United States of America v. Real Property located at 1 Mile Up Hennessey Road, Burnt Ranch, California, APN: 008-430-02, No. 2:2009cv01940 - Document 21 (E.D. Cal. 2010)
Court Description: ORDER granting 17 Motion to Strike signed by Judge Garland E. Burrell, Jr on 2/2/10. (Kaminski, H)
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United States of America v. Real Property located at 1 Mile Up Henness...California, APN: 008-430-02 Doc. 21 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 17 18 19 UNITED STATES OF AMERICA, ) ) Plaintiff, ) ) v. ) ) REAL PROPERTY LOCATED AT 1 MILE UP ) HENNESSEY ROAD, BURNT RANCH, ) CALIFORNIA, TRINITY COUNTY, ) APN: 008-430-02, INCLUDING ALL ) APPURTENANCES AND IMPROVEMENTS ) THERETO, ) ) Defendant. ) ) 2:09-cv-1940-GEB-KJM ORDER GRANTING THE UNITED STATES’ MOTION TO STRIKE CLAIM AND ANSWER OF THOMAS PICKLE Plaintiff, the United States of America, filed a motion on 20 January 7, 2010 under Rule G(8)(c) of the Supplemental Rules for 21 Admiralty or Maritime Claims and Asset Forfeiture Actions 22 (“Supplemental Rules”), in which it seeks an order striking the claim 23 and answer filed by Thomas Pickle. 24 has not filed a verified claim as required under the Supplemental 25 Rules, and therefore, he lacks standing as a claimant in this matter. 26 Pickle has not filed an opposition. 27 motion to strike Pickle’s claim and answer is GRANTED. The United States argues Pickle For the reasons stated below, the 28 1 Dockets.Justia.com 1 2 I. BACKGROUND This case is an in rem forfeiture action brought by the 3 United States against the real property located at 1 mile up Hennessey 4 Road in Burnt Ranch, California (the “defendant real property”). 5 United States filed a verified complaint on July 16, 2009, in which it 6 seeks to forfeit the defendant real property based on its allegations 7 that the defendant real property was used or intended to be used to 8 facilitate the distribution of marijuana in violation of 21 U.S.C. § 9 841 et seq. (Verified Compl. ¶¶ 4-9.) Thomas Pickle is the record 10 owner of the defendant real property. (Id. ¶ 3.) 11 The The United States gave Pickle direct notice of this action 12 three ways. 13 of the complaint and related documents to Pickle by certified mail. 14 (Teglia Decl. ¶ 5.) 15 signed on July 20, 2009 by Selma Pickle. 16 2009, the United States Marshal personally served Pickle with the 17 complaint and related documents, including a notice of complaint, 18 application and order for publication, lis pendens, and an order 19 requiring joint status report. 20 United States Marshal posted a copy of the complaint and notice of 21 complaint on Pickle’s residence. 22 August 19, 2009, and continuing for at least thirty consecutive days, 23 the United States published notice of the forfeiture action on the 24 official federal government website, www.forfeiture.com. 25 A declaration of publication was filed on September 21, 2009. 26 First, on July 16, 2009, the United States mailed a copy A certified mail receipt for these documents was (Id.) (Id.) Then, on July 30, (Id.) Also on July 30, 2009, the In addition, beginning on (Id. ¶ 6.) (Id.) On August 17, 2009, Pickle’s attorney, Editte Lerman, filed 27 a “Claim Against Real Property Subject to Forfeiture Action” on 28 Pickle’s behalf. Lerman verified the claim for Pickle, stating: 2 1 This claim is verified by the attorney for the reason that the party is absent from the county where he or she has his or her office, while the attorney has read the claim and that he or she is informed and believes the matter therein to be true and on that ground alleges that the matters stated therein are true. 2 3 4 5 (Claim Against Real Property ¶ 2:20-24.) 6 answer filed on September 9, 2009. 7 Lerman also verified the Assistant United States Attorney Kristin Door telephoned 8 Lerman on or about August 19, 2009, and left a message with her 9 receptionist, relaying that the claim filed was defective since it was 10 not signed by Pickle. 11 Lerman, advising her of the claim’s defect, and giving her until 12 August 28, 2009 to file a properly verified claim. 13 On September 11, 2009, Door again telephoned Lerman’s office and left 14 another message with the receptionist concerning the defective claim. 15 In addition, on September 30, 2009, Door sent Lerman an e-mail 16 advising her that she would file a motion to strike the defective 17 claim and answer if Lerman did not file a claim signed by Pickle. 18 (Id. ¶ 7.) 19 (Door Decl. ¶ 4.) Door then wrote a letter to (Id. ¶ 5, Ex. 1.) On October 2, 2009, Lerman responded to Door’s e-mail, 20 relating that “Mr. Pickle is in somewhat of a ‘pickle’” as “[p]rior to 21 the filing of the complaint in the . . . forfeiture matter, Mr. Pickle 22 went hiking in the mountains” and “has been missing since.” 23 Ex. 3.) 24 vehicle in Del Norte County and that he might have been the victim of 25 foul play. 26 or “on vacation in the mountain wilderness.” 27 28 (Id. ¶ 8, Lerman wrote that the Forest Service had found Pickle’s (Id.) Lerman concluded that Pickle was either “missing” (Id.) Door responded by e-mail that same day, telling Lerman to keep her informed of Pickle’s whereabouts and that she would not file 3 1 a motion to strike Pickle’s claim for thirty days. 2 January 6, 2010, Door had not heard further from Lerman. 3 II. 4 (Id. ¶ 9.) As of (Id. ¶ 10.) DISCUSSION The United States argues that Pickle’s claim is defective 5 since he has not verified the claim as required by Supplemental Rule 6 G(5)(a)(i). 7 defect, Pickle lacks standing as a claimant in this action and his 8 claim and answer should be stricken. 9 The United States contends that as a result of this The Supplemental Rules as well as the Federal Rules of Civil 10 Procedure govern this action.1 11 prescribes the requirements for filing a claim to contest a forfeiture 12 action, providing: “The claim must: (A) identify the specific property 13 claimed; (B) identify the claimant and state the claimant’s interest 14 in the property; (C) be signed by the claimant under penalty of 15 perjury; and (D) be served on the government attorney . . . .” 16 R. G(5)(a)(i)(emphasis added). 17 the government to “move to strike a claim or answer” “at any time 18 before trial” “for failure to comply with Rule G(5) . . . [or] because 19 the claimant lacks standing.” 20 Supp. R. G(1). Supplemental Rule G(5) Supp. Supplemental Rule G(8)(c)(i) allows A claimant seeking to contest a civil forfeiture must 21 demonstrate both Article III and statutory standing. 22 One 1985 Cadillac Seville, 866 F.2d 1142, 1148 (9th Cir. 1989). 23 establish statutory standing, the claimant must comply with the 24 procedural requirements provided for in the Supplemental Rules. 25 United States v. Real Property Located In Fresno County, 135 F.3d United States v. To See 26 27 28 1 Supplemental Rule G was adopted on December 1, 2006 to govern civil in rem forfeiture actions. Prior to the adoption of Supplemental Rule G, Supplemental Rule C(6) governed pleading requirements in civil in rem forfeiture actions. 4 1 1312, 1316-17 (9th Cir. 1998) (holding that failure to comply with 2 Supplemental Rules precluded claimant from establishing standing in 3 forfeiture action); see also United States v. $487,825.00 in U.S. 4 Currency, 484 F.3d 662, 664 (3d Cir. 2007)(“To establish statutory 5 standing in a forfeiture case, the claimant must comply with the 6 procedural requirements set forth in [Supplemental Rule G].”) 7 most significant requirement is that the claimant . . . timely file a 8 verified statement of interest, as required by [Rule G(5)(a)(i))].” 9 $487,825.000 in U.S. Currency, 484 F.3d at 664. “The “The requirement that 10 the claimant file a timely verified statement serves two purposes. 11 First, it forces claimants to come forward as quickly as possible 12 after the initiation of forfeiture proceedings, so that the court may 13 hear all interested parties and resolve the dispute without delay. 14 Second, it minimizes the danger of false claims by requiring claims to 15 be verified or solemnly affirmed. 16 is no mere procedural technicality.” 17 citations omitted); see also United States v. Commodity Account no. 18 549 54930, 219 F.3d 595, 597 (7th Cir. 2000)(“[V]erification is an 19 essential element of any claim because of the substantial danger of 20 false claims.” (quotations and citations omitted)). 21 the claimant fails to file a verified claim, he will not have standing 22 as a party to the action.” 23 No. 1:07-CV-00300-OWW-GSA, 2008 WL 5120737 (E.D. Cal. Dec. 5, 24 2008)(citing United States v. One Dairy Farm, 918 F.2d 310, 311 (1st 25 Cir. 1990)); United States v. Real Property Located in Merced County, 26 No. 1:03-cv-6613-AWI-SMS, 2008 WL 706599, at *3 (E.D. Cal. Mar. 14, 27 2008)(stating that “[o]ne who does not file a verified claim pursuant 28 to the Supplemental Rules lacks standing in the forfeiture action”). For these reasons, the requirement Id. at 664-65 (quotations and Therefore, “[i]f United States v. 2001 Volkswagon Beetle, 5 1 Further, when a claimant lacks standing due to his failure to file a 2 verified claim, any answer filed may also be stricken. 3 Volkswagon Beetle, 2008 WL 5120737, at *4 (striking answer where 4 claimant failed to file a verified claim); Real Property Located in 5 Merced County, 2008 WL 706599, at *3 (same); United States v. 6 $11,918.00, No. 1:03-cv-05679, 2007 WL 3037307, at *6 (E.D. Cal. Oct. 7 17, 2007)(“Granting a motion to strike an answer is appropriate for 8 one who does not file a claim in compliance with the pertinent 9 rules.”); see also United States v. $38,570 in U.S. Currency, 950 F.2d 2001 10 1108, 1112-15 (5th Cir. 1992)(answer was properly stricken where 11 claimant filed an untimely claim). 12 Pickle received direct notice of the forfeiture action on 13 July 30, 2009, at the latest, when the United States Marshal 14 personally served him and posted a copy of the complaint at his 15 residence. 16 Pickle filed a claim through his attorney contesting the forfeiture of 17 the defendant real property. 18 under penalty of perjury; rather, his attorney verified the claim on 19 his behalf. 20 requirements in civil forfeiture actions prior to December 1, 2006, 21 provided that verification of a claim could be accomplished by a 22 claimant’s attorney under certain circumstances, Rule G(5)(a)(i)(C) 23 does not allow for such verification. 24 $100,348.00 in U.S. Currency, 354 F.3d 1110, 1118 (9th Cir. 25 2004)(noting that Supplemental Rule C(6) provides that “[i]f [a] claim 26 is made on behalf of the person entitled to possession by an attorney, 27 it shall state that the attorney is duly authorized to make the 28 claim”); see also United States v. One Men’s Rolex Masterpiece Watch, (Teglia Decl. ¶ 5.) Thereafter, on August 17, 2009, However, Pickle did not sign the claim Although Supplemental Rule C(6), which governed pleading 6 Cf. United States v. 1 No. 07-2508-STA-dkv, 2008 WL 2769368, at *1 n.2 (W.D. Tenn. July 11, 2 2008)(noting change in pleading requirements in Supplemental Rule 3 G(a)(5)(i)(C) and striking claim and answer signed only by claimant’s 4 attorney). 5 perjury, it does not comply with Supplemental Rule G(a)(5)(i)(C). 6 Since Pickle did not sign his claim under penalty of In her e-mail, Lerman suggests Pickle did not receive notice 7 of this in rem forfeiture action before he “went hiking,” but Pickle 8 was personally served and received notice of this action on July 30, 9 2009. Lerman’s e-mail did not state when she first became aware of 10 Pickle’s disappearance, and she failed to file an opposition to the 11 motion or provide other information on the status or whereabouts of 12 Pickle. 13 vacation,” or whether he is still missing. 14 a timely, verified claim in compliance with Supplemental Rule G(5)(i), 15 and no good cause appears to excuse this failure, Pickle lacks 16 standing to contest the forfeiture of the defendant real property. 17 Accordingly, his claim and answer are stricken under Supplemental Rule 18 G(8)(c)(i). Therefore, it is unknown when Pickle “went missing” or “on 19 III. 20 Since Pickle has not filed CONCLUSION For the stated reasons, the United States’ motion to strike 21 Pickle’s claim and answer is GRANTED. 22 Dated: February 2, 2010 23 24 25 GARLAND E. BURRELL, JR. United States District Judge 26 27 28 7
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