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United States v. $61

September 18, 2009

UNITED STATES OF AMERICA, PLAINTIFF,
v.
$61,500.00 UNITED STATES CURRENCY, DEFENDANT.



The opinion of the court was delivered by: Herndon, Chief Judge

ORDER

Introduction

Before the Court is Government's Second Renewed Motion for Entry of Default and for Judgment of Forfeiture. (Doc.21). In the Motion, the Government argues that Claimant, Victor Pena, failed to comply with the Court's July 8, 2008 order because (a) he failed to timely file the answer; and (b) the pleading he did file was not an answer at all, but instead was another claim. Also before the Court is Claimant Victor Pena's declaration to show good cause for the untimely filing of his "answer." (Doc. 20).

Background

On October 1, 2008, the Government filed its Complaint for forfeiture. (Doc. 2). Government published the forfeiture at the official government website, www.forfeiture.gov, for thirty consecutive days beginning October 5, 2008. (Doc. 6). Additionally, Government mailed a copy of the Notice of Civil Judicial Forfeiture to Mike Montes, Jr. on October 1,2008 by regular and certified mail. (Doc. 3). Purportedly, Mr. Montes is an attorney who filed a claim for the subject currency during the administrative forfeiture proceedings on behalf of his client, Victor Pena. The Notice advised Mr. Montes that a claim for the subject currency had to be filed by December 5, 2008, in accordance. With Rule G(5)(a)(i) of the Supplemental Rules for Certain Admiralty and Maritime Claims ("Rule G(5)(a)(i)") and 18 U.S.C. § 983.

On December 3, 2008, Mr. Montes faxed to the U.S. Attorney a document entitled "Notice of Claim/Interest to Notice of Civil Forfeiture purporting to set forth a claim on the subject currency on behalf of Victor Pena. (Doc. 14). The Notice of Claim/Interest was not filed with the Court. On January 22, 2009, Government mailed Mr. Montes a letter advising him that the Notice needed to be filed in Court and giving him instructions on how to register in this judicial district. (Docs. 3 & 14). Further, on January 22, 2009, Government filed its Notice of Filing of Certificate of Publication, which certified that the Notice of Civil Forfeiture was posted on the official government website, www.forfeiture.gov, for at least 30 consecutive days as required by law. (Doc. 3).

On February 2, 2009, attorney Oscar Acevedo entered his appearance on behalf of Victor Pena's ("Claimant") claim for the subject currency. (Doc. 7). On April 3, 2009, after a purported phone conversation with the Assistant United States Attorney on April 2, 2009, Mr. Acevedo filed a "Notice of Claim/Interest to Notice of Judicial Forfeiture. (Doc. 8). However, that document was stricken by the Clerk the same day. (Doc. 9). The parties did not file anything further in the case until June.

On June 22, 2009, Government filed a Motion for Default and a Motion for Judgment of Forfeiture. (Doc. 11). The same day, Claimant filed an "Emergency Motion for Release of Property Pending Forfeiture And/Or Evidentiary Hearing." (Doc. 12). Government responded on July 2, 2009 and argued that the "claim" being asserted by the Claimant was filed far too late to be cognizable and that the claimant's request for emergency release of the subject currency should be rejected under applicable law. (Doc. 13).

Given Claimant's attempts to lodge a claim, Magistrate Judge Frazier entered an order on July 8, 2009 reinstating Claimant's April 2, 2009 "Notice of Claim/Interest to Notice of Judicial Forfeiture" and construed it as a proper claim filed pursuant to Rule G(5)(a)(i). Further, the July 8th Order gave Claimant 20 days from the date of the Order to file a responsive pleading to the Forfeiture Complaint and warned Claimant that failure to file such a pleading could result in the entry of default judgment regarding the subject currency. On July 29, 2009, Government filed a Renewed Motion for Order of Default and for Judgment of Forfeiture. (Doc. 17). The gist of the Motion was that Claimant failed to timely file a responsive pleading as the Court ordered on July 8th. Shortly thereafter, on July 29, 2009, Claimant filed a responsive pleading. (Doc. 18).

On August 6, 2009, the Court struck Claimant's untimely filed "answer," but granted Claimant until August 11, 2009 to show good cause for his failure to timely file his answer and to demonstrate why the Court should not enter default judgment in favor of Government. (Doc.19). Claimant timely filed a declaration responding to the Court's August 6, 2009 order. (Doc. 20). Claimant's explanation for failing to timely file is that because of business travel he was unable to reach his attorney in time to verify the answer that was due on July 28, 2009.*fn1

Analysis

Rule G(5)(a)(ii)(B) of the Supplemental Rules for Certain Admiralty and Maritime Claims provides that a claimant's claim must be filed within 60 days after the first day of publication on an official internet government forfeiture site. FED.R. CIV.P.SUPP.G(5)(a)(ii)(B).Rule G(4)(b)(ii)(C) of the Supplemental Rules for Certain Admiralty and Maritime Claims provides that "an answer or a motion under Rule 12 must be filed no later 20 days after filing the claim." FED.R.CIV.P.SUPP.

Rule G(4)(b)(ii)(C). Strict compliance with the supplemental rules is typically required. See e.g., United States v. Commodity Account No. 549 54930 at Saul Stone & Co., 219 F.3d 595, 597-598 (7th Cir. 2000).

While the district courts have some discretion to allow a late claim, that discretion is not unbounded. See United States v. U.S. Currency in the amount of $103, 387.27, 863 F.2d 555 (7th Cir. 1988). The court should consider such factors as (1) the time the claimant became aware of the seizure; (2) whether the government encouraged delay; (3) the reasons offered for the delay; (4) whether the claimant advised the court and the government of his interest in the property before the claim deadline; (5) whether the government would be prejudiced; (6) the sufficiency of the pleadings in meeting the basic requirements of the verified claim; and (7) ...


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