timely
fashion”);

Brock

v.

Gerace,

110

F.R.D.

58, 62

(D.N.J. 1986)

(acknowledging that when responding to discovery, a civil litigant
can lose his Fifth Amendment privilege against self-incrimination
“‘by not asserting it in a timely fashion’” (quoting Maness v.
Meyers, 419 U.S. 449, 466 (1975)).
Here, Claimant did not in any manner timely respond to the
Document Requests (e.g., provide the requested documents, object to
the scope, or assert his Fifth Amendment privilege). (Docket Entry
15 at 1-2.)10

Instead, Claimant sat idle for eight months and now

attempts to raise an objection and assert a privilege through his

9

In other words, “[t]o validly assert [a privilege], [a
party] must expressly state [the privilege] in response to the
particular discovery request involved and serve with the discovery
responses a [signed] privilege log . . . . Failure to timely serve
a duly signed privilege log meeting the requirements of Rule
26(b)(5)(A) shall be deemed a waiver of the protection otherwise
claimed.” Rhodes v. Ingram, No. 7:13-CV-192, 2015 WL 1038136, at
*4 (E.D.N.C. Mar. 10, 2015) (unpublished).
Claimant does not
allege that he provided a signed privilege log in response to
Plaintiff’s Document Requests. (See Docket Entry 22.)
10

Again, Claimant does not allege non-receipt of the Document
Requests (Docket Entry 15 at 23-29) or of Plaintiff’s two letters
requesting that Claimant respond to the Document Requests (id. at
38-39). (See Docket Entry 22.)
13

Motion to Set Aside.

(See Docket Entry 22 at 4, 10.)

That

approach cannot succeed because Claimant’s failure to timely raise
the objection and privilege resulted in their waiver.

Primrose v.

Castle Branch, Inc., No. 7:14-CV-235, 2016 WL 917318, at *3-*5
(E.D.N.C. Mar. 8, 2016) (unpublished) (explaining that an objection
or privilege not expressly asserted in response to a particular
production

request,

unless

excused,

results

in

its

waiver).11

Because Claimant has waived his objection and privilege by not
timely responding to Plaintiff’s Document Requests and offers no
other

grounds

to

alter

reconsideration

of

the

or

amend

Discovery

the

Order

Discovery
would

be

Order,
futile.

Accordingly, the Court should deny the Motion to Set Aside.
IV. CONCLUSION
Claimant’s conclusory contention that he did not receive the
Motion to Compel and Discovery Order falls well short of rebutting
the presumption of delivery; however, even if that allegation of
non-delivery

provided

sufficient

grounds

to

reconsider

the

Discovery Order, Claimant waived his objection to the scope of
discovery

and

his

Fifth

Amendment

11

privilege

by

not

timely

The Court may excuse waiver of a privilege upon a showing
of “good cause.” Drexel Heritage Furnishings, Inc., 200 F.R.D. at
259 (describing factors relevant to a good cause analysis). Here,
Claimant has not asserted that good cause exists to excuse his
failure to timely raise his Fifth Amendment privilege in a response
to Plaintiff’s Document Requests. (See Docket Entry 22.) On the
contrary, the record reveals that Claimant waived his Fifth
Amendment privilege by intentionally choosing not to respond in any
manner to the Document Requests.
14

responding

to

the

Document

Requests,

rendering

futile

any

reconsideration of the Discovery Order.
IT IS THEREFORE RECOMMENDED that Claimant’s Motion to Set
Aside (Docket Entry 22) be denied.

/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
April 22, 2016

15