United States of America v. Fifteen Thousand Eight Hundred Forty and 00/100 Dollars ($15,840.00) in United States Currency et al

Filing 22

REPORT AND RECOMMENDATIONS re 21 Second MOTION to Strike Answer of Matthew Hughes: The Magistrate Judge RECOMMENDS that Plaintiff's Second Motion to Strike be GRANTED and that Mr. Hughes' 9 Answer be STRICKEN from the record. Objections to R&R due within fourteen (14) days from the date of this Report. Signed by Magistrate Judge Elizabeth Preston Deavers on 11/15/2011. (er1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
Civil Action 2:11-cv-00219
Judge George C. Smith
Magistrate Judge E.A. Preston Deavers

v.

FIFTEEN THOUSAND EIGHT HUNDRED
FORTY AND 00/100 DOLLARS ($15,840.00)
IN UNITED STATES CURRENCY, et al.,
Defendants.
REPORT AND RECOMMENDATION
This matter is before the Court on Plaintiff’s Second Motion to Strike Answer of
Matthew Hughes Pursuant to Supplemental Rule G(8)(c). (ECF No. 21.) Mr. Hughes has not
responded to Plaintiff’s Motion. For the reasons that follow, it is RECOMMENDED that
Plaintiff’s Motion be GRANTED.
On September 30, 2011, the Court issued an Opinion and Order denying Plaintiff’s first
Motion to Strike and granting the Motion for Leave to File a Claim Instanter of Matthew
Hughes.1 At that time, the Court noted that there appeared to be deficiencies in Mr. Hughes’
Claim and granted Mr. Hughes seven days in which to amend either his Claim or Answer. The
Court cautioned Mr. Hughes that he must strictly comply with the Supplemental Rules for
Certain Admiralty and Maritime Claims. Mr. Hughes failed to amend either his Claim or
Answer. Plaintiff, thereafter, filed the instant Motion.
In order to have statutory standing to contest the government’s forfeiture action, a

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The Court’s prior order contained a more in depth account of the background of this
action, which the Court will not repeat at this time.

claimant must file a claim in compliance with the requirements of Rule G(5) of the Supplemental
Rules for Certain Admiralty and Maritime Claims. United States v. One Men's Rolex Pearl
Master Watch, 357 F. App’x 624, 627 (6th Cir. 2009). Pursuant to Supplemental Rule G(8), the
Court may strike a claim or answer “(A) for failing to comply with Rule G(5) or (6), or (B)
because the claimant lacks standing.” Accordingly, the Court may strike the Answer of a
claimant who fails to file a claim in compliance of Rule G(5). See United States v. Thirty-Five
Firearms, 123 F. App’x 204, 206 (6th Cir. 2005) (“When a claimant files an answer but has not
timely filed a verified claim, the court may strike the answer.”).
Supplemental Rule G(5) provides in pertinent part:
(5) Responsive Pleadings.
(a) Filing a Claim.
(i) A person who asserts an interest in the defendant property may
contest the forfeiture by filing a claim in the court where the action
is pending. The claim must:
(A) identify the specific property claimed;
(B) identify the claimant and state the claimant's interest in
the property;
(C) be signed by the claimant under penalty of perjury; and
(D) be served on the government attorney designated under
Rule G(4)(a)(ii)(C) or (b)(ii)(D).
Fed. R. Civ. P. Supp. R. G(5) (emphasis added).
In this case, Plaintiff’s June 10, 2011 fails to comply with the requirements of
Rule G(5). For example, Mr. Hughes failed to make his purported claim under penalty of
perjury and did not actually sign the document. See Fox v. Brown Memorial Home, Inc.,
2:09-CV-915, 2010 WL 4983153, at *1 (S.D. Ohio Dec. 2, 2010) (rejecting, pursuant to
this Court’s local rules, the electronic signature of a non-attorney in the context of a
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motion to strike). Although the Court granted Plaintiff leave to correct these
deficiencies, he chose not to act.
Because Plaintiff has failed to file a Claim complying with Rule G(5), he lacks
statutory standing in this case. Accordingly, pursuant to Rule G(8) it is
RECOMMENDED that Plaintiff's Second Motion to Strike be GRANTED (ECF No.
21), and that Mr. Hughes’ Answer (ECF No. 9) be STRICKEN from the record.
If any party seeks review by the District Judge of this Report and
Recommendation, that party may, within fourteen (14) days, file and serve on all parties
objections to the Report and Recommendation, specifically designating this Report and
Recommendation, and the part in question, as well as the basis for objection. 28 U.S.C. §
636(b)(1); Fed. R. Civ. P. 72(b). Response to objections must be filed within fourteen
(14) days after being served with a copy. Fed. R. Civ. P. 72(b).
The parties are specifically advised that the failure to object to the Report and
Recommendation will result in a waiver of the right to de novo review by the District
Judge and waiver of the right to appeal the judgment of the District Court. See, e.g.,
Pfahler v. Nat’l Latex Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that “failure
to object to the magistrate judge’s recommendations constituted a waiver of [the
defendant’s] ability to appeal the district court’s ruling”); United States v. Sullivan, 431
F.3d 976, 984 (6th Cir. 2005) (holding that defendant waived appeal of district court’s
denial of pretrial motion by failing to timely object to magistrate judge’s report and
recommendation). Even when timely objections are filed, appellate review of issues not
raised in those objections is waived. Robert v. Tesson, 507 F.3d 981, 994 (6th Cir. 2007)

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(“[A] general objection to a magistrate judge’s report, which fails to specify the issues of
contention, does not suffice to preserve an issue for appeal . . . .”) (citation omitted)).

Date: November 15, 2011

/s/ Elizabeth A. Preston Deavers
Elizabeth A. Preston Deavers
United States Magistrate Judge

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