Unpublished Disposition, 933 F.2d 1018 (9th Cir. 1978)

MEMORANDUM^** 

Juan Sologaistoa appeals from dismissal of his claim. The district court found that he lacked standing to contest the forfeiture of two Cessna 210 aircraft. We affirm.

DISCUSSION

This case is very similar to an Eighth Circuit case, United States v. One 1945 Douglas C-54 (DC-4) Aircraft, 604 F.2d 27, 29 (8th Cir. 1979), cert. denied, 454 U.S. 1143 (1982), which was cited with approval by the Ninth Circuit in United States v. One Parcel of Land, 902 F.2d 1443, 1444 (9th Cir. 1990). In One Douglas Aircraft, the government seized an aircraft intended for use in drug activity. Stumpff filed a claim in the forfeiture action. Although title was in Stumpff's name, Kammerer supplied all of the purchase money for the aircraft. The court stated, " [i]t is the owner or owners of the res who have standing to challenge a forfeiture. Broadly speaking, ownership may be defined as having a possessory interest in the res, with its attendant characteristics of dominion and control. The possession of bare legal title to the res may be insufficient to establish ownership." 604 F.2d at 28 (citations omitted) (emphasis added). The Eighth Circuit ultimately did not determine whether Stumpff had standing because the district court had not ruled on the issue so the court remanded the case. Nevertheless, the appellate court strongly indicated that it did not think Stumpff had standing:

The mere fact that the certificate of aircraft registration was issued to Stumpff does not determine rights of ownership in the aircraft as between Kammerer and Stumpff.... Significant is the fact that on January 1, 1978, Stumpff, at Kammerer's request, tendered a blank bill of sale for the aircraft to Kammerer. Kammerer did not complete the document or register it with the FAA so as to openly transfer title to himself, but instead used it as collateral to obtain bond money after his arrest. This transaction seems to indicate that Kammerer, and not Stumpff, exercised dominion and control over the aircraft and thus was its true owner.

Id. at 29. In this case, a Customs agent's affidavit attached to the complaint indicates that Sologaistoa stated that the purchase money was being supplied by two Mexican purchasers, presumably Jorge Manuel Sanchez-Pena and Francisco Baylis-Flores. And, although the bills of sale list Sologaistoa as the purchaser, the sales invoices issued by Sologaistoa's company show the purchasers for both planes to be Sanchez-Pena and Baylis-Flores with addresses in Mexico. Unlike One Douglas Aircraft, there is no evidence that Sanchez-Pena and Baylis-Flores used the sales invoices as collateral. There is other telling evidence, however, that Sologaistoa did not establish an adequate interest in the aircraft. At least one of the aircraft was being prepared for shipment to Mexico indicating that the owners lived there, and not in Arizona. And, perhaps the most significant evidence are Sanchez-Pena's and Baylis-Flores's claims to the aircraft which were dismissed due to their failure to comply with a discovery order. Their subsequent attempt to assign their interests to Sologaistoa is not only a flimsy attempt to circumvent the court's discovery order, but it suggests that they are the only owners capable of asserting standing in the forfeiture action.

Sologaistoa's lack of interest in the aircraft is underscored by the fact that he does not stand to lose any money from the forfeiture. The only possible liability he could have would be if Sanchez-Pena and Baylis-Flores sued him for breach of contract based on his failure to deliver the planes. They could not succeed in such a suit against him, however, due to the preclusive effect of the involuntary dismissal of their claims. If Sanchez-Pena and Baylis-Flores brought a breach of contract suit in Arizona state court, Arizona Rule of Civil Procedure 41(b) would apply. This rule states:

For failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against him.... Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join a party under Rule 19, operates as an adjudication upon the merits.

If they brought an action in federal court, there is a comparable rule. See Fed. R. Civ. P. 41(b). The district court dismissed Sanchez-Pena's and Baylis-Flores's claims for failure to comply with a court order. Such a dismissal, in Arizona and federal court, operates as an adjudication upon the merits. Sanchez-Pena and Baylis-Flores therefore are forever barred from claiming any interest in the aircraft, and accordingly from claiming that the money was brought into the United States lawfully. Moreover, it appears that Sologaistoa has done what he can; the loss of the aircraft must be laid at the feet of Sanchez-Pensa and Baylis-Flores.

Thus, Sologaistoa established a nominal interest, at best, in the aircraft, and consequently did not carry his burden of proving standing. See One Parcel of Land, 902 F.2d at 1445 (court affirmed district court's finding that claimant "failed to meet his burden of proving more than nominal ownership"). The judgment of the district court is AFFIRMED.