United States of America v. $88,029.08, More or Less, in United States Currency
MEMORANDUM OPINION AND ORDER granting 45 MOTION to Set Aside Default Judgment by Katherine Anne Hoover and John F. Tomasic; directing that the defaults previously entered are set aside and vacated; denying 46 MOTION by Katherine Anne Hoover and John F. Tomasic to Declare Mary Stanley's Response Denying Motion to Comply with Treaty Law a Nullity and to have Mary Stanley Accept the Legal Requirement that She is Recused; denying 47 MOTION by Katherine Anne Hoover and John F. Tomasic to Reinstate Docket Number 38 and to Nullify Ms. Stanley's Response; denying as moot 50 MOTION to Strike United State's Response. Signed by Judge John T. Copenhaver, Jr. on 4/12/2011. (cc: attys; any unrepresented party) (tmr)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
UNITED STATES OF AMERICA
Civil Action No. 2:10-1087
$88,029.08, More or Less,
in United States Currency,
Katherine Anne Hoover
John F. Tomasic
MEMORANDUM OPINION AND ORDER
Pending are the motions by interested parties Katherine
Anne Hoover, M.D., and John F. Tomasic to (1) set aside default
judgment (“motion to set aside”), (2) to “Declare [United States
Magistrate Judge] Mary Stanley's Response Denying Motion to
Comply with Treaty Law a Nullity and to Have [magistrate judge]
Mary Stanley Accept the Legal Requirement that She is Recused,”
(3) to “Reinstate Docket Number 38 and to Nullify . . .
[magistrate judge] Stanley's Response,” all three of which were
filed February 11, 2011, and (4) to strike the United States’
February 28, 2011, response to the motion to set aside default
judgment (“motion to strike”), filed March 17, 2011.
and third motions are treated collectively as an appeal from two
orders entered January 28, 2011, by the magistrate judge.
Respecting the motion to set aside, the United States
instituted this action on September 10, 2010, with a Verified
Complaint of Forfeiture.
On December 20, 2010, the magistrate
judge noted as follows:
Rule G(5) of the Supplemental Rules contains
specific provisions regarding the contents of a claim
to property and an answer. Although the Interested
Parties are representing themselves (proceeding “pro
se”), they will be expected to follow the Rules to the
best of their ability.
It is hereby ORDERED that each Interested Party
must serve and file with the Clerk his/her respective
claim to the defendant property no later than January
14, 2011. Each Interested Party’s claim must comply
with the provisions of Rule G(5) of the Supplemental
Rules. It is further ORDERED, pursuant to Supplemental
Rule G(6)(b), that each Interested Party shall serve
and file with the Clerk his/her respective answer to
the complaint within 21 days after filing his/her
claim. A copy of each document filed by an Interested
Party with the Clerk must be served on Assistant United
States Attorney Betty A. Pullin, pursuant to Rule 5,
Federal Rules of Civil Procedure.
(Magis. J. Ord. at 2-3).
On January 6, 2011, the interested parties responded
with a frivolous challenge to the court’s exercise of subject
That filing was followed in serial fashion
by similarly meritless offerings.
(See Pls.’ Lack of Document.
to Supp. Subj. Matt. Juris. (Jan 10, 2011); Pls.’ Mot. to Comply
With Treaty Law (Jan. 18, 2011); Pls.’ Crim. Acts and High Crimes
Committed by Betty Pullin (Jan. 27, 2011).
On February 8, 2011,
the Clerk entered default against both interested parties
In addition to repeating certain meritless contentions,
Mr. Tomasic and Dr. Hoover assert that they filed verified
responses to the complaint respectively on November 2 and 23,
The United States concedes that Mr. Tomasic and Dr.
Hoover filed those verified responses, which purport to respond
to the complaint in accordance with Rule G, Supplemental Rules
for Admiralty or Maritime Claims and Asset Forfeiture Actions.
It notes further, however, that the magistrate judge’s December
20, 2010, order “was silent as to the court’s view of the
[responses but that] . . . the documents were obviously deemed to
be deficient since the court directed the interested parties to
file their respective claims and answers at a later date.”
(Gov’t. Resp. at 3).
Rule G(5)(a) and (b) govern the filing of claims and
responsive pleadings in forfeiture actions.
respectively as follows:
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
(A) identify the specific property claimed;
(B) identify the claimant and state the
claimant's interest in the property;
The interested parties reiterate the absence of subject
matter jurisdiction. They also assert that the case should “be
assigned to a fair judge.” (Pls.’ Mot. to Set Aside at 1). No
grounds for recusal are offered.
(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
. . . .
A claimant must serve and file an answer to the
complaint or a motion under Rule 12 within 21 days
after filing the claim. A claimant waives an objection
to in rem jurisdiction or to venue if the objection is
not made by motion or stated in the answer.
Supp. Admir & Marit. Claims Rule G(5)(a) and (b).
Both the Supreme Court and our court of appeals have
consistently afforded pro se filings a liberal construction.
See, e.g., Erickson v. Pardus,
551 U.S. 89, 94 (2007)(“The Court
of Appeals' departure from the liberal pleading standards set
forth by Rule 8(a)(2) is even more pronounced in this particular
case because petitioner has been proceeding, from the
litigation's outset, without counsel. A document filed pro se is
‘to be liberally construed,’ and ‘a pro se complaint, however
inartfully pleaded, must be held to less stringent standards than
formal pleadings drafted by lawyers . . . .’”) (citations
omitted) (quoting also Fed. Rule Civ. Proc. 8(f) (“‘All pleadings
shall be so construed as to do substantial justice’”)); Noble v.
Barnett, 24 F.3d 582, 587 n.6 (4th Cir. 1994)(noting pro se
filings “however unskillfully pleaded, must be liberally
Construed in light of the admonitions in Erickson,
Noble, and their multitudinous progeny, Mr. Tomasic’s and Dr.
Hoover’s verified responses satisfy the requirements for both a
claim and a responsive pleading under Rule G(5).2
accordingly, ORDERS that the motion to set aside be, and it
hereby is, granted.
It is further ORDERED that the defaults
previously entered be, and they hereby are, set aside and
The court additionally ORDERS that the motion to strike
be, and it hereby is, denied as moot.
Regarding the appeal, the interested parties simply
reiterate their futile jurisdictional challenges.
The thrust of
those challenges is that a physician may prescribe whatever he or
she wishes to patients, essentially without fear of transgressing
the federal laws restricting the distribution of controlled
The interested parties also offer premature
challenges to the merits of the forfeiture sought by the United
The United States asserts that Dr. Hoover’s November 23,
2010, verified response was untimely. The United States asserts
the document should have been filed no later than November 22,
2010. In view of the lack of any prejudice and the interested
parties’ pro se status, the court will deem the verified response
timely. The court also notes that Mr. Tomasic’s verified
response appears to lack proof of service. It is apparent from
the United States’ filings in this action, however, that it
received the document. Nevertheless, the interested parties are
cautioned to affix certificates of service to any future filings
in this action.
Inasmuch as no meritorious grounds are stated in the
appeal, the court ORDERS that the January 28, 2011, orders
appealed from be, and they hereby are, affirmed.
It is further
ORDERED that the motions (1) to "Declare [United States
Magistrate Judge] Mary Stanley's Response Denying Motion to
Comply with Treaty Law a Nullity and to have [magistrate judge]
Mary Stanley Accept the Legal Requirement that She is Recused,"
and (2) to "Reinstate Docket Number 38 and to Nullify [magistrate
judge] Stanley's Response,” be, and they hereby are, denied.
The Clerk is directed to forward copies of this written
opinion and order to all counsel of record and any unrepresented
DATED: April 12, 2011
John T. Copenhaver, Jr.
United States District Judge
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