United States of America v. 2006 Mercedes Benz ML 350 Vin No. 4JGBB86E46A016429, No. 2:2012cv00886 - Document 27 (D. Nev. 2014)

Court Description: ORDER Granting 25 Motion to Strike 15 Claim for Loss of Robert Ostram and Kay Ostram. Signed by Judge Andrew P. Gordon on 10/16/14. (Copies have been distributed pursuant to the NEF - MMM)
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United States of America v. 2006 Mercedes Benz ML 350 Vin No. 4JGBB86E46A016429 Doc. 27 1 DANIEL G. BOGDEN United States Attorney 2 District of Nevada MICHAEL A. HUMPHREYS 3 Assistant United States Attorney 333 Las Vegas Boulevard South, Suite 5000 4 Las Vegas, Nevada 89101 Telephone: 702-388-6336 5 Facsimile: 702-388-6787 Email: michael.humphreys@usdoj.gov 6 Attorneys for the United States of America 7 8 UNITED STATES DISTRICT COURT 9 DISTRICT OF NEVADA 10 UNITED STATES OF AMERICA, 11 12 Plaintiff, v. ) ) ) ) ) 2:12-CV-00886-APG-(VCF) ) ) ) ) ) 13 2006 MERCEDES-BENZ ML350 VIN NO. 4JGBB86E46A016429, 14 Defendant. 15 GOVERNMENT’S MOTION TO STRIKE 16 THE CLAIM OF ROBERT OSTRAM AND KAY OSTRAM (ECF NO. 15) 17 The Plaintiff, United States of America, by and through the United States Attorney for the 18 District of Nevada, moves this Court to strike the third-party, joint claim of Robert and Kay Ostram in 19 the above-captioned case. This motion is based upon the Ostrams’ failure to: 1) file their claim under 20 penalty of perjury; and 2) file their claim within thirty-five (35) days of receipt of notice as required by 21 statute. 22 BACKGROUND AND FACTS 23 From 2008 to 2011, Eduard Petroiu and others were engaged in a massive fraud where the 24 conspirators would offer cars, trucks and other conveyances for sale over the internet that did not exist 25 or did not belong to the conspirators to sell. Relying on the schemers’ false promises, scores of 26 unwitting buyer/victims sent money to the conspirators expecting to receive a car, or similar Dockets.Justia.com 1 conveyance, that was never delivered. Once targeted by law enforcement, the conspirators’ fraud 2 scheme came to a swift end, culminating in their indictment in December 2011. A superseding 3 indictment was returned against the defendants in October 2012. All but two of the 17 conspirators have 4 pled guilty and have been sentenced. 5 On February 5, 2014, the Government served the Ostrams with copies of the Complaint, the 6 Order for Summons and Warrant of Arrest in Rem for the Property, the Summons and Warrant of Arrest 7 in Rem for the Property, and the Notice. Notice of Corrected Image/Document regarding ECF No. 22 8 Notice of Filing Service of Process – Mailing, ECF No. 23. 9 The Notice, in particular, described, in plain terms, how a putative claimant should go about 10 filing a claim and answer and the time deadline for doing so. On May 1, 2014, Robert Ostram and Kay 11 Ostram filed both a claim and an answer with the Court. Claim, ECF No. 15. In their claim, they stated 12 that they were defrauded of $6,078.00 when they attempted to purchase an Airstream camper. Based on 13 the notice that they received the Ostrams should have filed their joint claim no later than March 12, 14 2014. However, they did not file their notice until May 1, 2014. 15 As described below, in filing their claim, the Ostrams, failed both substantively and 16 procedurally, to comply with the mandatory requirements of law and, as a result, caselaw both within 17 and outside of this Circuit mandates that their claim be stricken 18 ARGUMENT 19 The Ostrams’ Lack Statutory and Constitutional Standing To Assert A Rule G(5) Claim 20 A third-party litigant seeking to share in a forfeiture judgment has the burden to prove that s/he 21 has a “legal interest” in the forfeited property to establish standing. United States v. Timley, 507 F.3d th th 22 1125, 1129-30 (8 Cir. 2007); United States v. Salti, 579 F. 3d 656, 667 n. 11 (6 Cir. 2009)(claimant 23 has the burden of proof on the standing issue. In addition, the claimant must strictly comply with any 24 and all requirements of the pleading statues before his or her claim is recognized. United States v. Real 25 . . . 26 . . . 2 th 1 Property and Premises Known as 323 Forrest Park Drive, 2013WL 1316035 (6 Cir. April 2, 2013); 2 United States v. Mack 600 Dump Truck, 680 F. Supp. 2d 816, 825 (E.D. Mich. 2010). 3 To qualify as valid claimants, the Ostrams must show that they have satisfied the statutory and 4 constitutional standing requirements. United States v. One Cadillac Seville, 866 F.2d 1142 (9th Cir. 5 1989) (“We require proper standing to contest a forfeiture both as a statutory matter and as an Article III 6 and prudential matter.” Id. at 1148). Statutory standing is satisfied by showing strict compliance with 7 the requirements of Rule G(5), Supplemental Rules for Admiralty and Maritime Claims. United States th 8 v. $5,730.00 (109 JFed. Appx. 712, 713 (6 Cir 2004). Constitutional standing means that the Claimant 9 must show that s/he has an actual imminent injury, not a hypothetical, conjectural or abstract injury. th 10 United States v. Lazarenko, 476 jFJ.3d 642, 649-5 (9 Cir. 2007). In this case, the Ostrams have proven 11 neither. 12 First, to prove statutory standing, a putative claimant must satisfy the pleading requirements of 13 the statute that authorizes him or her to file a claim. As such, in this case, the Ostrams must prove that 14 they have complied with each element of Rule G(5) of the Supplemental Rules. To do so their claim 15 must: 16 A) identify the specific property claimed; 17 B) identify the claimant and state the claimant’s interest in the property; 18 C) be signed by the claimant under penalty of perjury; and, 19 D) be served on the government attorney designated under Rule G(4)(a)(ii)(C) or 20 21 (b)(ii)(D). Principally, the Ostrams have failed to file their claim under penalty in violation of item C, 22 above. Collaterally, because the Ostrams’ claim is markedly deficient (because they did not timely-file 23 a verified claim) they are not entitled to relief and, therefore, cannot show an actual injury that would 24 imbue them with constitutional standing, as required by Lazarenko, supra. 25 . . . 26 . . . 3 A. The Ostrams’ Claim Was Filed Well Past The Statutory Deadline 1 2 However, this Court need not rely solely on the unfulfilled elements of Rule G(5) to dismiss the 3 Ostrams’ claim; because that claim fails on an even more fundamental and conspicuous basis: they have 4 filed their claim out of time. The Ostrams filed their claim and answer on May 1, 2014, exceeding the 5 35-day statutory deadline of March 12, 2014, by a full 50 days. 6 Under Rule G(4)(b)(ii)(B) a putative claimant must file a verified claim within thirty-five days of 7 receiving notice from the Government. The Ostrams can hardly plead their ignorance of the obligations 8 imposed by that statute, because the Notice they received lies out in plain language, their legal 9 responsibility to file their claim within thirty-five days. Numerous courts have ruled that claims filed th 10 beyond the 35-day deadline will be dismissed. United States v. Alvarez, 710 F.3d 565-567-68 (5 Cir. th 11 2013); United States v. Osborne, 357 Fed Appx. 109, 109-110 (9 Cir 2009); United States v. th 12 Grossman, 501 F. 3d 846, 848-49 (7 Cir. 2007) As these cases make clear, the Ostrams failure to plead 13 within the statutory time deadline constitutes a legitimate basis to strike their claim. B. The Ostrams’ Unverified Claim Violates A Basic Statutory Requirement 14 15 The language of Rule G(5) plainly states that third-party claims must be filed under penalty of 16 perjury. Thus, filing a third-party claim is a meaningless gesture unless done under penalty of perjury. 17 As this Court can readily discern by looking at the Ostrams’ claim (ECF No. 15) it bears no such 18 verification. 19 Unverified claims cannot and do not attest to the veracity of the substantive representations 20 within the document. Only an oath under penalty of perjury can do that. That is why courts have 21 consistently ruled that filing a claim under penalty is not a mere technicality but is designed to eliminate 22 the real danger of false claims. United States v. Aitken, 2010WL2951171; (“[V]erification is an essential 23 element of any claim because of the substantial danger of false claims. Verification forces the claimant 24 to place himself at risk of perjury for false claims, and the requirement of oath or affirmation is not a 25 mere technical requirement that we easily excuse.”) See also United States v. Ginn, 799 F. Supp. 2d 645, 26 647 (E.D. La. 2012); United States v. Owens, 2012WL583910 (S.D. Ind. 2010). 4 1 Insisting on verified claims is not an abstract, arbitrary or artificial barrier to confound putative 2 litigants; but, instead, offers a practical safeguard against frivolous claims being filed. “Verification 3 forces the claimant to place himself at risk of perjury for false claims, and the requirement of oath or 4 affirmation is not a mere technical requirement that we easily excuse.” United States v. Commodity 5 Account No. 549 54930, 219 F.3d 595, 597 (7th Cir. 2000). The Ninth Circuit takes the same view. 6 “We do not minimize the significance of the requirement that a claim be verified on oath or solemn 7 affirmation. We have recognized that the danger of false claims is substantial.” United States v. 1982 . . 8 Yukon Delta Houseboat, supra 774 F.2d at 1436 (citation omitted). Even a notarized claim is 9 insufficient. The claim of ownership filed by claimants’ attorney failed to include any formal affirmation of the truthfulness of the statements contained in the claim. Nowhere in the claim did the [claimants] or their attorney attest to or swear that the statements contained therein were true. Thus, even though the claim was notarized, it was not verified within the meaning of Rule C(6). Accordingly, the [claimants] lacked statutory standing to bring their claim, and the district court properly granted the government’s motion to strike. 10 11 12 13 14 United States v. $103,387.27, 863 F.2d 555, 560-61 (7th Cir. 1988). 15 Here, the Ostrams’ claim is defective because they failed to file it under penalty of perjury, 16 which, as stated above, is an express statutory obligation to establish standing. United States v. Aiken, 17 2010WL2951171 (D. Nev. 2010) (“[V]erification is an essential element of any claim because of the 18 substantial danger of false claims. Verification forces the claimant to place himself at risk of perjury for 19 false claims, and the requirement of oath or affirmation is not a mere technical requirement that we 20 easily excuse. 21 . . . 22 . . . 23 . . . 24 . . . 25 . . . 26 . . . 5 1 2 CONCLUSION In summary, the Ostrams’ claim is deficient in that it fails to meet the basic pleading requirement 3 embodied in Rule G(5) because it was not sworn to under oath and because it was filed well beyond the 4 35-day statutory deadline. As such, their joint claim should be stricken. 5 6 Respectfully submitted this 16th day of September, 2014. DANIEL G. BOGDEN United States Attorney 7 8 /s/ Michael A. Humphreys MICHAEL A. HUMPHREYS Assistant United States Attorney 9 10 11 IT IS SO ORDERED: 12 13 14 UNITED STATES DISTRICT JUDGE 15 DATED: 16 17 18 19 20 21 22 23 24 25 26 6 October 16, 2014