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United States v. $15

United States District Court, D. Oregon

December 18, 2013

UNITED STATES OF AMERICA, Plaintiff,
v.
$15,333.00 IN UNITED STATES CURRENCY, in rem, Defendant

For Plaintiff: S. AMANDA MARSHALL, United States Attorney, LESLIE J. WESTPHAL, Assistant United States Attorney, Portland, Oregon.

DON L. BROWN, Claimant, Pro se, Everett, Washington.

OPINION

Page 1230

OPINION AND ORDER

Malcolm F. Marsh, United States District Judge.

On November 15, 2013, plaintiff in this civil forfeiture proceeding moved to strike

Page 1231

the claim of Don L. Brown on account of claimant's repeated failure to comply with court orders and discovery rules. Claimant is proceeding pro se in this matter. As of the date of this order, claimant has not filed, any response to plaintiff's motion.

FACTUAL BACKGROUND

Plaintiff initiated this action on February 16, 2012. On March 28, 2012, claimant filed a claim on the defendant currency, and the parties began litigating this action. On August 2, 2012, claimant informed plaintiff's counsel by telephone that he was in the process of deciding whether to hire counsel or proceed pro se . Declaration of Leslie J. Westphal (#23) ¶ 2 (Westphal Dec.). Plaintiff's counsel asked claimant to call back by the end of the following week to inform her of his decision regarding counsel, and informed claimant that if she did not hear back from him, plaintiff would begin discovery. Id. Plaintiff's counsel did not hear back from claimant. Id.

On August 23 and 29, 2012, respectively, plaintiff served its First Set of Interrogatories and Request for Admissions on claimant. Decl. of Jessica L. Jones (#15), exhs. A-C. Having received no response to either request, plaintiff's counsel sent a letter to claimant on November 5 reminding him about the interrogatories and request for admissions, advising him of the consequences of failure to respond, and granting him an additional week to respond to the requests. Id. exh. D. Claimant did not respond.

Prior to filing a Motion to Strike Claim, plaintiff called claimant on January 24, 2013 and January 28, 2013, but was unable to reach him. Pl.'s Mot. to Strike Claim (#13). Accordingly, on January 29, 2013, plaintiff moved to strike Mr. Brown's claim, and alternatively moved for summary judgment largely based on the admissions that were deemed admitted as a result of claimant's failure to respond.

A week later, on February 5, 2013, claimant called plaintiff's counsel. Westphal Dec. ¶ 4. Claimant represented to plaintiff's counsel that he had not received plaintiff's motion to strike because he had not checked his mail. Id. Plaintiff's counsel reminded claimant that he had not responded to plaintiff's discovery requests, and needed to respond to plaintiff's motion to strike to avoid forfeiture of the defendant currency. Id. Nonetheless, claimant did not immediately respond to plaintiff's motion, and, on February 19, 2013, the court issued an order advising claimant that he must respond by March 5 and that failure to do so would result in the striking of his claim. CR #17.

On March 5, claimant responded to plaintiff's motion, advising the court that he was attempting to obtain legal counsel and requesting additional time to do so. CR #19, 20. On March 25, 2013, the court issued a summary judgment advice notice instructing claimant to file his substantive opposition to the government's motion within 30 days. CR #25. On April 19, 2013, claimant responded by way of filing a motion to suppress, his responses to the Request for Admissions served on him in August of 2012; and a motion for an extension of time seeking to have his responses to the Request for Admissions deemed timely. CR #27, 28.

On July 22, 2013, after a round of briefing, the court construed claimant's motion for extension of time to respond to the request for admissions as a motion to withdraw admissions, granted the motion, and deemed claimant's responses timely. The court, however, " admonished" claimant that " pro se litigants must comply with the rules of civil procedure and court-imposed deadlines that govern other litigants." CR #42 at 2. The court additionally denied

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plaintiff's motion to strike and for summary judgment, and determined that an evidentiary hearing was necessary to resolve claimant's motion to suppress. Id. at 2-5. In anticipation of holding a hearing, the court ordered the parties to produce witness lists, witness statements, and an estimated hearing length within 45 days. Id. at 5.

On September 5, 2013, plaintiff filed its witness list, witness statements, and estimated hearing length. CR #44. Rather than comply with the court's order, claimant filed a " Motion for Return of Illegally Seized Money" on September 13, 2013 that did not include any materials relevant to the evidentiary hearing, but ...


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