UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
August 10, 2009
UNITED STATES OF AMERICA, PLAINTIFF,
REAL PROPERTY LOCATED AT 14883 TULARE COUNTY JOHNSON DRIVE, OROSI, CALIFORNIA; APNS: 035-260-007-000 AND 035-260-010-000 (PARCEL 2) AND PAN: 035-260-012 (PARCEL 3), APPURTENANCES AND IMPROVEMENTS INCLUDING ALL THERETO, DEFENDANTS.
The opinion of the court was delivered by: Oliver W. Wanger United States District Judge
ORDER AFTER SCHEDULING CONFERENCE
I. Date of Scheduling Conference
August 7, 2009.
II. Summary of Pleadings
1. This is an in rem civil forfeiture action. In its Verified Complaint for Forfeiture In Rem, the government alleges that the real property located at 14883 Johnson Drive, Orosi, California, Tulare County, APNs: 035-260-007-000 and 035-260-010-000 (Parcel 2) and APN: 035-260-012 (Parcel 3), including all appurtenances and improvements thereto (hereafter "defendant real property") was used, or intended to be used, in any manner or part, to commit, or to facilitate the commission of, a violation of 21 U.S.C. § 841 et seq., an offense punishable by more than one year's imprisonment and is therefore subject to forfeiture to the United States pursuant to 21 U.S.C. § 881(a)(7). The defendant real property was posted with a copy of the Complaint and Notice of Complaint on March 18, 2009.
2. Perry Lee Willmore and Gaeney Marie Willmore own the defendant real property and on October 23, 2008, were indicted with violations of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(A) - Conspiracy to Manufacture and Distribute Marijuana and Manufacturing Marijuana.
3. Notice of the civil forfeiture was posted on the official government internet site www.forfeiture.gov for at least 30 consecutive days, beginning on April 18, 2009, pursuant to the Order of Publication filed February 20, 2009.
4. On April 10, 2009, Patsy Willmore filed an answer to the government's complaint, however, no claim has been filed.
5. On or about March 19, 2009, a copy of the Verified Complaint, Notice of Complaint, Application and Order for Publication, Lis Pendens, Lis Pendens, Order Setting Mandatory Scheduling Conference, Standing Order, Notice of Availability of a Magistrate Judge, Notice of Availability of Voluntary Dispute Resolution, and notice of forfeiture letter dated February 19, 2009, were personally served on Perry Lee Willmore.
6. On or about May 14, 2009, Gaeney Marie Willmore was served with the above-listed documents through her counsel Eric H. Schweitzer, who agreed to accept service on her behalf.
7. As of the date of the filing of this report, neither Perry Lee Willmore, Gaeney Marie Willmore, nor any other potential claimants have filed claims or answers or otherwise appeared in this action and the time to file a claim and answer has expired.
8. On February 27, 2009, Alastair Fraser and Loretta Fraser filed an action for reformation of Deeds of Trust recorded May 12, 2006, as Document Numbers 2006-0049929, 2006-0049930, and 2006-0049931 in Tulare County Superior Court against Perry Lee Willmore, Gaeney Marie Willmore, and the United States. On May 5, 2009, the United States removed the action from the Tulare Superior Court to Federal District Court as it is an action affecting property on which the United States has a lien.
III. Orders Re Amendments To Pleadings
1. The parties do not anticipate amending the pleadings at this time.
IV. Factual Summary
A. Admitted Facts Which Are Deemed Proven Without Further Proceedings
1. It is uncontested that the government filed a Verified Complaint for Forfeiture In Rem on February 18, 2009, and that the defendant real property was posted with notice of the complaint on March 18, 2009.
2. Patsy Willmore, an individual, claims an interest in the disputed real property. Patsy Willmore is not a Defendant in the underlying criminal case.
3. There is a dispute pending in the Superior Court, County of Tulare, concerning the description of the Defendant real property and whether and to what extent it may be encumbered.
4. The government agrees to be bound by the outcome in the State Court proceedings concerning the legal description of the property and the extent to which it is encumbered.
B. Contested Facts
1. Plaintiff contends the facts are as alleged in its Verified Complaint.
2. Patsy Willmore contends that she innocently purchased an undivided share in the subject real property for $100,000.00 and that she is therefore an innocent owner.
V. Legal Issues
1. Jurisdiction exists under 28 U.S.C. §§ 1331, 1345 and 1355. Also 21 U.S.C. § 881.
2. Venue is proper under 28 U.S.C. § 1395.
3. Federal law governs the forfeiture issues. The underlying nature and extent of the interest in the real property, its legal description and the like, are covered by state law. The law of California provides the substantive rule of decision as to those issues.
1. The remaining legal issues are contested.
VI. Consent to Magistrate Judge Jurisdiction
1. The parties have not consented to transfer the case to the Magistrate Judge for all purposes, including trial.
VII. Corporate Identification Statement
1. Any non-governmental corporate party to any action in this court shall file a statement identifying all its parent corporations and listing any entity that owns 10% or more of the party's equity securities. A party shall file the statement with its initial pleading filed in this court and shall supplement the statement within a reasonable time of any change in the information.
VIII. Discovery Plan and Cut-Off Date
1. The parties will not conduct discovery, nor will this action proceed until resolution of the underlying criminal case.
2. At the time the criminal cases are resolved, the parties shall notify the Court to schedule a Further Scheduling Conference within ten (10) days following resolution of the criminal case.
IX. Related Matters Pending.
1. This action is related to the criminal action United States v. Perry Lee Willmore, et al., 1:08-cr-0374 OWW and is pending before Honorable Oliver W. Wanger.
2. This action is also related to the reformation action Alastair Fraser, et al. v. Perry Lee Willmore, et al., 1:09-cv-0805 OWW GSA, and is pending an initial scheduling conference set for August 27, 2009, at 8:15 a.m. in Courtroom 3 before Honorable Oliver W. Wanger.
3. The parties request that this matter be stayed pending the resolution of the criminal and reformation actions.
X. Judgment in the Case
1. For the purposes of final judgment, the parties agree that that shall mean entry of final judgment in the trial court.
XI. Compliance With Federal Procedure
1. The Court requires compliance with the Federal Rules of Civil Procedure and the Local Rules of Practice for the Eastern District of California. To aid the court in the efficient administration of this case, all counsel are directed to familiarize themselves with the Federal Rules of Civil Procedure and the Local Rules of Practice of the Eastern District of California, and keep abreast of any amendments thereto.
XII. Effect Of This Order
1. The foregoing order represents the best estimate of the court and counsel as to the agenda most suitable to bring this case to resolution. The trial date reserved is specifically reserved for this case. If the parties determine at any time that the schedule outlined in this order cannot be met, counsel are ordered to notify the court immediately of that fact so that adjustments may be made, either by stipulation or by subsequent scheduling conference.
2. Stipulations extending the deadlines contained herein will not be considered unless they are accompanied by affidavits or declarations, and where appropriate attached exhibits, which establish good cause for granting the relief requested.
3. Failure to comply with this order may result in the imposition of sanctions.
IT IS SO ORDERED.
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