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United States v. Approximately 64 Dogs

United States District Court, C.D. Illinois, Rock Island Division

January 26, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
APPROXFMATELY 64 DOGS, Defendants.

          ORDER

          SARA DARROW, UNITED STATES DISTRICT JUDGE

         Before the Court are the United States' ("the Government") Motion to Strike Claim and Answer Filed by Terrill McDuffy and For Entry of Default, ECF No. 33, the Government's Motion to Strike Claim and Answer Filed by Algerron Goldsmith, Sr. and for Entry of Default, ECF No. 35, the Government's Motion to Strike Claim Filed by Demarlo McCoy and for Entry of Default, ECF No. 19, the Government's Motion to Strike Claim and Answer Filed by Sherrick Houston, ECF No. 40, the Government's Motion to Strike Claim Filed by Andre Lidell and for Entry of Default, ECF No. 41, Motion of Disposition by Claimant Terrill McDuffy, ECF No. 31, Motions for Hearing by Algerron Goldsmith, Sr, ECF No. 30, and Terrill McDuffy, ECF No. 32, and the Government's Motion to Dismiss Eight Seized Dogs as Defendants, ECF No. 34. For the following reasons, the Government's motions are GRANTED. The Claimants' motions for hearing, ECF No. 30 and ECF No. 32, are MOOT. McDuffy's Motion of Disposition, ECF No. 31, is DENIED.

         BACKGROUND

         On April 14, 2016, the United States Marshals seized sixty four pit bull type dogs as a result of an investigation into a dog-fighting operation. Terrill McDuffy, Algerron Goldsmith, Sr., Demarlo McCoy, Sherrick Houston, and Andre Lidell were residents at the locations from which the dogs were seized.[1]

         Terrill McDuffy filed a claim on May 13, 2016 stating that he had not participated in any dog-fighting, and requesting that his “listed item[s], ” including nine pit bull type dogs be returned to him. McDuffy's Claim, ECF No. 11. The claim was not verified by oath or affirmation, nor was it served on the appropriate attorney for the United States. Id. McDuffy filed an answer on June 7, 2016, McDuffy's Ans. 2-3, ECF No. 22, denying all allegations in the Verified Complaint pertaining to him, though his answer was not served on the appropriate attorney for the United States. Mot. Strike McDuffy's Pleadings 7, ECF No. 33. Subsequently, one of the nine seized dogs died at the American Society for the Prevention of Cruelty to Animals (“ASPCA”), id. at 3, and another, Brownie, was the subject of this Court's previous order allowing the ASPCA to humanely euthanize him due to severe behavioral problems and reduction in his quality of life. Dec. 2, 2016 Order on Mot. Disposition, ECF No. 28. The remaining defendant dogs seized from McDuffy's residence are: IL-11D-G1; IL-11D-G2; IL-11D-F1; IL-11D-F2; IL-11D-F4; IL-11D-L1; IL-11D-I1.

         Algerron Goldsmith, Sr. filed an unverified claim on May 18, 2016, requesting that four dogs and a variety of items seized from his residence be returned to him. Goldsmith's Claim, ECF No. 15. The seized dogs included: IL-4E-01; IL-4E-02; IL-4E-03, and IL-4E-04. Mot. Strike Goldsmith Claim and Ans. 2, ECF No. 35. On June 7, 2016, Goldsmith filed an unsigned answer. Goldsmith's Ans., ECF No. 20. In it, he denied all of the allegations in the Complaint that pertained to him. Id. Goldsmith did not serve his answer on an attorney for the United States.

         DeMarlo McCoy filed a claim on May 17, 2016, requesting his “things back.” McCoy's Claim, ECF No. 14. The claim was not verified by oath or affirmation, id., nor was it served on the appropriate attorney for the United States. Mot. Strike McCoy's Claim 5, ECF No. 39. Two pit bull type dogs were seized from McCoy's residence: one brindle male, IL-10C-01, and one black female, IL-10C-02. Mot. Strike McCoy's Claim 2. One of those dogs, the brindle male named Taz, was the subject of this Court's previous order allowing humane euthanasia by the ASPCA. Dec. 2, 2016 Order on Mot. Disposition. McCoy has not filed an answer.

         Sherrick Houston filed an unverified claim on May 10, 2016. Houston's Claim, ECF No. 9. Houston did not sign the claim under penalty of perjury and did not serve the claim on any government attorney. Id. In addition to several items including digital cameras, cell phones, and a “rape stand” used for breeding dogs, Houston claimed “one [white and tan] male pit bull” and “one [black] female pitbull.” Houston's Claim. The Government identifies the dogs respectively as IL3A01 and IL3A02. Mot. Strike Houston's Claim Ans., ECF No. 40. Houston filed an answer on June 7, 2016. Houston's Ans., ECF No. 21. Houston denied all allegations pertaining to him. See id.

         Andre Lindell filed his unverified claim on May 16, 2016. See Lindell's Claim, ECF No. 13, requesting that the “attached items” be returned to him; none of the defendant dogs were listed on the attached FBI property receipt. Id. Ten pit bull type dogs were seized from Lindell's residence: three adult males (IL8B02, IL8B04, IL8B07); four adult females (IL8B01, IL8B03, IL8B05, IL8B06), and three puppies (IL8B08, IL8B09, IL8B10). One of the dogs gave birth to puppies after seizure, five of which survived. Mot. Strike Lidell's Claim 3, ECF No. 41.

         The Government provided notice of the action and served Verified Complaints by certified mail and U.S. mail to McDuffy, Goldsmith, McCoy, Houston, and Lindell (hereinafter, “the Claimants”). See Notice of Civil Forfeiture Action, ECF No. 3. Notice of the action included instructions for filing a timely claim and answer and the name of the government attorney on whom those pleadings should be served. Id. at 2. The Government published notice of the forfeiture on the official government website, www.forfeiture.gov, as required by Rule G(4)(a)(iv)(C). Declaration of Publication 5, ECF No. 23. The last publication occurred on June 22, 2016. Id.

         The Government, citing procedural deficiencies, now moves for the Court to strike the pleadings filed by the Claimants. It further moves for the Court to enter default against six of the defendant dogs seized from McDuffy's residence, four defendant dogs seized from Goldsmith's residence, the one remaining defendant dog seized from McCoy's residence, two dogs seized from Houston's residence, and ten defendant dogs seized from Lindell's residence. Additionally, the Government seeks to dismiss eight more dogs, including the deceased dog seized from McDuffy's residence. Goldsmith and McDuffy have both filed motions requesting hearings. ECF Nos. 30, 32.

         DISCUSSION

         I. Motions to Strike Pleadings and Enter Default

         a. ...


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