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United States v. $7

United States District Court, W.D. New York

March 20, 2015

$7, 877.61 UNITED STATES CURRENCY, Defendant.


MARIAN W. PAYSON, Magistrate Judge.

Currently pending before the Court is a motion filed by the United States (hereinafter, "plaintiff") for an order striking the answer and claim filed by claimant Harvey Bailey (hereinafter, "claimant") on the grounds that claimant failed to appear for his deposition and "refused to complete the settlement of the case" despite extensive negotiations. (Docket # 57). Claimant has not specifically opposed the motion, although he has opposed a subsequent show cause order issued by this Court and motion for summary judgment filed by plaintiff. ( See Docket ## 64, 66, 78).

Plaintiff filed this action on June 12, 2009, seeking the forfeiture of $7, 877.61 in United States currency seized from claimant on June 30, 2008. (Docket # 1). Throughout the litigation, claimant has represented himself pro se. The original scheduling order has been extended twice, most recently on April 4, 2014. (Docket ## 22, 44, 56). Pursuant to the latest order, the deadline for completion of fact discovery was May 30, 2014, and the deadline for filing dispositive motions was September 5, 2014. (Docket # 56). I. Settlement Negotiations in 2011 and 2012

In a conference with this Court on November 6, 2012, the parties advised that they had begun to engage in settlement negotiations. In a further conference on December 13, 2012, the parties advised that claimant had child support debts in excess of the amount at issue in this case. Plaintiff's counsel also indicated her intent to depose claimant, and claimant informed the Court that he could come to Rochester from Elmira for his deposition.

On December 18, 2012, plaintiff served claimant with a Notice of Deposition for January 18, 2013. (Docket # 57-1, Exhibit ("Ex.") A). On January 14, 2013, plaintiff's counsel sent a letter to claimant cancelling the scheduled deposition "[s]ince we have reached an agreement for the resolution of his case." ( Id. at Ex. B). A Stipulation for Settlement was enclosed with the letter. ( Id. ).[1] Despite apparent assurances from claimant that he would sign the documents, he returned a bank account document necessary to effectuate the settlement, but counsel never received an executed Stipulation, despite having provided numerous copies to claimant. ( Id. at Exs. C, D, E, G). Eventually, by letter dated November 26, 2013, claimant advised plaintiff's counsel that he did not wish to settle unless he could "get a sum of money in my own pocket mailed directly to me" without being applied towards his child support obligations. ( Id. at Ex. J).

By letter to this Court dated April 4, 2014, plaintiff's counsel submitted a proposed Second Amended Scheduling Order that was agreeable to both parties. ( Id. at Ex. L). The letter confirmed plaintiff's intention to depose claimant. ( Id. ). The Court accepted the parties' proposal, and issued an amended scheduling order. (Docket # 56). The scheduling order has not been amended since.

II. Reinitiation of Settlement Negotiations and Claimant's Non-Appearance for May 23, 2014 Noticed Deposition

In compliance with that scheduling order, plaintiff noticed claimant's deposition for May 2, 2014, in the United States Attorney's Office in Rochester, New York. (Docket # 57-1, Ex. M). On April 24, 2014, claimant telephoned this Court's chambers to advise that he could not come to Rochester for the deposition. This Court's Law Clerk advised claimant to discuss the matter with opposing counsel to determine whether a solution could be devised. Claimant was further directed that if his discussions with counsel were unsuccessful in resolving the problem and he wanted relief from the Court, he should seek such relief expeditiously because the deposition was scheduled for the following week.

According to plaintiff's counsel, claimant left a telephone message for her on April 24, 2014, stating that he did not have the funds to travel to Rochester for the deposition. (Docket # 57 at ¶ 20). By letter and voicemail message the next day, counsel told claimant that he needed to appear for the scheduled deposition, noting that a court reporter had been hired and that "[f]ees will be incurred whether or not you appear." (Docket # 57-1 at Ex. N). The letter further acknowledged that claimant had indicated in his voicemail message that he would like to resolve the case and noted that "[a]ny money returned to [claimant]... will be paid first toward [his] child support debts and [he] will receive a credit." ( Id. ). Counsel invited claimant to call her if he "wish[ed] to further discuss this matter." ( Id. ).

On May 1, 2014, claimant contacted plaintiff's counsel and informed her that he would not appear for his deposition the next day. ( Id. at ¶ 21). According to counsel, claimant further stated that he would settle the case if certain language were removed from the proposed Stipulation for Settlement. ( Id. ). Counsel agreed to remove the language, and later that day wrote this Court to advise that claimant had indicated that he would not be able to appear for his deposition, but was willing to settle the case on terms acceptable to plaintiff. ( Id., Ex. O). Counsel requested that the Court conduct a recorded telephone conference with the parties later that day so that claimant could confirm his intent to settle the case and explained that the reason for the request was that claimant had a history of failing to execute settlement agreements despite verbal agreements to do so. ( Id. ).

The Court agreed to conduct a recorded telephone conference as requested on May 1, 2014, but counsel for plaintiff cancelled the call. As she explained in a letter to the Court the following day, with a copy to claimant:

Th[e] settlement was in essence to return the monies to [claimant] provided he knew that they would be applied to an outstanding child support debt owed by him to Chemung County Department of Social Services.
Later in the afternoon [of May 1, 2014], I became aware of some conflicting information about the debts owed by [claimant] and therefore my office was not willing to settle in light of certain clarification we need from the Chemung County Department of Social Services. However, today we have confirmed the debt and will continue to endeavor to settle the case.
[Claimant] had called my office a number of times in the past few weeks asking to postpone the May 2nd deposition indicating that he was having difficulty traveling to Rochester. We have now postponed the deposition to May 23, 2014 at 1:00 p.m. in the U.S. Attorney's Office, Rochester, New York. If [claimant] signs and ...

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