United States of America v. $29,410.00 in US Currency

Filing 31

ORDER granting 19 Motion for Entry of Default; denying 20 Motion to Set Aside Default; striking 21 Response to Application for Default; striking 22 Motion to Dismiss; denying 24 Motion to Exclude; denying 25 Motion for Reconsideration; striking re 23 Brief filed by Walter Kevin Moore, III ; striking 26 Motion for Order; denying as moot 29 Motion to Strike ; denying as moot 30 Motion to Strike. Signed by Honorable Timothy D. DeGiusti on 3/27/2014. (mb)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
UNITED STATES OF AMERICA,
Plaintiff,
v.
$29,410.00 IN THE UNITED STATES
CURRENCY, More or Less,
Defendant.

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Case No. CIV-13-132-D

ORDER
On February 4, 2014, this Court entered its Order [Doc. No. 18] striking the claim of
Claimant Walter Kevin Moore III, a/k/a Walter John Moore III (Claimant). Thereafter, Plaintiff
filed its Application for Entry of Default [Doc. No. 19] pursuant to Fed. R. Civ. P. 55(a).
Additionally, Claimant has filed multiple motions [Doc. Nos. 20, 22-26] in response to both the
Court’s Order and Plaintiff’s Application for Default. Plaintiff, in turn, has filed Motions to Strike
[Doc. Nos. 29- 30] as to certain motions filed by Claimant. These matters are fully briefed and
before the Court for consideration.
Discussion
This in rem civil forfeiture action arises out of a federal statute, 21 U.S.C. § 881(a)(6), and
is governed by the Supplemental Rules for Admiralty or Maritime Claims and Asset Forfeiture
Actions (the “Supplemental Rules”). When the Government brings a forfeiture action, it must file
a verified complaint and set forth allegations concerning the property and the factual and statutory
basis for its seizure. See Supp. R. G(2). The Government must also provide notice of the action to
anyone who reasonably appears to be a potential claimant. Supp. R. G(4). The Government filed

its verified complaint [Doc. No. 1] on February 5, 2013 and provided notice to Claimant [Doc. No.
5] on February 14, 2013.
To contest the forfeiture, a claimant must first file a claim within the time specified in the
Government’s notice. See Supp. R. G(5)(a). Within twenty-one days after filing a claim, the
claimant must file an answer. Supp. R. G(5)(b).
Claimant filed a Verified Proof of Claim [Doc. No. 7] on March 20, 2013.1 Claimant did not,
thereafter, file an answer. Additionally, Claimant did not respond to Plaintiff’s First Set of Special
Interrogatories. As a result, Plaintiff moved to strike Claimant’s Verified Proof of Claim pursuant
to Supp. R. G(8)(c) and the Court granted Plaintiff’s motion by Order entered on February 4, 2014
[Doc. No. 18]. Plaintiff has now filed an Application for Entry of Default [Doc. No. 19].
Claimant has filed multiple motions subsequent to the entry of the Court’s February 4, 2014
Order. Claimant asks the Court to reconsider its order striking his verified proof of claim and
opposes Plaintiff’s application for entry of default. Claimant has also filed various other motions
addressed to the merits of the forfeiture itself. Each of the pending matters before the Court are
addressed in turn below.
I.

Claimant’s Motion to Reconsider

In support of his Motion for Reconsideration [Doc. No. 25] Claimant alleges that “intricate
procedural law relating to forfeiture actions” and “uncertainty” in the law as to vehicular searches
impaired his ability to timely respond. He further claims, he did not receive notice from Plaintiff
“detailing his responsibility to file an Answer.” Additionally, he claims a government shutdown

1
At the time Claimant filed his claim, he appeared pro se. However, on June 10, 2013, counsel entered an
appearance on behalf of Claimant [Doc. No. 11].

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“hampered progress in this case” as did the “late involvement” of his counsel which was due, in part,
to his inability to afford counsel as a result of the seizure of his funds.
A motion to reconsider is not recognized under the Federal Rules of Civil Procedure. Van
Skiver v. United States, 952 F.2d 1241, 1243 (10th Cir.1991). And, whether to reconsider a nonfinal order is subject to the court’s “general discretionary authority.” Trujillo v. Board of Educ. of
the Albuquerque Public Schools, 212 Fed. Appx. 760, 765 (10th Cir.2007). A motion to reconsider
is inappropriate where it reargues an issue previously addressed or advances arguments that could
have been raised in prior briefing. Servants of Paraclete v. Does, 204 F.3d 1005, 1012 (10th
Cir.2000). Instead, only where the court has “misapprehended the facts, a party’s position, or the
controlling law” is a motion for reconsideration proper. Id.
Claimant fails to show grounds for reconsideration. He makes no showing that the Court has
misapprehended the facts, the parties’ positions or any applicable law. Instead, Claimant offers
purported reasons why he did not timely file an answer. But none of the arguments made or the
alleged facts stated in support were unavailable to Claimant prior to the Court’s entry of the order
striking his verified claim. Moreover, the reasons offered by Claimant for not acting with diligence
in getting his answer on file or responding to the interrogatories are belied by the record, conclusory,
or otherwise without merit. Therefore, Claimant’s Motion for Reconsideration [Doc. No. 25] is
DENIED.
II.

Plaintiff’s Application for Entry of Default and Claimant’s Opposition to Entry
of Default Judgment

Plaintiff has filed an Application for Entry of Default [Doc. No. 19] pursuant to Fed. R. Civ.
P. 55(a) which mandates entry of default by the clerk “[w]hen a party against whom a judgment for

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affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by
affidavit or otherwise[.]” Plaintiff has accompanied its application with the requisite affidavit.
The Supplemental Rules do not include any provisions relating to default and default
judgments in forfeiture actions. However, Supplemental Rule A(2) provides that the Federal Rules
of Civil Procedure apply “except to the extent that they are inconsistent with these Supplemental
Rules.” Supp. R. A(2).
Federal Rule of Civil Procedure 55(a) authorizes the entry of default against a party who has
failed to plead or otherwise defend. As set forth, this Court entered an order striking Claimant’s
Verified Claim because Claimant did not thereafter timely file an answer and failed to respond to
special interrogatories. No other claimants have timely filed a claim or an answer.
Accordingly, the Court GRANTS Plaintiff’s Application [Doc. No. 19] and directs the Clerk
of the Court to enter a default pursuant to Fed. R. Civ. P. 55(a). Because Rule 55 requires entry of
a default by the Clerk before a default judgment may be entered, Claimant’s objection to entry of
a default judgment is premature. See, e.g., Johnson v. Dayton Elec. Mfg. Co., 140 F.3d 781, 783 (8th
Cir. 1998) (“[E]ntry of default under Rule 55(a) must precede grant of a default judgment under
Rule 55(b).”). The Court therefore DENIES Claimant’s Opposition to Plaintiff’s Application for
Default [Doc. No. 20].
III.

Claimant’s Additional Motions
A.

Claimant’s Motion to Dismiss

Claimant has filed a Motion to Dismiss and Brief in Support [Doc. Nos. 22-23] pursuant to
Supp. R. G(8)(b). He challenges the legality of the forfeiture of currency at issue in this case.
Claimant contends the forfeiture resulted from an unlawful search and seizure.

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Pursuant to Supp. R. G(5)(b), if a claimant chooses to file a motion to dismiss, the motion
must be filed within twenty-one days of filing a claim. As set forth, Claimant neither answered nor
filed a motion to dismiss within the requisite time period under the Supplemental Rules and the
Court granted Plaintiff’s motion to strike as a result.2 To the extent Claimant’s motion to dismiss
could be construed as a supplemental motion in response to Plaintiff’s motion to strike, Claimant
did not seek leave of Court to file a supplemental brief. See LcvR 7.1(I). Claimant’s Motion to
Dismiss and Brief in Support [Doc. Nos. 22-23] are therefore STRICKEN.3 Plaintiff’s Motion to
Strike Claimant’s Brief in Support [Doc. No. 29] is denied as MOOT.
B.

Claimant’s Motion to Suppress

Claimant has also filed a Motion to Suppress [Doc. No. 24] and seeks suppression of the
currency seized on grounds the seizure was unlawful. Claimant lacks statutory standing to bring the
motion.
It is well-established that a forfeiture claimant must meet both Article III and statutory
standing to contest a forfeiture. See, e.g., United States v. $8,221,877.16 in U.S. Currency, 330 F.3d
141, 150 n. 9 (3d Cir. 2003) (“A forfeiture claimant must meet both Article III and statutory standing
requirements before it may stand before a court to contest a forfeiture.”); United States v. One 1985
Cadillac Seville, 866 F.2d 1142, 1148 (9th Cir.1989)(“We require proper standing to contest a
forfeiture both as a statutory matter and as an Article III and prudential requirement.”); United States
v. $515,060.42 in U.S. Currency, 152 F.3d 491, 497 (6th Cir.1998) (“In order to contest a

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Pursuant to Supp. R. G(8)(c)(ii)(A), a motion to strike must be decided “before any motion by the claimant
to dismiss the action.”
3
As set forth infra, even if the Court did not strike Claimant’s motion to dismiss, he lacks statutory standing to
raise the issues set forth therein.

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governmental forfeiture action, claimants must have statutory standing through compliance with [the
Supplemental Rules], as well as the Article III standing required for any action brought in federal
court.”).
Statutory standing requires that a claimant strictly comply with the procedural requirements
of the Supplemental Rules. See, e.g., United States v. $487, 825.00 in U.S. Currency, 484 F.3d 662,
664 (3d Cir. 2007) (“To establish statutory standing in a forfeiture case, the claimant must comply
with the procedural requirements set forth [in the Supplemental Rules].”); United States v.
Commodity Account No. 549 54930 at Saul Stone & Co., 219 F.3d 595, 598 (7th Cir.2000) (even
though claimant argued that his unverified claim obviated need for answer, “it was proper for the
district court to insist upon a timely answer” because strict compliance with standing aspects of
Supplemental Rules is typically required); United States v. Cambio Exacto, S.A., 166 F.3d 522, 526
(2d Cir. 1999) (claimant who fails to meet specified time deadlines in Supplemental Rules lacks
statutory standing); United States v. Ford 250 Pickup 1990 VIN No. 1FTHX26M1LKA69552, 980
F.2d 1242, 1245 (8th Cir. 1992) (“requirement that both a claim and an answer be filed is plain and
unambiguous . . . [and] [s]trict compliance with the rule requires both a claim and an answer”)
(citations omitted); United States v. $19,840.00 in U.S. Currency More or Less, 552 F.Supp.2d 632,
636 (W.D.Tex.2008) (“In order to defend against a forfeiture, a claimant must timely file both a
claim and an answer.”); United States v. 328 Pounds More or Less, of Wild American Ginseng, 347
F.Supp.2d 241, 249 (W.D.N.C.2004) (dismissing claim where claimant failed to comply with
Supplemental Rules requirements, including filing of an answer).
As set forth, Claimant has failed to comply with the requirements of the Supplemental Rules
by not timely filing an answer or responding to special interrogatories and his claim has been

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stricken as a result. Therefore, Claimant lacks statutory standing to contest forfeiture. See, e.g.,
United States v. $12,126.00 in United States Currency, 337 Fed. Appx. 818, 819 (11th Cir. 2009)
(claimants must strictly adhere to Supplemental Rules to have statutory standing; district court did
not abuse its discretion in striking claim and denying motion to reconsider due to claimant’s lack
of statutory standing resulting from failure to file answer); United States v. $138,381.00 in U.S.
Currency, 240 F.Supp.2d 220, 229-30 (E.D. N.Y. 2003) (where claimant failed to file a timely
verified answer and never requested an extension of time within which to do so, she lacked statutory
standing to contest forfeiture).
Claimant has not set forth sufficient facts demonstrating any reason for this Court to excuse
strict compliance with the Supplemental Rules. Consequently, Claimant does not have statutory
standing and his Motion to Suppress [Doc. No. 24] is DENIED.
C.

Claimant’s Duplicative Motions

The Court strikes Claimant’s Motion to Suppress [Doc. No. 26] filed on February 18, 2014,
as duplicative of the Motion to Suppress [Doc. No. 24] filed on February 17, 2014. The Court
further strikes Claimant’s Opposition to Plaintiff’s Application for Default [Doc. No. 21] filed on
February 12, 2014 as duplicative of Claimant’s Opposition to Plaintiff’s Application for Default
[Doc. No. 20] filed on February 10, 2014. The Court denies as moot Plaintiff’s Motion to Strike
[Doc. No. 30].
IV.

Conclusion

Based on the foregoing, it is ORDERED as follows:
1.

Claimant’s Motion for Reconsideration [Doc. No. 25] is DENIED;

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2.

Plaintiff’s Application for Entry of Default [Doc. No. 19] is GRANTED and the
Court of Clerk is directed to enter default;

3.

Claimant’s Opposition to Application of Plaintiff for Entry of Default [Doc. No. 20]
is DENIED;

4.

Claimant’s Motion to Dismiss and Brief in Support [Doc. Nos. 22-23] are
STRICKEN;

5.

Plaintiff’s Motion to Strike Claimant’s Brief in Support of Motion to Dismiss [Doc.
No. 29] is DENIED as moot;

6.

Claimant’s Motion to Suppress [Doc. No. 24] is DENIED;

7.

Claimant’s Motion to Suppress [Doc. No. 26] and Claimant’s Opposition to
Plaintiff’s Application for Default [Doc. No. 21] are STRICKEN; and

8.

Plaintiff’s Motion to Strike Claimant’s Motions to Suppress [Doc. No. 30] is
DENIED as moot.

IT IS SO ORDERED this 27th day of March, 2014.

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