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United States of America v. James E. Rollins

October 5, 2011

UNITED STATES OF AMERICA,
PLAINTIFF,
v.
JAMES E. ROLLINS, SR., DEFENDANT.



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

MEMORANDUM AND ORDER

Now before the Court are defendant Jame E. Rollins, Sr.'s motions to dismiss writ of execution and to cease post judgment execution (Doc. 720) and for reconsideration; i.e., a statement of exceptional circumstances requesting leave to file a reply brief (Doc. 735). For the following reasons, the motions are DENIED.

INTRODUCTION AND BACKGROUND

On July 11, 2007, this Court entered a judgment against defendant in the sum of $1,200.00 (Doc. 551). Thus, pursuant to the Federal Debt Collection Procedures Act of 1990, 28 U.S.C. § 3203(c)(1), the government motioned for a writ of execution against "property in which the debtor has possession, custody, or control, and in which the debtor has a substantial nonexempt property interest which may be levied upon for payment" of the judgment (Doc. 711). The Court granted the government's motion for writ of execution on October 1, 2009 (Doc. 714).

Thereafter, the Financial Litigation Unit of the United States Attorney Office determined unclaimed funds existed in defendant's name. The Illinois State Treasurer confirmed that Illinois Farmers Insurance Company held $27.06 in defendant's name (Doc. 724, ex. D). Thus, on October 1, 2009, a writ of execution issued to apply the $27.06 against the outstanding balance of defendant's judgment (Doc. 716). The docket demonstrates defendant received service of the writ of execution on October 28, 2009 (Doc. 718).

Defendant filed the instant pro se motion to dismiss the writ of execution on December 11, 2009 (Doc. 720). The government responded to defendant's motion on January 7, 2010 (Doc. 724). Defendant then filed a reply to the government's response (Doc. 733) in violation of LOCAL RULE 7.1(c) and (g), as he did not state exceptional circumstances for the reply. See SDIL-LR 7.1(c), (g). Thus, the Court allowed defendant 14 days to file a statement of exceptional circumstances as to why defendant's reply brief required consideration (Doc. 734). Defendant thereafter filed a document titled "Statement of Exception Circumstances," contending the government's response "raised new issues which are material to the disposition of the question before this Court" (Doc. 735).

ARGUMENT AND ANALYSIS

1.Defendant's motion for reconsideration (Doc. 735) is DENIED

Defendant filed a reply to the government's response without alleging exceptional circumstances for the reply. Thus, the Court ordered defendant to file a statement of exceptional circumstances. Although the nature of defendant's argument is not entirely clear to the Court, it appears defendant contends a reply brief is necessary as the government attached false or misleading documents to its response and made fraudulent statements regarding defendant's notice of the writ of execution. Defendant contends these fraudulent documents and statements raise new arguments that require addressing in a reply brief (Doc. 735, p. 4).

Under LOCAL RULE 7.1(c) and (g), "[r]reply briefs are not favored and should be filed only in exceptional circumstances. The party filing the reply brief should state the exceptional circumstances." (emphasis in original). SDILLR 7.1(c), (g). Further, "reply briefs are not to exceed 5 pages." SDIL-LR 7.1(d). Thus, pursuant to LOCAL RULE 7.1(c) and (g), a reply brief must set forth exceptional circumstances necessitating supplemental authority; such as a change in law or facts since the filing of its motion, or other exceptional circumstances the Court, in its discretion, believes warrant a reply brief.

Defendant's motion does not state exceptional circumstances warranting the filing of a reply brief. The government's response does not raise new arguments. It merely responds to defendant's allegations. Further, it attaches documents verifying its arguments that do not appear fraudulent. Moreover, defendant's reply brief is 11 pages (Doc. 733). Accordingly, it exceeds the 5-page limit. Thus, plaintiff's motion for reconsideration alleging exceptional circumstances requiring the filing of a reply brief (Doc. 735) is DENIED.

2.Defendant's motion to dismiss the writ of execution (Doc. 720) is DENIED

a.The property at issue was in fact in defendant's possession, custody, or control

Defendant argues the writ of execution requires dismissal as the government has "not stated in fact that the Defendant had possession, custody, or control of and, a substantial non-exempt interest in property" (Doc. 720, p. 2). Further, defendant contends the government merely speculated the property at issue belonged to defendant; thus, the writ is based on uncertainty (Doc. 720, p. 2). In addition, defendant argues he did not ...


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