United States District Court, D. Nevada
REPORT & RECOMMENDATION OF U.S. MAGISTRATE JUDGE
WILLIAM G. COBB, Magistrate Judge.
This Report and Recommendation is made to the Honorable Miranda M. Du, United States District Judge. The action was referred to the undersigned Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and the Local Rules of Practice, LR 1B 1-4.
After a thorough review, the court recommends that Thomas E. Slack's (Slack) claim (Doc. # 7) and answer (Doc. # 8) filed in this action be stricken, and that a default judgment of forfeiture be entered against the defendant currency and in favor of the United States of America (United States).
A. The Complaint
The United States filed its complaint for forfeiture in rem on August 29, 2012, with respect to $15, 000 which was seized on March 3, 2012, from the vehicle being driven by Todd Leslie (Leslie). (Doc. # 1.) The property was subject to administrative summary forfeiture proceedings, but a claim was filed by Slack on June 11, 2012, claiming ownership of the currency.
The complaint alleges that on March 3, 2012, Leslie was driving a blue 2006 Nissan pick-up truck in Elko County, Nevada. Leslie was the registered owner of the vehicle. ( Id. ) Slack was a passenger in the vehicle. The vehicle was stopped by a Nevada Highway Patrol (NHP) officer. The two men were questioned by the NHP officer. The questioning ultimately led to the issuance of a search warrant which resulted in the seizure of cash which was alleged to be proceeds traceable to the exchange of controlled substances in violation of Title II of the Controlled Substances Act, 21 U.S.C. § 801, et. seq., and subject to forfeiture to the United States pursuant to 21 U.S.C. § 881(a)(6). Following discovery of the currency, Slack completed a seizure questionnaire indicating that he was the owner of $15, 000 of the currency.
B. Order for Summons and Warrant of Arrest for In Rem Property and Notice to Claimants
An order for summons and warrant of arrest of the property and notice was issued by the court on September 10, 2012. (Doc. # 3.) The order provided that all persons claiming an interest in the property must file a verified claim pursuant to Rule G(5) of the Supplemental Rules for Certain Admiralty Claims and Asset Forfeiture Actions, and 18 U.S.C. § 983(a)(4)(A). This instructed any claimant to file an answer or motion under Rule 12 responding to the United States' complaint not later than twenty days after the date of the filing of the claim. ( Id. ) The order and notice were served on both Leslie and Slack. (Doc. # 5.)
C. Slack's Claim & Answer
On November 14, 2012, Slack, through attorney Tammy M. Riggs, filed a claim of ownership in the property. (Doc. # 7.)
On November 19, 2012, again through counsel, Slack filed an answer. (Doc. # 8.) The answer admits as well as denies portions of the complaint. ( Id. ) In addition, it asserts the following affirmative defenses: (1) the complaint fails to state a claim upon which relief may be granted; (2) the property at issue as neither the proceeds of nor gained in a transaction involving any violation of 21 U.S.C. § 801, et. seq.; and (3) the property was illegally seized in violation of the Fourth Amendment of the United States Constitution, and Article I, Section 18 of the Nevada Constitution.
D. Attorney Withdraws
On March 20, 2013, Slack's attorney, Ms. Riggs, filed a motion to withdraw. (Doc. # 9.) According to Ms. Riggs, after she attempted to communicate with her client regarding responding to discovery propounded by the United States, he broke off all communication. ( Id. ) Her request was granted on March, 21, 2013. (Doc. # 11.)
E. United States' Motion to Compel
On March 20, 2013, the United States filed a motion to compel responses to interrogatories and the production of documents to which Slack had failed to respond. (Doc. # 10.) Slack did not file a response to the motion. ( See Doc. # 13.)
On April 15, 2013, the court granted the United States' motion to compel. (Doc. # 14.) The court advised Slack that if he failed to respond to the outstanding discovery on or before April 30, 2013, the court may enter a recommendation for sanctions, including that Slack's failure to respond be treated as contempt of court and/or that his claim be dismissed. ( Id. )
F. United States' Motion to Strike Claim/Answer and To Enter Default Judgment of Forfeiture
Slack failed to respond to the United States' discovery, in contravention of the court's April 15, 2013 order; therefore, the United States now moves to strike Slack's claim and answer and requests that default judgment of forfeiture be entered against the defendant currency. (Doc. # ...