Opinion
1:06-CV-01259-OWW-SMS.
August 7, 2007
FINDINGS AND RECOMMENDATIONS TO GRANT PLAINTIFF'S MOTION TO STRIKE CLAIMANT GUILLERMO GOVEA'S ANSWER (DOC. 26)
Plaintiffs are proceeding with a civil action for forfeiture in rem in this Court. The matter has been referred to the Magistrate Judge pursuant to 28 U.S.C. § 636(b) and Local Rules 72-302(c)(3) and 72-303. Pending before the Court is Plaintiff's motion, filed on June 25, 2007, to strike the answer to the complaint filed by claimant Guillermo Govea on November 20, 2006. The motion was accompanied by a memorandum of points and authorities in support of Plaintiff's motion and the declarations of Autumn Magee and Stephanie Hamilton Borchers, with exhibits; it was served electronically on June 25, 2007, on Guadalupe Gamino, who is listed as counsel for claimant on the docket. No opposition has been filed by the claimant, who has not otherwise responded to the motion.
By separate order, the Court has vacated the hearing on the motion, and the matter has been submitted to the Court for decision.
I. Legal Standards
Plaintiff moves to strike the answer pursuant to Fed.R.Civ.P. 12(f), which provides as follows:
Upon motion made by a party before responding to a pleading or, if no responsive pleading is permitted by these rules, upon motion made by a party within 20 days after the service of the pleading upon the party or upon the court's own initiative at any time, the court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.
A court may strike a document that does not conform to the formal requirements of the pertinent rules of court. Transamerican Corp. v. National Union Fire Ins. Co. of Pittsburgh, Pa., 143 F.R.D. 189, 191 (N.D. Ill. 1992).
The purpose of a Rule 12(f) motion is to avoid the costs that arise from litigating spurious issues by dispensing with those issues prior to trial. Sidney-Vinstein v. A.H. Robins Co., 697 F.2d 880, 885 (9th Cir. 1983). Immaterial matter is defined as matter that "has no essential or important relationship to the claim for relief or the defenses being pleaded." Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir 1993) (quoting 5 Charles A. Wright Arthur R. Miller, Federal Practice and Procedure § 1382, at 706-07 (1990)), rev'd on other grounds, 510 U.S. 517 (1994). Immaterial portions of a pleading that do not give fair notice of a claim or defense may be stricken by the Court sua sponte or upon motion. Simmons v. Abruzzo, 49 F.3d 83, 86-87 (2nd cir. 1995). Impertinent matter is defined as "statements that do not pertain, and are not necessary, to the issues in question."Fantasy, Inc. 984 F.2d at 1527. Granting a motion to strike may be proper if it will make the trial less complicated or if allegations being challenged are so unrelated to plaintiff's claims as to be unworthy of any consideration as a defense and that their presence in the pleading will be prejudicial to the moving party. Id. Superfluous historical allegations are a proper subject of a motion to strike. See, e.g., Healing v. Jones, 174 F.Supp. 211, 220 (D.Ariz. 1959). Scandalous pleadings are those that reflect cruelly upon the defendant's moral character, use repulsive language, or detract from the dignity of the Court.Skadegaard v. Farrell, 578 F.Supp. 1209, 1221 (D.C.N.J. 1984), overruled on other grounds by Aitchison v. Raffiani, 708 F.2d 96 (3d Cir. 1983).
In this in rem action for forfeiture, both the general Federal Rules of Civil Procedure and the Supplemental Rules for Certain Admiralty and Maritime Claims (Supp. R.) apply, but the latter rules prevail if there is an inconsistency. Supp. R. A(1). Supp. R. G(1) provides that the rule governs a forfeiture action in rem arising from a federal statute; to the extent that Rule G does not address an issue, Supp. Rules C and E also apply.
Supp. R. G requires the claimant to file a claim and answer as follows:
(5) Responsive Pleadings.
(a) Filing a Claim.
(i) 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 must:
(A) identify the specific property claimed;
(B) identify the claimant and state the claimant's interest in the property;
(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 (b)(ii)(D).
(ii) Unless the court for good cause sets a different time, the claim must be filed:
(A) by the time stated in a direct notice sent under Rule G(4)(b);
(B) if notice was published but direct notice was not sent to the claimant or the claimant's attorney, no later than 30 days after final publication of newspaper notice or legal notice under Rule G(4)(a) or no later than 60 days after the first day of publication on an official internet government forfeiture site; or
(C) if notice was not published and direct notice was not sent to the claimant or the claimant's attorney:
(1) if the property was in the government's possession, custody, or control when the complaint was filed, no later than 60 days after the filing, not counting any time when the complaint was under seal or when the action was stayed before execution of a warrant issued under Rule G(3)(b); or
(2) if the property was not in the government's possession, custody, or control when the complaint was filed, no later than 60 days after the government complied with 18 U.S.C. § 985(c) as to real property, or 60 days after process was executed on the property under Rule G(3).
(iii) A claim filed by a person asserting an interest as a bailee must identify the bailor, and if filed on the bailor's behalf must state the authority to do so.
(b) Answer. A claimant must serve and file an answer to the complaint or a motion under Rule 12 within 20 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.
With respect to motions to strike, Supp. R. G(8)(c)(i)(A) provides:
(c) Motion To Strike a Claim or Answer.
(i) At any time before trial, the government may move to strike a claim or answer:
(A) for failing to comply with Rule G(5) or (6), or
(B) because the claimant lacks standing.
(ii) The motion:
(A) must be decided before any motion by the claimant to dismiss the action; and
(B) may be presented as a motion for judgment on the pleadings or as a motion to determine after a hearing or by summary judgment whether the claimant can carry the burden of establishing standing by a preponderance of the evidence.
II. Analysis
A. Duty to Respond
Plaintiff has established that in initiating and carrying the action forward, Plaintiff gave the required notice in order to cause the claimant's obligation to respond to arise.
On September 13, 2006, the complaint was filed alleging a claim for civil forfeiture in rem of the Defendant currency, which was seized on January 26, 2006, by the Drug Enforcement Administration (DEA) after discovery by the Stanislaus County Sheriff's Highway Interdiction Team, based on its having been furnished or intended to be furnished in exchange for a controlled substance, or being proceeds thereof, or being used or intended to be used to facilitate a violation of the statutes pertaining to controlled substances. (Cmplt. p. 2.) It was alleged that the claimant was the driver of the vehicle in which law enforcement found the funds; the claimant denied ownership of the money, informed law enforcement officers that it belonged to his employer, and agreed to sign, and signed, a disclaimer of interest in the property on January 26, 2006. (Cmplt. p. 4.)
Arrest of the property occurred on September 18, 2006, and complied with the requirements of Supp. R. 3(b) and (c). (Decl. of marshal dated September 18, 2006 [Doc. 5].)
Notice of the action, containing all the contents required by Supp. R. G(4) [description of the property, the time to file a claim, name of the government attorney to be served with the claim and answer], was published on September 26, and on October 3, 10, and 17, 2006, in the Modesto Bee, a newspaper of general circulation; thus, the publication met the requirements of Supp. R. G(4)(a) [once a week for three consecutive weeks].
Further, direct notice of the action was effectively given to the claimant as a known potential claimant when in September 2006 the complaint, warrant and summons for arrest, application and order for publication, and letter dated September 14, 2006, were served on Plaintiff by first-class mail service on his attorney, Guadalupe Gamino, who in turn acknowledged receipt of the documents on September 18, 2006. (Decl. of Borchers, Ex. A, letter and notice and acknowledgment of receipt.) The notice was of a type permitted by Supp. R. G(4)(b). The warrant, summons, and letter informed him that a verified claim had to be filed with the Court within thirty days of receipt of the letter, and an answer filed within twenty days of the filing of the claim. (Id.) This notice reflected the requirements of 18 U.S.C. § 983(a)(4)(A) and (B), which require that when the government files a judicial forfeiture complaint, a person claiming an interest may file a claims pursuant to the Supplemental Rules not later than 30 days after the date of service of the complaint or after the date of final publication, and shall file an answer not later than 20 days after the date of the filing of the claim. It also complied with the requirements of Supp. R. G(4).
Within the initial period permitted for a response, Plaintiff's counsel granted claimant an extension of time to file a claim and answer until November 18, 2006. (Decl. of Borchers, ¶ 3, Ex. B.) An answer was filed by attorney Gamino on behalf of claimant on November 20, 2006. The answer referred to a verified claim having been filed, denied the allegations of the complaint, and prayed for relief. It was not verified, but was signed by the claimant's counsel.
Plaintiff's counsel declares that no verified claim had been filed and that this was mentioned to claimant's counsel at the scheduling conference held March 9, 2007, where after counsel claimed that such a claim had been filed, he was advised to check the docket. (Borchers Decl. ¶¶ 5-6) The Court's review of its own docket reveals that no claim was filed. Plaintiff's counsel declares that on March 22, 2007, she sent a letter to attorney Gamino, instructing claimant to filed a verified claim in accordance with the rules. The letter was returned unclaimed. (Decl. ¶ 6, Ex. C.) The letter informed Gamino of the need for a claim and the government's intention to move to strike the answer or take other appropriate action if no verified claim was filed by April 15, 2007. Autumn Magee, a government paralegal assigned to this forfeiture action, declares that on May 17, 2007, she was contacted by Gamino, who was informed the government was trying to mail the letter to the claimant as well; counsel stated that it was his understanding that his office had sent the claim in as requested, but eh would be in the office the following day and would call Magee at that time. (Magee Decl. ¶ 3.) Counsel for Plaintiff has not had any communication with Gamino or the claimant since that time. (Borchers Dec. ¶ 9.)
Supp. R. G(8) expressly provides for a motion to strike a claim or answer for failing to comply with Rule G(5), or because the claimant lacks standing.
Granting a motion to strike an answer is appropriate for one who does not file a claim in compliance with the pertinent rules.United States v. $38,570 U.S. Currency, 950 F.2d 1108, 1112-15 (5th Cir. 1992) (upholding the granting of a motion to strike under former Supplemental Rules where the claimant had constructive notice that the time for filing a claim had begun to run, and he filed an answer and then an untimely claim); United States v. $50,200.00 in U. S. Currency, 76 F.Supp.2d 1247 (D.Wyo. 1999) (granting a motion to strike an answer where the claimants had failed to file a timely verified claim contrary to the express requirements of the rules and where there were no mitigating factors, good faith attempt to file a timely claim, detrimental reliance on misinformation from a governmental agency or expenditure of considerable resources in preparing the case for trial). In the Ninth Circuit, several policies support the requirement of strict compliance with the Supplemental Rules in filing a claim, including the need to inform the Court that there is a claimant to the property who wants it back and intends to defend it, to avoid waste or unnecessary expenditure of judicial resources, and to further the important interest in the finality of judgments ultimately entered. See, United States v. Real Property, 135 F.2d 1312, 1317 (9th Cir. 1998).
Here, the claimant was given repeated opportunities to file a claim and was notified clearly of the government's intention to move to strike the answer; however, the claimant did not file a claim. Despite an attempt at service on the claimant's counsel and repeated reminders, the claimant's counsel has not undertaken any effort to file a claim. There has been no compliance with the requirements of the governing Supplemental Rules. Further, it is alleged and established that the claimant filed a notice of disclaimer in the action.
One who does not file a verified claim pursuant to the Supplemental Rules lacks standing in the forfeiture action.United States v. Real Property, 135 F.2d 1312, 1316-1318 (9th Cir. 1998) (citing additional authority from the First, Fifth, Second, and Eighth circuits). Accordingly, the answer is immaterial and impertinent, and should be stricken.
III. Recommendation
Accordingly, it IS RECOMMENDED that
1) Plaintiff's motion to strike the answer of claimant Guillermo Govea BE GRANTED, and
2) The Clerk BE DIRECTED to strike the answer filed on November 20, 2006.
This report and recommendation is submitted to the United States District Court Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Rule 72-304 of the Local Rules of Practice for the United States District Court, Eastern District of California. Within thirty (30) days after being served with a copy, any party may file written objections with the Court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Replies to the objections shall be served and filed within ten (10) court days (plus three days if served by mail) after service of the objections. The Court will then review the Magistrate Judge's ruling pursuant to 28 U.S.C. § 636(b)(1)(C). The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
IT IS SO ORDERED.