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United States of America v. $22

July 16, 2012

UNITED STATES OF AMERICA, PLAINTIFF,
v.
$22,555.00 IN U.S. CURRENCY, DEFENDANT.



The opinion of the court was delivered by: Glenn T. Suddaby, United States District Judge

MEMORADUM-DECISION and ORDER

Currently, before the Court, in this in rem civil forfeiture action filed by the United States ("Plaintiff") against twenty-two thousand, five hundred fifty five dollars ($22,555.00) in U.S. currency ("Defendant Currency") and Justin Roland-Vandemark as Claimant of Defendant

Currency ("Claimant"), is Plaintiff's motion to dismiss Claimant's Claim and Answer for failure to participate in the discovery process and for failure to comply with an order compelling discovery pursuant to Fed. R. Civ. P. 37(b). Claimant has not opposed the motion. For the reasons set forth below, Plaintiff's motion is granted, and Claimant's Claim and Answer are dismissed for failure to comply with an order compelling discovery.

I. RELEVANT BACKGROUND

A. Plaintiff's Complaint and Claimant's Answer

Defendant Currency was seized on or about February 22, 2011, from a GMC Suburban driven by Claimant. (Dkt. No. 1, at ¶¶ 2, 4 [Plf.'s Complaint].) Plaintiff brought this action to forfeit and condemn the Defendant Currency to the use and benefit of the United States pursuant to 21 U.S.C. § 881. (Id., at ¶¶ 1, 8.) In support of its Complaint, Plaintiff alleges that Defendant Currency was the proceeds of illegal drug sales made by Claimant. (Id.) Subsequently, Claimant filed a Claim and an Answer in this action, asserting that he is the rightful owner of Defendant Currency and that the seizure of Defendant Currency was unlawful. (See generally Dkt. Nos. 7-8.) Familiarity with the remaining factual allegations supporting Plaintiff's claim for forfeiture is assumed in this Memorandum-Decision and Order, which is intended primarily for review by the parties.

B. Plaintiff's Motion

Generally, in support of its motion, Plaintiff argues that Claimant's Claim and Answer should be dismissed under Fed. R. Civ. P. 37(b) because (1) Claimant has willfully refused to participate in the discovery process by failing to respond to Plaintiff's discovery requests, despite Plaintiff's best efforts, and (2) Claimant has willfully failed to comply with the Order of Magistrate Judge David R. Homer compelling a discovery response from Claimant. (See generally Dkt. No. 20, Attach. 1 [Plf.'s Memo. of Law].)

Alternatively, Plaintiff seeks an Order pursuant to Fed. R. Civ. P. 37(b)(2)(A)(i) directing that the following facts be established for the purposes of this action: (1) that the Defendant Currency was proceeds from marijuana sales by Claimant, and (2) that the Defendant Currency has no lawful source. (Dkt. No. 20, Attach. 1, at 11.) As yet a further form of relief, Plaintiff requests an Order pursuant to Fed. R. Civ. P. 37(b)(2)(A)(ii) that would bar Claimant from opposing the two claims described above and from introducing any evidence not provided to Plaintiff in discovery. (Id.)

In support of its motion, Plaintiff asserts the following material facts regarding the procedural history in this case. Plaintiff issued interrogatories and a request for production of documents to Claimant on January 9, 2012. (Dkt. No. 20, Attach. 2, at ¶ 7; Attach. 5 [attaching Ex. C to Carroll Decl.].) Claimant was to respond to the interrogatories within 30 days and the request for production of documents within 45 days. (Id.) On January 3, 2012, Plaintiff sent a notice of deposition to Claimant for a deposition on February 10, 2012. (Dkt. No. 20, Attach. 2, at ¶ 8; Attach. 6 [attaching Ex. D to Carroll Decl.].) Subsequently, Plaintiff sent three separate reminder letters about the deposition, each requesting confirmation that Claimant would attend and informing Claimant that Plaintiff would interpret a failure to respond to the letters as confirmation that the deposition would proceed as planned. (Dkt. No. 20, Attach. 2, at ¶ 8; Attach. 7-9 [attaching Exs. E, F, & G to Carroll Decl.].) Despite these letters, Claimant's attorney informed Plaintiff, only two days before the scheduled date, that Claimant would not be able to attend the deposition due to a scheduling conflict. (Dkt. No. 20, Attach. 2, at ¶ 8; Attach. 11 [attaching Ex. H to Carroll Decl.].) Plaintiff sent Claimant a letter on February 10, 2012, giving Claimant an unsolicited ten-day extension to answer Plaintiff's interrogatories because Claimant's response was overdue. (Dkt. No. 20, Attach. 2, at ¶ 9; Attach. 11 [attaching Ex. I to Carroll Decl.].) The letter also reminded Claimant that the response to Plaintiff's request for production of documents was due on February 27. (Id.)

On February 21, 2012, Magistrate Judge Homer held a settlement conference in this case, at which Claimant failed to appear. (Dkt. Entry for 2/21/12; Dkt. No. 20, Attach. 2, at ¶ 9.) At the conference, Plaintiff informed Magistrate Judge Homer that Claimant's discovery responses were overdue and requested a discovery conference. (Id.) Magistrate Judge Homer scheduled a discovery conference for February 28, 2012. (Dkt. Entry for 2/21/12.) At this discovery conference, Plaintiff requested an Order compelling Claimant to comply with its discovery requests, and Claimant did not oppose the request. (Dkt. No. 19.) Magistrate Judge Homer issued an Order that compelled Claimant to provide responses to all outstanding interrogatories and requests for production of documents by March 1, 2012. (Id.) The Order further compelled Claimant to provide Plaintiff, on or before March 9, 2012, with written notice of three dates when he would be available for deposition. (Id.) Claimant's attorney was in the United States Attorney's office on March 7, 2012, and was reminded that Claimant's notice of deposition dates was due on March 9. (Dkt. No. 20, Attach. 2, at ¶ 8; Attach. 11 [attaching Ex. H to Carroll Decl.].) However, as of the date of the filing of this motion, Claimant had not responded to either part of Magistrate Judge Homer's order, nor has Claimant provided any explanation for the delays in responding to Plaintiff's discovery requests. (Dkt. No. 20, Attach. 2, at ¶ 11.)

Finally, as noted above, Claimant did not respond in opposition to this motion. (See generally Docket Sheet.)

II. RELEVANT LEGAL STANDARD

Rule 37(b) of the Federal Rules of Civil Procedure provides, in relevant part, as follows: If a party or a party's officer, director, or managing agent--or a witness designated under Rule 30(b)(6) or 31(a)(4)--fails to obey an order to provide or permit discovery, including an order under Rule 26(f), 35, or 37(a), the court where ...


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