United States District Court, W.D. New York
DECISION AND ORDER
Hugh B. Scott, United States Magistrate Judge
INTRODUCTION AND BACKGROUND
law enforcement agents have been investigating Jason Nocera
(“Nocera”) for alleged illegal debt collection
activities in this District and elsewhere. The investigation
has included interviews of former employees at Nocera's
debt collection company and reviews of consumer complaints
submitted to the New York State Attorney General's
Office. Agents eventually identified certain bank accounts
belonging to Nocera that contained $242, 088.18 in total
funds- the defendant funds in question. On March 5, 2018,
Magistrate Judge Michael Roemer found probable cause to
believe that the defendant funds were “property
involved in a money laundering transaction, in violation of
Title 18, United States Code, Sections 1956(a)(1)(A)(i) and
Section 1957, or . . . currency traceable to such property
and pursuant to Title 18, United States Code, Sections
981(a)(1)(C), as property which constitutes, or was derived
from, proceeds traceable to a specified unlawful activity, to
wit: wire fraud, in violation of Title 18, United States
Code, Section 1343 and engaging in monetary transactions in
property derived from specified unlawful activity, in
violation of Title 18, United States Code, Section
1957.” (Dkt. No. 1 at 1.) Agents received the defendant
funds on April 2, 2018 following the execution of seizure
commenced this case by filing a verified complaint for
forfeiture on September 10, 2018. (Dkt. No. 1.) Plaintiff
named the defendant funds as the sole in rem defendant. On
October 18, 2018, Nocera filed an answer and verified claim
for the defendant funds. (Dkt. No. 6.) The case has stalled
since. The Court set an initial scheduling order on January
17, 2019. (Dkt. No. 13.) Plaintiff filed a motion on August
27, 2019 (Dkt. No. 14) to compel responses to a first set of
interrogatories and a first request for document production.
With plaintiff's consent, the deadlines either to respond
to the motion or to conclude discovery have been extended
five times. (Dkt. Nos. 17, 19, 22, 24, 26.) The latest
deadline to respond to the motion was November 20, 2019.
Nocera never filed responding papers.
together, Rules 34 and 37 allow the Court to compel discovery
including documents or other things. “Motions to compel
and motions to quash a subpoena are both entrusted to the
sound discretion of the district court. This principle is in
keeping with the traditional rule that a trial court enjoys
wide discretion in its handling of pre-trial discovery, and
its rulings with regard to discovery are reversed only upon a
clear showing of an abuse of discretion.” Am. Sav.
Bank, FSB v. UBS PaineWebber, Inc., 330 F.3d 104, 108 (2d
Cir. 2003) (internal quotation and editorial marks and
citations omitted). That said, however, “it is
bewildering to learn that neither party attempted at an early
stage to seek a stay of this proceeding.” United
States v. Any & all funds on deposit in SeatComm Fed.
Credit Union Account No. XXX567 in the name of Lazare,
No. 8:13-CV-1400 RFT, 2015 WL 93657, at *2 (N.D.N.Y. Jan. 7,
2015). The claimant in this case, Nocera, is the same person
described in the complaint as having conducted or directed
illegal debt collection activities that led to wire fraud and
money laundering. Cf. United States v. Leasehold
Interests In 118 Ave. D, Apartment 2A, 754 F.Supp. 282,
289 (E.D.N.Y. 1990) (suggesting that an identity of parties
in both a forfeiture and a criminal case would establish good
cause for a stay). Plaintiff is under no obligation to
disclose any ongoing criminal investigation, and no criminal
case naming Nocera is in the District's CM/ECF public
caseload as of this writing. Nonetheless, one judge in this
District already has found probable cause to believe that
some kind of criminal activity related to Nocera occurred.
The risk of criminal liability to Nocera is obvious.
Compelling Nocera to engage in discovery in this context
carries due-process risks. See Louis Vuitton Malletier
S.A. v. LY USA, Inc., 676 F.3d 83, 97 (2d Cir. 2012).
Without engaging in unwarranted speculation, the five
extensions that the parties have requested so far probably
indicate some recognition of the risks. Yet not even Nocera
has requested a stay, and the Court has no statutory
authority to issue a stay sua sponte. See
18 U.S.C. § 981(g)(1-2) (requiring courts to stay civil
forfeiture proceedings upon satisfaction of certain criteria
but only “upon the motion of the United States”
or “upon the motion of a claimant”).
these circumstances, and especially with no response to the
motion from Nocera, the most prudent outcome here will be to
grant plaintiff's motion but with a long enough deadline
to allow the parties to consider the propriety of a stay.
Since plaintiff filed a motion to compel on August 27, 2019,
Nocera will have up to and including March 31, 2020 to
respond to any interrogatories or other discovery demands
that plaintiff served as of the date of the motion. Between
now and Nocera's deadline to respond, the parties are
encouraged to confer about the propriety of seeking a stay of
this case. Absent extraordinary circumstances, the Court will
not entertain any more delays regarding existing discovery
demands absent a motion for a stay.
of the foregoing reasons, the Court grants plaintiff's
motion to compel. (Dkt. No. 14.) Nocera will respond to
existing discovery demands-or at least one ...