Opinion
No. C 03-05121 WHA.
March 31, 2004
JUDGMENT
For the reasons stated in the accompanying order granting default judgment, JUDGMENT IS HEREBY ENTERED in favor of UNITED STATES OF AMERICA. The in rem defendant currency of $7,250.00 in United States currency is forfeited to the United States. 21 U.S.C. § 881(a)(6). All right, title and interest in the $7,250.00 in United States currency is hereby vested in the United States of America and all other claims thereto are barred.
The Clerk of the Court shall CLOSE the file.
IT IS SO ORDERED.
ORDER GRANTING DEFAULT JUDGMENT; VACATING HEARING
In this in rem forfeiture action, plaintiff now moves for default judgment after obtaining an entry of default on February 26, 2004. Under Federal Rule of Civil Procedure 55(b)(2), a party can apply to a district court for an entry of default judgment. Whether to grant a motion for default judgment is within the discretion of the district court. Lau Ah Yew v. Dulles, 236 F.2d 415, 416 (9th Cir. 1956). This order GRANTS plaintiff's motion for default judgment for the following reasons.The in rem defendant currency herein was seized during consensual search of the bedroom of a non-party Roberto Escobedo, who was earlier arrested for delivering approximately five kilograms of cocaine (Compl. 1-2). The government asserts that in rem defendant currency is subject to forfeiture as proceeds derived from a narcotics exchange or funds intended to be used in exchange for narcotics. 21 U.S.C. § 881(a)(6). Any property subject to civil forfeiture may be seized and forfeited under Supplemental Rules of Certain Admiralty and Maritime Claims and, thereby, the Admiralty Local Rules. 21 U.S.C. § 881(b).
In this district, Admiralty Local Rule 6-2 provides for default judgment in an in rem action upon showing that:
(a) Notice has been given as required by Admir. L.R. 6-1;
(b) The time to answer has expired, and
(c) No one has appeared to claim the property.
Here, the government has shown all three.
First, the government has given notice as required under Admiralty Local Rule 6-1, which requires notice by publication in a newspaper of daily circulation in the district, service upon custodian of the property and any other person known to have an interest in the property. Plaintiff published a notice of the present action in the Recorder, a daily, legal newspaper of general circulation in this district, on November 25, December 2, and December 9, 2003 ( id. ¶ 5a). Because the in rem defendant was discovered in Roberto Escobedo's room, the United States Marshals Service served the complaint upon Roberto Escobedo's criminal attorney on November 19, 2003 ( see Kenney Decl. ¶ 4). In addition, on November 25, 2003, the complaint, warrant for arrest in rem, and notice of the forfeiture action were served by certified mail to Roberto Escobedo ( id. ¶ 5). Thus, all interested parties have been served with a copy of the complaint or provided notice by publication.
Second, the second two factors are considered together because the underlying facts are intertwined. Any person claiming an interest in the seized property can contest forfeiture by filing a claim asserting such an interest in the property within 30 days of service of the complaint or within 30 days of the last day of publication of notice of filing the complaint. 18 U.S.C. § 983(a)(4)(A). Thereafter, the claiminat who filed an a claim must file an answer within 20 days after filing the statement. Fed.R.Civ.P. Supp. Admir. R. C(6)(a)(iii). On November 19, 2003, plaintiff filed its verified complaint for forfeiture. The last day for publication of notice was on December 9, 2003. Thus, under the statute, anyone who has an interest in the seized property must file a claim by January 8, 2004. The answer was due at the latest 20 days thereafter on January 28, 2004.
As of February 24, 2004, no one had filed a claim or answered in this action ( id. ¶ 5b). The statutory allotted time to file a claim has expired. Time to answer has expired. Hence, any potential claimant has failed to prosecute his or her case.
In addition, service and notice of this action were proper and adequate. As such, default is unlikely due to excusable neglect. The amount of damages is not at issue in this action. Accordingly, the Court hereby GRANTS plaintiff's motion for default judgment against the in rem defendant currency and its potential claimants.
Consequently, in rem defendant currency is forfeited to the United States. 21 U.S.C. § 881(a)(6). All right, title and interest in the defendant currency is hereby vested in the United States of America and all other claims thereto are barred.
The hearing on this instant motion currently scheduled for April 8, 2004, is VACATED.