United States of America v. $6,357.00 in United States Currency

Filing 17

ORDER denying without prejudice 12 Motion to Strike. Consistent with this Order, Sellarole shall have until October 19, 2011, to file an answer to the Complaint. The failure to file an answer with the Court by October 19, 2011, will result in the Court striking Sellaroles claim. Signed by Magistrate Judge Dennis Howell on 10/06/11. (Pro se litigant served by US Mail.)(emw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
1:11cv29
UNITED STATES OF AMERICA
Plaintiffs,
v.
$6,357.00 in United States Currency,
Defendant.
___________________________________ )

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ORDER

Pending before the Court is the Motion to Strike Claim and for Judgment on
the Pleadings [# 12] filed by the Government. This is an action in rem for the
forfeiture of $6357.00 in U.S. currency that was seized during a traffic stop of a
vehicle driven by Robert Sellarole. The Government contends that the seized
funds are proceeds traceable to transactions and exchanges for controlled
substances. The Government now moves to strike the claim of Claimant Robert
Sellarole. The Court DENIES without prejudice the Government’s motion
[# 12].
I.

Background

The Government filed the verified Complaint for Forfeiture on February 11,
2011. Subsequently, a warrant was issued for the arrest of the property at issue.
Pursuant to Rule G(4)(b) of the Supplement Rules for Admiralty or Maritime

Claims and Asset Forfeiture Actions, Federal Rules of Civil Procedure (the
“Supplemental Rules”), the Government provided notice of the action and a copy
of the Complaint to Sellarole. The Notice stated that Sellarole must file a verified
claim within thirty-five days of receipt of the notice and must file an answer with
the Court or a Rule 12 motion within twenty-one days after the verified claim. In
addition, the Government posted a Notice of Civil Forfeiture on the official
government internet site for at least thirty consecutive days, as required by Rule
G(4)(a) of the Supplemental Rules.
Sellarole then filed a claim with the Court, requested court-appointed
counsel, and moved for an extension of time to file an answer until he received
court-appointed legal counsel. The Court, however, denied without prejudice the
Motion to Appoint Counsel. (Order, May 17, 2011.) Sellarole then moved for
reconsideration of the Court’s Order, which the Court also denied. (Order, Jun. 21,
2011.) Sellarole did not obtain counsel and continued to proceed pro se.

The

Government then moved to Strike the Claim and for Judgment on the Pleadings.1
Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the Court
provided notice to Sellarole of the Government’s motion and directed him to file a

1

Although the Government moved for Judgment on the Pleadings, it failed to set forth
any argument in its brief as to why judgment on the pleadings pursuant to Rule 12(c) of the
Federal Rules of Civil Procedure is proper in this case. Going forward, the Court will strike any
motions that fail to set forth the legal and factual basis for the relief requested by the
Government.

response. In his Response in Opposition to the Motion to Strike, Sellarole
acknowledges his failure to file an answer but state’s that because of his pro se
status he did not understand what was required of him to answer the Complaint.
Sellarole, however, reiterates his claim to the seized currency. The Government’s
motion is now properly before the Court.
II.

Analysis

A claimant must serve and file an answer to the complaint or a Rule 12
motion within twenty days of filing a claim. Fed. Civ. P. Supp. R. G(5)(b). The
Supplemental Rules further provide that a claim may be stricken for failing to
comply with this Rule. Fed. Civ. P. Supp. R. G(8)(c)(i)(A). Although courts
strictly adhere to these requirements and will strike a claim if a claimant fails to
file a timely answer, see e.g., United States v. 40 Acres of Real Prop., 629 F. Supp.
2d 1264, 1273-74 (S.D. Ala. 2009); United States v. $27,601.00 in United States
Currency, No. 09-cv6281L, 2011 WL 3296170, at *1-2 (W.D.N.Y. Aug. 1, 2011),
in certain circumstances, especially in cases where the claimant is proceeding pro
se, a court may excuse minor procedural failings provided the underlying goals of
the Supplemental Rules are not frustrated, United States v. $22,226.25 in Interbank
FX Account No. XXX0172, 763 F. Supp. 2d 944, 947-48 (E.D. Tenn. 2011);
United States v. All Assets Held at Bank Julius Bear & Co., Ltd., 664 F. Supp. 2d
97, 101-02 (D.D.C. 2009).

In the interests of justice, the Court will allow Sellarole one last opportunity
to file an answer to the Complaint. Sellarole has filed several pleadings with the
Court and requested an extension of time for filing an answer; he has not sat idly
by while these proceedings progressed. Moreover, this case has not been pending
for an extended period of time and no other individuals have asserted a claim to the
funds. Finally, the Government will not suffer any prejudice from allowing
Sellarole leave to file an answer. Accordingly, the Court DENIES without
prejudice the Government’s motion [# 12]. Sellarole shall have until October 19,
2011, to file an answer to the Complaint.
The Court INSTRUCTS Sellarole to refer to Rule 8(b) of the Federal Rules
of Civil Procedure for guidance in drafting an answer to the Complaint.
Specifically, Sellarole’s Answer should contain separately numbered paragraphs
that correspond to the paragraphs in the Complaint. Pursuant to Rule 8(b),
Sellarole shall admit or deny the allegations contained in each numbered
paragraph. Sellarole shall sign the answer and file a copy with the Court. A copy
of the answer should also be sent to counsel for the Government, and Claimant
must certify that he has made such service in a “certificate of service” indicating
the manner in which such service was made. The Court INSTRUCTS Sellarole
that the failure to file the answer by October 19, 2011, will result in the Court
striking his claim pursuant to Fed. Civ. P. Supp. R. G(8)(c)(i)(A). The Court will

not grant Sellarole an extension of time for filing the answer.
III.

Conclusion

The Court DENIES without prejudice the Government’s motion [# 12].
Consistent with this Order, Sellarole shall have until October 19, 2011, to file an
answer to the Complaint. The failure to file an answer with the Court by October
19, 2011, will result in the Court striking Sellarole’s claim.

Signed: October 6, 2011