United States of America v. One Parcel of Property at 66 Branch Creek Drive, Jackson, TN with All Appurtenances and Improvements Thereon et al
Filing
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ORDER GRANTING PLAINTIFF'S RENEWED MOTION TO STRIKE 160 . Signed by Chief Judge J. Daniel Breen on 2/11/15. (Breen, J.)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
v.
No. 13-1265
ONE PARCEL OF REAL PROPERTY
LOCATED AT 66 BRANCH CREEK DRIVE,
JACKSON, TENNESSEE with all Appurtenances
and Improvements Thereon, et al.,
Defendants.
_____________________________________________________________________________
ORDER GRANTING PLAINTIFF'S RENEWED MOTION TO STRIKE
_____________________________________________________________________________
On September 23, 2013, the Plaintiff, the United States of America, filed a verified complaint
of forfeiture as to certain property, including real property, businesses and bank accounts, pursuant
to 21 U.S.C. § 881(a)(6) and (7) and 18 U.S.C. § 981(a)(1)(A). On January 3, 2014, Mahmoud
"Steve" Safa, on his own behalf as well as that of Law Road Realty, Inc.; Riverside Petroleum, Inc.;
Riverside Petroleum Lottery, Inc.; Safeco Energy, Inc.; Safeco Energy Lottery, Inc.; Safeco
Petroleum, Inc.; Safeco Realty, Inc. and Safeco Transport, Inc., filed claims to the property sought
to be forfeited. Safa and the enumerated entities, of which it is undisputed that Safa is owner,
director and/or majority shareholder, are collectively referred to herein as the "Safa Claimants"
Before the Court is the Government's renewed motion to strike the claims and answers of the Safa
Claimants. (D.E. 160.)
The following facts are undisputed for purposes of the instant motions. Safa was indicted
by a federal grand jury in the Western District of Tennessee on June 24, 2013. The indictment
charged him and eleven co-defendants with, among other things, conspiracy to distribute Schedule
I controlled substances in violation of 21 U.S.C. § 846. The indictment contained criminal forfeiture
allegations, which gave notice of the Government's intent to forfeit certain property, including that
at issue in this matter. The indictment resulted in the issuance of a warrant for the arrest of Safa on
July 15, 2013.
On April 15, 2014, the United States served Safa with a notice of deposition, scheduled for
June 3, 2014 at the United States Attorney's office in Jackson, Tennessee. He failed to appear and,
through his counsel, advised the Government that there was no date upon which he could appear for
deposition. As a consequence, the Plaintiff filed a motion to compel discovery, which was granted
on July 2, 2014 by Magistrate Judge Edward G. Bryant pursuant to an order of reference. The
magistrate judge's order directed Safa to appear for deposition at the United States Attorney's office
"at the time to be established by the United States Attorney." (D.E. 81 at 2.) The Plaintiff served
a second subpoena on July 3, 2014 for Safa's appearance at a deposition set for July 23, 2014. Safa's
counsel advised the Government in an email dated July 22, 2014 that he intended to return to the
United States within three to six months, depending on the state of his ill father's health. (D.E. 137-1
at 2.) Again, he failed to appear.
The Government also propounded written discovery requests to Safa, including the following
interrogatory:
Be advised that on or about June 24, 2013, a warrant or process was issued for your
apprehension by the United States District Court for the Western District of
Tennessee in connection with the criminal case of United States v. Mahmoud "Steve"
Safa, et al., No. 1:13-cr-10056-JDB, and is currently in force. Having been so
advised, state whether you became aware of the warrant or process via this
interrogatory or at some earlier time, being specific about the date upon which you
became aware of the warrant or process and by what means; whether, and on what
date, you left the jurisdiction of the United States; whether you are still outside the
jurisdiction of the United States, being specific as to your current location; whether
you are declining to enter or re-enter the United States to submit to its jurisdiction;
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and whether you are currently confined or held in custody in another jurisdiction for
commission of criminal conduct in that jurisdiction.
(D.E. 144-1 at 6-7.) Safa responded thusly:
In February of 2013 I left the United States to return to Lebanon where I have
children and sick, aged parents. I do not have a wife. In Lebanon I am completely
responsible for my family and have been for some time. My father is in the hospital
and I cannot return to the United States because of my responsibilities to my family.
Because of the grave illness of my father and needs of my mother and children I
cannot return to the United States at this time.
(Id. at 7.)
Judge Bryant set a hearing date of August 27, 2014 on the motion of Claimant BancorpSouth
Bank for expedited consideration of its request for interlocutory sale. (D.E. 141.) At the hearing,
the magistrate judge also addressed Safa's failure to appear for deposition. (D.E. 142.) He ordered
Safa to appear within fourteen days and, if he failed to do so, advised that "further steps will be
taken to ensure his appearance in this matter." (Id.) Another hearing was set by the magistrate judge
for September 10, 2014. (D.E. 143.) Once more, Safa was not present. (See D.E. 146.)
In a report and recommendation entered September 18, 2014, Judge Bryant recommended
that the motion to strike be granted. (D.E. 148.) The Safa Claimants filed timely objections and,
in an order entered November 18, 2014, this Court rejected the recommendation of the magistrate
judge and denied the motion to strike without prejudice. (D.E. 151.)
As the Court noted in its November 18 order, Rule 37 permits the district court to impose
sanctions on a party who fails to obey a court order to provide discovery or to appear for his
deposition. Fed. R. Civ. P. 37(b)(2)(A) & (d)(1)(A)(i). Sanctions may include "striking pleadings
in whole or in part." Fed. R. Civ. P. 37(b)(2)(A)(iii), see also Fed. R. Civ. P. 37(d)(3). In
considering whether claims in a forfeiture action should be dismissed under Rule 37, the court is to
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consider certain factors including: "(1) whether the party's failure is due to willfulness, bad faith,
or fault; (2) whether the adversary was prejudiced by the dismissed party's conduct; (3) whether the
dismissed party was warned that failure to cooperate could lead to dismissal; and (4) whether less
drastic sanctions were imposed or considered before dismissal was ordered." United States v. Reyes,
307 F.3d 451, 458 (6th Cir. 2002). While no one factor is dispositive, "dismissal is proper if the
record demonstrates delay or contumacious conduct." Id. "Contumacious conduct refers to behavior
that is perverse in resisting authority and stubbornly disobedient." Carpenter v. City of Flint, 723
F.3d 700, 704-05 (6th Cir. 2013) (quoting Schafer v. City of Defiance Police Dep't, 529 F.3d 731,
737 (6th Cir. 2008)) (internal quotation marks omitted). The Court found that
[t]he magistrate judge did not discuss these factors in his report and recommendation,
finding only that Safa's noncompliance appeared to be willful. The factor that is of
particular concern to the undersigned is the third - whether Safa was warned that his
failure to cooperate could lead to dismissal. The magistrate judge's July 2, 2014
order contained no warning of the possible consequences of a failure to comply with
its directive. Judge Bryant's oral admonition on August 27, 2014 that continued
failures to appear would result in "further steps [being] taken to ensure his
appearance in this matter" was vague and did not, in the undersigned's view,
constitute an adequate warning that the Safa Claimant's claims could be dismissed.
Moreover, it is unclear whether this warning was communicated to Safa. While the
district court "has the power to dismiss a claim as the first and only sanction, . . . [the
Sixth Circuit] has repeatedly reversed district courts for dismissing cases because
litigants failed to appear or to comply with pretrial orders when the district courts did
not put the derelict parties on notice that further noncompliance would result in
dismissal." Kovacic v. Tyco Valves & Controls, LP, 433 F. App'x 376, 382 (6th Cir.
2011).
(D.E. 151 at 6.) The Court further determined that
[Safa] informed the Government as early as July 22, 2014 that he would be unable
to return to the United States for at least three to six months depending on his father's
condition. As the three-month mark has passed, the Government may again notice
Safa's deposition. The Government must notice the deposition at least thirty days
prior to the date set therefor in order to provide [Safa] with an opportunity to make
arrangements for travel and care of his family members. The deposition must take
place on United States soil. If Safa again attempts to excuse his appearance on the
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grounds of his father's hospitalization, he must promptly provide to the Government
properly authenticated supporting documentation from his father's physician of said
hospitalization. Should he fail to do so, this Court will be prepared to grant the relief
sought by the Government.
(Id. at 12 (internal footnote omitted).)
On December 12, 2014, Safa's attorney gave notice to the Court that he would be unavailable
for deposition on December 19, 2014, a date proposed by the Government. (D.E. 152.) Counsel
advised that Safa's father remained ill and must have the "permanent presence of a member of his
family." (Id. at 1.) The filing included the reports to two physicians. The motion was granted (D.E.
156) and Safa was ordered to appear for deposition at the United States Attorney's office in Jackson
on January 20, 2015 (D.E. 155). After he again failed to appear, the Government renewed its motion
to strike the Safa Claimants' claims and answers. (D.E. 160.) Safa's attorney has made no response
to the motion, and the time for such response has run.
At this point, the Court has little choice but to find for the Government. The December 12,
2014 filing offered no indication that Safa would ever attend a deposition in the United States. In
addition, the physicians' reports sworn to or otherwise authenticated. This, coupled with his failure
to appear and his lawyer's apparent lack of a defense thereof, even in the face of a clear warning by
this Court of the dire consequences of such action, constitutes the contumacious conduct for which
dismissal under Rule 37 is proper. The motion to strike the Safa Claimants' claims and answers is
GRANTED.
IT IS SO ORDERED this 11th day of February 2015.
s/ J. DANIEL BREEN
CHIEF UNITED STATES DISTRICT JUDGE
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