United States of America v. $77,090.00 United States Currency

Filing 41

MEMORANDUM OPINION OF THE COURT. Signed by District Judge Waverly D. Crenshaw, Jr on 1/31/2017. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(eh)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
v.
$77,090.00 UNITED STATES
CURRENCY,
Defendant.
TROY TOMPKINS and CHERIE
BANKS,
Claimants.

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NO. 3:14-cv-01290
JUDGE CRENSHAW

MEMORANDUM OPINION
The United States has filed a Verified Complaint In Rem against $77,090 in currency seized
at Nashville International Airport in January of 2014. (Doc. No. 1.) Troy Tompkins and Cherie
Banks (collectively, “Claimants”) have filed Verified Claims to portions of the funds. (Doc. No.
7; Doc. No. 8.) The United States filed a Motion to Strike Claimants’ Claims (Doc. No. 12), a
Motion for Default Judgment against all persons other than Claimants (Doc. No. 18), and a Motion
for a Protective Order to Stay Government Response to Interrogatories and Request for Documents
pending the resolution of its other pending motions (Doc. No. 20). Claimants have filed a Motion
to Dismiss for Lack of Prosecution. (Doc. No. 23.) For the reasons discussed herein, the
government’s Motion to Strike Claimants’ Claims is DENIED, its Motion for Default Judgment
against all other persons is GRANTED, its Motion for a Protective Order is DENIED, and
Claimants’ Motion to Dismiss is DENIED. The Court will refer this matter to Magistrate Judge
Alistair Newbern for the purpose of overseeing discovery and discovery-related disputes.
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I. BACKGROUND
The United States relies on the affidavit of Matthew J. Moore, a task force officer (“TFO”)
with the United States Drug Enforcement Administration (“DEA”), to allege the facts surrounding
the seizure of the funds at issue in this case. (Doc. No. 3.) According to TFO Moore, at
approximately 11:00 AM on January 19, 2014, an explosive detection system at the Nashville
International Airport alerted Transportation Security Administration (“TSA”) personnel to a piece
of luggage that had been checked for transportation to San Francisco, California. (Id. at ¶¶ 15,
22.) A tag identified the luggage as belonging to Claimant Tompkins. (Id. at ¶¶ 15–16.) Inside
the luggage, the TSA found a brown mailing envelope and a white box, each of which held a
vacuum sealed plastic bag containing currency bundled with plastic bands. (Id. at ¶¶ 17–18.) The
envelope was addressed to Tompkins’ girlfriend and fellow Claimant Banks at an address in
Newberg, Oregon. (Id. at ¶ 19.) The box was addressed to Bradley Mejarg at an address in
Junction City, Oregon. (Id. at ¶ 20.) Tompkins allegedly told law enforcement that the packages
contained about $70,000, $50,000 of which was given to him by his mother and $20,000 of which
represented profit from buying and selling cars and property. (Id. at ¶ 23.) When counted, the
currency amounted to $77,090, mostly in twenty dollar bills. (Id. at ¶ 32.)
According to TFO Moore, investigators detected an obvious odor of marijuana from some
portion of the seized materials, and a trained canine identified the currency as having the odor of
narcotics. (Id. at ¶¶ 24–27.) TFO Moore further states that Tompkins’ stepfather Ted Lang
“advised that . . . Tompkins told him he was a money courier.” (Id. at ¶ 33.) Tompkins was also
involved in an earlier forfeiture of funds in December of 2012, when $169,271 of currency was
seized from him during a traffic stop in Kansas involving a car allegedly belonging to Banks. (Id.
at ¶¶ 7–12.)

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To explain the source of the funds at issue in this case, Tompkins provided law enforcement
with a five-page letter to him from his mother, Angel Tompkins, dated March 11, 2013, discussing
a wide range of topics, including their respective dental work, the quality of Ms. Tompkins’ recent
bus ride, and events of Tompkins’ childhood that were emotionally challenging for Ms. Tompkins,
Claimant Tompkins, or both. (Doc No. 3-1.) Relevant to this case, Tompkins’ mother also
describes a gift of $59,800 dollars from her to Tompkins, made from funds she accumulated by
saving $25 per week from mid-1968 through March 2013. The letter says that Tompkins’ mother
is giving Tompkins the money as “my appreciation for who you have become and chosen to grow
up to be.” (Id. at 4.) She discusses the possibility of Tompkins’ investing the money in real estate:
“I know you want to look at trailer parks or land[.] I would prefer horse property with land to
grow special crops like vegetables, salad and herbs, baby squash or [edible] flowers[,] with great
water rights and good open sunny plots.”

(Id.)

The letter appears to be notarized by a

commissioned California notary public. (Id. at 5.)
On February 26, 2014, each Claimant filed an administrative claim with the DEA related
to the funds. Tompkins claimed an ownership and possessory interest in the entirety of the seized
funds (Doc. No. 13-6), and Banks claimed an ownership and possessory interest in $10,000 (Doc.
No. 13-7). On June 12, 2014, the United States filed its Complaint. (Doc. No. 1.) On August 1,
2014, Claimants filed separate claims in this Court opposing forfeiture. (Doc. No. 7; Doc. No. 8.)
Tompkins’ claim revises his earlier assertion of ownership of the full amount, instead asserting a
possessory interest over all of the funds but an ownership interest in only $67,090, with the
remainder belonging to Banks. (Doc. No. 7 at 1.) Banks’ claim similarly asserts a possessory
interest in all of the funds, but asserts ownership of just $10,000, with the rest belonging to
Tompkins. (Doc. No. 8 at 1.)

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The United States served claimants with special interrogatories related to the matter on
November 7, 2014. Tompkins received twenty-seven interrogatories, seeking a wide array of
information about his assets, sources of income, and associations, as well as the events surrounding
the seizure. (Doc. No. 13-5 at 2–20.) A number of the interrogatories demanded that Tompkins
both “IDENTIFY and DOCUMENT” the requested information. (E.g., id. at 3, 5, 7.) Banks
received twenty-one interrogatories, generally requesting similar information. (Doc. No. 13-4 at
2–16.) Tompkins and Banks individually responded to the interrogatories on or around December
18, 2014. (Id. at 16; Doc No. 13-5 at 22.) While each provided some responsive details, they
declined to produce the majority of the information requested, instead raising a number of
objections, including the following: (1) the interrogatories improperly sought production of
documents, which is not authorized by Rule G(6) (Doc. No. 13-5 at 3); (2) the subject matter of
the interrogatories exceeded the scope of Rule G(6)(a) (Id. at 4); (3) some information sought was
beyond the scope of permissible discovery because it was not relevant, admissible, or calculated
to lead to admissible evidence (Id. at 5); (4) some interrogatories reflected an improper purpose
and/or were unduly duplicative (Id. at 7); and (5) some interrogatories were overbroad,
burdensome, and oppressive (Id. at 8).
According to Claimants’ counsel, they heard nothing more from the United States about
the objections until on or around July 1, 2015, when he contacted counsel for the United States on
Claimants’ behalf to inquire about the status of their claims. (Doc. No. 24 at 3; Doc. No. 24-1 at
1.) An additional month and a half later, the United States sent Claimants letters, dated August
18, 2015, taking issue with Claimants’ interrogatory responses. Each letter alleged that the
respective Claimant’s response did “not appear to be a good faith answer” to the special
interrogatories and warned that the Claimant’s allegedly inadequate response “could be the basis

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for a motion to dismiss after a hearing for lack of standing.” (Doc. No. 13-8 at 1; Doc. No. 13-9
at 1.)
On November 17, 2015, the United States filed it motion asking the court to strike
Claimants’ claims due to their lack of constitutional or statutory standing (Doc. No. 12), and on
February 24, 2016, it filed its motion for default judgment with regard to all nonclaimants (Doc.
No. 18). In the meantime, Claimants served the United States with their own interrogatories, and
the United States moved for a protective order staying its response. (Doc. No. 20.) On March 25,
2016, Claimants filed a motion seeking dismissal of the government’s case based on its violation
of their due process rights arising out of the government’s failure to expeditiously bring the matter
to trial. (Doc. No. 23.)
II. MOTION FOR DEFAULT JUDGMENT
The United States asks the Court to enter a judgment extinguishing all interest, right, liens
or title of any persons other than Claimants in the funds at issue pursuant to Rule 55(b)(2) of the
Federal Rules of Civil Procedure. The government in particular identifies Angel Tompkins and
Bradley Meharg a/k/a Bradley Mejarg as persons to be covered by the judgment. Neither Angel
Tompkins, Bradley Meharg, nor any other third party has come forward to challenge the
government’s motion.
“A judgment of forfeiture may be entered only if the government has published notice of
the action within a reasonable time after filing the complaint or at a time the court orders.” Supp.
R. G(4)(a)(i), Fed. R. Civ. P. For property located within the United States, publication should be
made either “in a newspaper generally circulated in the district where the action is filed, where the
property was seized, or where property that was not seized is located” or “on an official internet
government forfeiture site for at least 30 consecutive days.” Supp. R. G(4)(a)(iv)(A), (C), Fed. R.

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Civ. P. The government is also required to provide direct notice of the complaint “to any person
who reasonably appears to be a potential claimant on the facts known to the government.” Supp.
R. G(4)(b)(i), Fed. R. Civ. P. Absent good cause to the contrary, a potential claimant who received
direct notice must file his claim before the deadline established in the notice provided; if a potential
claimant did not receive direct notice but notice was published on a government forfeiture website,
he must file his claim no later than sixty days after the first publication. Supp. R. G(5)(a)(ii), Fed.
R. Civ. P.
Bradley Mejarg was sent direct notice of these proceedings on June 27, 2014, and informed
that he should file any claim within thirty-five days. (Doc. No. 16 at 2.) Notice of the action was
also published to www.forfeiture.gov, where it remained published for at least thirty days
beginning on June 18, 2014. (Id. at 3.) Because the time for any party to file a timely claim has
long expired, the United States’ motion for default judgment as to all persons other than Claimants
will be granted.
III. MOTION TO STRIKE
The United States argues that the Court should strike Tompkins’ and Banks’ claims
because (1) they have not established adequate ownership, possessory, or security interests in the
funds to provide standing to challenge the forfeiture under Article III of the Constitution; and (2)
their inadequate responses to the interrogatories violate the Supplemental Rules governing
forfeiture, depriving them of statutory standing.

A. Standard of Review

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“In order to contest a governmental forfeiture action, [the] claimant[ ] must have statutory
standing through compliance with [the Supplemental Rules for Admiralty or Maritime Claims and
Asset Forfeiture Actions], as well as the Article III standing required for any action brought in
federal court.” United States v. $677,660.00 in U.S. Currency, 513 F. App’x 531, 532 (6th Cir.
2013) (quoting United States v. $515,060.42 in U.S. Currency, 152 F.3d 491, 497 (6th Cir. 1998)).
“Standing to assert a claim is a threshold issue . . . , and it is claimant’s burden to establish that she
has both statutory and Article III standing to contest the forfeiture.” United States v. $25,982.28
in U.S. Currency, No. 5:14 CV 150, 2015 WL 410590, at *2 (N.D. Ohio Jan. 29, 2015)
(citing United States v. Four Thousand Two Hundred Seventy–Eight Dollars, No. 12-10253, 2014
WL 3420774, at *3 (E.D. Mich. July 14, 2014)).
B. Constitutional Standing
If a plaintiff does not have constitutional standing to bring a claim, then a federal court is
truly without power to rule on the issues presented. See Valley Forge Christian Coll. v. Am. United
for Separation of Church and State, Inc., 454 U.S. 464, 475–76 (1982) (“[O]f one thing we may
be sure: Those who do not possess Art. III standing may not litigate as suitors in the courts of the
United States.”). The constitutional standing requirement arises out of the limitation of the courts’
power to “cases and controversies” by Article III of the United States Constitution. Lujan v.
Defenders of Wildlife, 504 U.S. 555, 559–61 (1992). In order to have standing: (1) the plaintiff
or claimant must have suffered an “injury in fact” that is concrete and particularized and actual or
imminent, not conjectural or hypothetical; (2) there must be a causal connection between the injury
and the conduct complained of; and (3) it must be likely that the injury will be redressed by a
favorable decision. Id.

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In the context of a claim in an in rem forfeiture proceeding, the standing requirement means
that “a claimant must have a colorable ownership, possessory or security interest in at least a
portion of the defendant property.” $677,660.00, 513 F. App’x at 532 (citing $515,060.42, 152
F.3d at 497). “Colorable” is generally defined as “appearing to be true, valid, or right.” Colorable,
Black’s Law Dictionary (10th ed. 2014). In another context, “colorable” has been described as a
“low threshold” that does not require the party asserting the colorable argument to prove that he
will ultimately prevail. Green v. Fornario, 486 F.3d 100, 107 (3d Cir. 2007). By the same
principle, “[a] claimant need not prove the merits of his underlying claim,” but only “‘a facially
colorable interest . . .’ to satisfy the requirements of standing.” United States v. Salti, 579 F.3d
656, 667 (6th Cir. 2009) (quoting $515,060.42, 152 F.3d at 497–98).
Nevertheless, courts have developed some safeguards particular to the unique problems
associated with standing to challenge the civil forfeiture of property alleged to be linked to criminal
activities. “‘[D]ue to concerns about straw man transfers’ from criminals to third parties who lack
any legal interest, ‘naked possession’ claims are insufficient to establish standing.” $677,660.00,
513 F. App’x at 532 (quoting $515,060.42, 152 F.3d at 498). Rather, the person in possession of
the funds must offer “some explanation or contextual information regarding the claimant’s
relationship to the seized property.” Id. (quoting $515,060.42, 152 F.3d at 497–98).
The United States argues that Claimants lack standing because they have not established a
colorable claim that Tompkins possessed the funds as anything other than a money courier for
unidentified true owners. Presumably in recognition of the fact that Tompkins has, in fact,
provided some contextual information regarding his possession of the funds, the government relies
on what it refers to as a prima facie case that he was instead a courier. The government premises
its claimed prima facie case that Tompkins is a mere courier on the following: (1) the vague,

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unelaborated hearsay statement of his stepfather to that effect, as recounted by TFO Moore; (2)
Tompkins’ involvement in the earlier forfeiture; (3) his “changing story” about whether $10,000
of the funds belonged to Banks; (4) his initial statement that the funds amounted to about $70,000,
when in fact they were $77,090; (5) his lack of knowledge about how much currency was in each
package; and (6) the letter from his mother, which the government characterizes as “rambling” and
“preposterous.” (Doc. No. 13 at 20.)
A single hearsay statement from a family member presenting no foundation, explanation,
or details, recounted by law enforcement, is not sufficient to establish that Tompkins was a courier,
let alone was acting as a courier in this particular instance. What remains is the government’s
circumstantial case. At most, however, Tompkins’ involvement in an earlier seizure of funds
suggests that he may have been historically involved in or associated with the drug trade. It says
nothing about whether he is a courier or whether, in contrast, he may have been, for example, a
passive companion or unwitting dupe in whatever transactions were at issue. Similarly, although
his underestimating the amount of money in his possession could be seen as consistent with him
serving as a courier, it also could be the result of mere inattentiveness on the part of someone
dealing with a large amount of cash.
The confusion about whether Tompkins had an ownership interest in the $10,000
ultimately attributed to Banks can similarly be explained by poor accounting. Banks herself says
that she gave Tompkins $10,000 she received from an insurance payout for him to invest. (Doc.
No. 13-4 at 10.) That Tompkins was temporarily mistaken about what cash was his may not reflect
well on him as an investment partner, but falls far short of establishing or even significantly
suggesting that he was a courier—particularly in light of the Claimants’ alleged romantic
relationship, which might explain a certain degree of informality with regard to their pooled

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finances. The strange manner in which the funds were physically divided is perhaps more
obviously suspicious of courier activity, but again, all Tompkins and Banks must do is establish a
facially colorable claim. The government will have ample opportunity to press this argument on
the merits, should the case proceed.
The government’s reliance on the letter from Tompkins’ mother is especially puzzling. On
its face, the letter provides an innocent explanation for Tompkins’ possession of the funds and
would seem, if anything, to support his claim of standing. By the government’s reasoning, though,
the very fact that Tompkins has provided documentation of a licit reason for possession of a large
amount of cash is evidence that the possession was illicit: who, the government asks, bothers to
possess evidence that he is not a criminal courier, but a criminal courier? This is the very definition
of a catch-22. 1 While the government is free to make such an argument in support of the forfeiture,
its logic is not so inexorable that it deprives Tompkins of even a facially colorable claim.
As to the contents of the letter, the premise that a mother would save a small amount of
money weekly over many years, then give it to her adult son, does not strike the Court as so facially
preposterous that it can be dismissed out of hand. It is moreover lost on the Court what significance
there could be to the fact that the government considers the letter “rambling”—a term it sees fit to
use twice. (Doc. No. 13 at 4, 20.) The government’s aesthetic objections aside, a loose and
informal style would seem, if anything, consistent with the veracity of the letter. Finally, and
perhaps most importantly, the government’s argument here suffers from the same flaw as its
reliance on the prior forfeiture: the United States has conflated having forfeitable cash with being

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See Stuard v. Stewart, 401 F.3d 1064, 1068 n.8 (9th Cir. 2005) (explaining that “Catch-22” first
referred to the fictional policy, in the novel of the same name, whereby a pilot’s request to be
grounded was taken as proof that he was not entitled to be grounded).
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a courier, when both history and common sense dictate against such a leap. Even if the United
States is correct and Tompkins obtained the letter from his mother to defeat a potential future
forfeiture, that says nothing about whether he was concerned about the forfeiture of his funds or
someone else’s.
Based on the materials before the Court, Tompkins has established a colorable claim that
the funds were his and Banks’s. Further evidence and fact-finding could, of course, undermine
that colorable claim, and the Court’s ruling in no way prevents the government from continuing to
argue that Tompkins was a money courier. At this stage, however, Tompkins’ possession of the
funds, his proffered explanation for where they came from, and the lack of any detailed, admissible
direct evidence suggesting that Tompkins was specifically a courier—as opposed to being merely
generically associated with criminal activity—are sufficient to make his and Tompkins’ claims
constitutionally permissible for the Court to consider. The Motion to Strike will therefore be
denied with regard to constitutional standing.
C. Statutory Standing
Pursuant to 21 U.S.C. § 881(a)(6), the United States has the authority to initiate in rem civil
forfeiture proceedings against “[a]ll moneys . . . or other things of value furnished or intended to
be furnished by any person in exchange for a controlled substance . . . , all proceeds traceable to
such an exchange, and all moneys . . . intended to be used to facilitate any violation” of the
Controlled Substances Act. Once in rem proceedings are initiated, “any person claiming an
interest in the seized property may file a claim asserting such person’s interest in the property in
the manner set forth in the Supplemental Rules for Certain Admiralty and Maritime Claims.” 18
U.S.C. § 983(a)(4)(A). To sustain such a claim, however, the claimant must show that he has what
has come to be referred to as “statutory standing,” which is premised on his compliance with those

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Supplemental Rules. See, e.g., United States v. $5,730.00 in U.S. Currency, 109 F. App’x 712,
713 (6th Cir. 2004) (“Statutory standing is achieved by strictly complying with Federal Rule of
Civil Procedure Supplemental Rule for Certain Admiralty and Maritime Claims C(6) . . .
.”); $515,060.42, 152 F.3d at 497 (“In order to contest a governmental forfeiture action, claimants
must have statutory standing through compliance with Supp. Admiralty and Maritime Claims R.
C(6) . . . .”); United States v. Currency $267,961.07, 916 F.2d 1104, 1108 (6th Cir. 1990)
(“[C]laimant’s failure to strictly adhere to Supplemental Rule C(6) precludes the requisite statutory
standing to contest a government forfeiture action.”); United States v. 2006 Dodge Charger SRT8, No. 3:09-CV-518, 2011 WL 2601028, at *1 (E.D. Tenn. June 30, 2011) (“Statutory standing is
established through strict compliance with Supplemental Rules G(5) and G(6).” (quoting United
States v. Vehicle 2007 Mack 600 Dump Truck, VIN 1M2K189C77M936428, 680 F. Supp. 2d
816, 822 (E.D. Mich. 2010)).
Among the rules with which a claimant must comply is Supplemental Rule G(6)(a), which
permits the United States to “serve special interrogatories limited to the claimant’s identity and
relationship to the defendant property without the court’s leave at any time after the claim is filed
and before discovery is closed.” See Supp. R. G(8)(c)(i)(A), Fed. R. Civ. P. (providing that the
government may move to strike a claim for failure to comply with Rule G(6)). The claimant must
provide “[a]nswers or objections to these interrogatories” within twenty-one days after he was
served. Supp. R. G(6)(b), Fed. R. Civ. P. The United States argues that the Claimants failed to
make a good faith effort to comply with this rule, and that in so doing they have deprived
themselves of statutory standing to assert their claims to the contested funds.
Claimants argue first that the Sixth Circuit’s statutory standing jurisprudence has been
effectively overruled by Lexmark Int’l, Inc. v. Static Control Components, Inc., 134 S. Ct. 1377,

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1386–88 (2014). In Lexmark, the Supreme Court observed that several doctrines that have come
to be discussed under the rubrics of either “prudential” or “statutory” standing are not ultimately
doctrines of standing at all, but rather, if anything, substantive limitations on the relevant causes
of action. Id. at 1387 n.3 & n.4. As the Court observed, the requirement of standing is a limitation
on the federal courts’ “power to adjudicate [a] case.” Id. at 1387 n.4. Many so-called “prudential
standing” or “statutory standing” inquiries, on the other hand, are not concerned with the limits of
the court’s power, but whether Congress has authorized a particular plaintiff to bring the claim at
issue. Id. at 1387–88; see Galaria v. Nationwide Mut. Ins. Co., No. 15-3386, 2016 WL 4728027,
at *5 (6th Cir. Sept. 12, 2016) (“If a plaintiff lacks statutory standing—in other words, does not
have a cause of action—the proper course is to dismiss for failure to state a claim.”). For example,
an individual outside the “zone of interests” of a regulation cannot file suit challenging that
regulation under the Administrative Procedures Act (“APA”), but that bar—despite historically
having been considered one of “prudential standing”—has nothing to do with the Court’s power,
but merely whom Congress has granted a cause of action under the APA and whom it has
not. Lexmark, 134 S.Ct. at 1387–89.
Consistently with the Lexmark critique, none of the statutory standing cases relied upon by
the United States appear to be truly concerned with the Court’s power to adjudicate a case,
rendering the term “standing” perhaps inapposite or at least potentially confusing. The Court is
not persuaded, though, that Lexmark sweeps away all of the existing Sixth Circuit precedents
establishing that a claimant may forfeit his claim for noncompliance with the Supplemental Rules.
The point of Lexmark’s critique is not that all of the doctrines that have come to be known as
presenting “prudential” or “statutory” standing rules are improper and should be forgotten. See In
re City of Detroit, Michigan, 838 F.3d 792, 800 (6th Cir. 2016) (declining to read Lexmark as

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abolishing the doctrine of equitable mootness).

Rather, Lexmark reminds the courts that,

misnomers aside, statutory and prudential standing doctrines should not be confused with the
jurisdictional limitations associated with a true lack of standing.
The case law of the Sixth Circuit, then, is still that—regardless of what term one wants to
use for the rule—a failure to comply with the Supplemental Rules can cost a claimant his statutory
right to challenge a forfeiture. Even that case law, however, recognizes flexibility in how the Court
should apply such a bar, at least where noncompliance can be rectified through the ordinary course
of litigation. In United States v. Currency $267,961.07, 916 F.2d at 1109, for example, the Sixth
Circuit reversed a district court’s dismissal of a claim for inter alia failing to comply with the
verified complaint requirement of Supplemental Rule C(6), instructing the court instead to
undertake a Rule 15 balancing analysis to determine whether claimants should have been permitted
to amend their complaint. See also United States v. $22,050.00 U.S. Currency, 595 F.3d 318, 323
(6th Cir. 2010) (recognizing some district court discretion to “determine whether to excuse
noncompliance” with the supplemental rules). In fact, even the district court case most supportive
of the government’s position tacitly acknowledges that it may in some cases be proper to allow a
plaintiff to rectify his noncompliance: in United States v. $25,982.28 in U.S. Currency, 2015 WL
410590, at *3, the claimant failed to respond to interrogatories for four months, leading the court
to dismiss the claim for lack of statutory jurisdiction—but only after concluding that “it is evident
to the Court that additional time would not produce a different result.”
Disputes over what one party may compel another to produce are a routine part of litigation
and, most of the time, do not result in a party’s claims being wholly stricken or dismissed. In
ordinary civil discovery, for example, the first step in the face of a disagreement between the
parties is to engage in a “good faith effort to resolve by agreement the issues raised.” Local R.

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37.01(b)(3); see also Fed. R. Civ. P. 37(a)(1). If the parties are unable to resolve the dispute
between them, the party propounding the request may file a motion to compel. Fed. R. Civ. P.
37(a)(1), (3). If the Court grants the motion, and the subject party fails to comply, the Court may
consider a wide array of sanctions. Fed. R. Civ. P. 37(b). Although one possible sanction is
dismissal of the party’s claim, a Court will only resort to dismissal if it determines that such a step
is warranted in light of the balancing of a number of factors, including “whether the dismissed
party was warned that failure to cooperate could lead to dismissal” and “whether less drastic
sanctions were imposed or considered before dismissal was ordered.” See Barron v. Univ. of
Mich., 613 F. App’x 480, 484 (6th Cir.) (citing United States v. Reyes, 307 F.3d 451, 458 (6th
Cir.2002)), cert. denied, 136 S. Ct. 416 (2015).
The Advisory Committee’s Note to the 2006 adoption of Rule G provides that “the special
role that subdivision (6) plays in the scheme for determining claim standing may justify a
somewhat more demanding approach to discovery sanctions than Rule 37.” A “somewhat more
demanding approach” however, does not require zero tolerance for error or overreach. That same
Advisory Committee’s Note cautions that “[n]ot every failure to respond to subdivision (6)
interrogatories warrants an order striking the claim.” Cf. United States v. Real Prop. Located at
17 Coon Creek Rd., Hawkins Bar Cal., Trinity Cty., 787 F.3d 968, 977 (9th Cir. 2015) (holding
that “where a claimant’s Article III and statutory standing are not reasonably in dispute, his failure
to respond to Rule G(6) special interrogatories does not, in itself, warrant striking his
claim”); United States v. $154,853.00 in U.S. Currency, 744 F.3d 559, 564 (8th Cir. 2014)
(reversing dismissal of claim for failure to respond to Rule G(6) interrogatories on ground that
claimant had established standing, rendering interrogatories unnecessary). That caveat is
particularly relevant where, as here, the Claimants did not ignore or refuse to respond to the

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government’s interrogatories, but merely responded with objections that the government has
deemed unfounded, overzealous, or overbroad.
Faced with Claimants’ objections, the United States could have come to this Court with a
motion to compel Claimants to provide the information it demands. Such a motion would have
entitled it to an adversarial consideration of Claimants’ objections and a judicial determination of
what information Claimants are or are not required to produce. Instead, the government seeks to
skip ahead to the harshest possible sanction, striking of Claimants’ claims. Nothing in the
Supplemental Rules, the precedents of this Circuit, or the interest of justice mandates such a
draconian response. Nor can the Court see what purpose such an unyielding regime would serve,
other than to discourage future claimants from objecting to interrogatory responses out of fear that
an adverse ruling would cost them not merely their rights to withhold information but their claims
altogether.
Accordingly, the Court will refer this matter to Magistrate Judge Newbern for the purpose
of consideration on the merits of any discovery disputes arising either out of the government’s
special interrogatories or any other discovery in this matter. Despite the government’s unilateral
assertion that “the time for discovery in relation to standing is over,” (Doc. No. 13 at 21) the plain
language of Rule G(6)(a) permits discovery related to standing to continue and special
interrogatories to issue “at any time . . . before discovery is closed.” Discovery related to the merits
of this case is still pending, which should provide ample opportunity to resolve any issues related
to discovery relevant to standing as well. If the United States wishes to continue to assert the
inadequacy of Claimants’ responses, it is instructed to file a motion to compel, after it complies
with Local Rule 37.01(b)(3). If, after the Magistrate Judge rules on the motion to compel,
Claimants’ objections are held to be unfounded and Claimants still refuse to produce the requested

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information, the United States may renew its request for dismissal of the claims due to
noncompliance with the Supplemental Rules.
Because general discovery and Rule G(6)(a) discovery will—as expressly contemplated by
the Rule—be proceeding simultaneously, the government’s Motion for a Protective Order will be
denied.
IV. CLAIMANTS’ MOTION TO DISMISS
Claimants argue that the United States’ delays in bringing this matter to trial amount to an
unconstitutional deprivation of their right to due process. An individual whose property has been
seized and is being made subject to forfeiture by the United States has a Fifth Amendment “due
process right to be heard at a meaningful time.” United States v. Eight Thousand Eight Hundred
& Fifty Dollars ($8,850) in U.S. Currency, 461 U.S. 555, 564 (1983). The Supreme Court has
held that the four-factor balancing test set forth in Barker v. Wingo, 407 U.S. 514 (1972), for
evaluating speedy trial claims is also appropriate for claims that the government unreasonably
delayed its initiation of forfeiture proceedings. Eight Thousand Eight Hundred & Fifty Dollars,
461 U.S. at 564. The United States appears to concede that the same four-factor inquiry can be
applied for due process claims based on delays that occurred after the initial forfeiture complaint
was filed. (Doc. No. 29 at 6.) Under Barker, the Court determines if the delay was unreasonable
by considering “[1] the length of the delay, [2] the reason for the delay, [3] the claimant’s assertion
of his right, and [4] the prejudice to the claimant.” United States v. Ninety-Three Firearms, 330
F.3d 414, 424–25 (6th Cir. 2003) (citing Barker, 407 U.S. at 530). Although each factor serves a
purpose, “[t]he length of the delay is to some extent a triggering mechanism. Until there is some
delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors
that go into the balance.” Id. (quoting Barker, 407 U.S. at 530).

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The delay in this case has, in the view of the Court, been long enough to at least raise the
specter of a due process violation if that delay had been wholly unjustified. The funds were seized
three years ago and the Complaint filed two and a half years ago. That Claimants have not yet had
a chance to challenge the forfeiture on the merits warrants some explanation. Most of the delay
since at least late 2015, however, has been due to the impasse over the adequacy of Claimants’
interrogatory responses. Claimants portray this impasse as merely the result of the government’s
“frivolous” positions in its motion to strike. (Doc. No. 35 at 2.) To the contrary, the government
advanced an aggressive position based on a colorable reading of the case law—just as Claimants
have advanced an aggressive position with regard to the degree of protection they are entitled to
against special interrogatories. Given that the impasse between the parties was occasioned at least
in part by litigation decisions made by Claimants themselves, the delay strikes the Court as
sufficiently justified to avoid running afoul of due process. The Court moreover does not consider
the prejudice to the Claimants so great, nor their own efforts to speed along the proceedings so
overwhelming, as to overcome this legitimate ground for the moderate delay. Claimants’ motion
will be denied.

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VI. CONCLUSION
For the foregoing reasons, the government’s Motion to Strike Claimants’ Claims will be
DENIED, its Motion for Default Judgment against all other persons will be GRANTED, its
Motion for a Protective Order will be DENIED, and Claimants’ Motion to Dismiss will be
DENIED.
The Court will issue an appropriate Order.

____________________________________
WAVERLY D. CRENSHAW, JR.
UNITED STATES DISTRICT JUDGE

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