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United States v. Real Property Located at 1 Mile Up Road

February 2, 2010

UNITED STATES OF AMERICA, PLAINTIFF,
v.
REAL PROPERTY LOCATED AT 1 MILE UP ROAD, BURNT RANCH, PICKLE CALIFORNIA, TRINITY COUNTY, APN: 008-430-02, INCLUDING ALL APPURTENANCES AND IMPROVEMENTS THERETO, DEFENDANT.



The opinion of the court was delivered by: Garland E. Burrell, Jr. United States District Judge

ORDER GRANTING THE UNITED STATES' MOTION TO STRIKE CLAIM AND ANSWER OF THOMAS HENNESSEY

Plaintiff, the United States of America, filed a motion on January 7, 2010 under Rule G(8)(c) of the Supplemental Rules for Admiralty or Maritime Claims and Asset Forfeiture Actions ("Supplemental Rules"), in which it seeks an order striking the claim and answer filed by Thomas Pickle. The United States argues Pickle has not filed a verified claim as required under the Supplemental Rules, and therefore, he lacks standing as a claimant in this matter. Pickle has not filed an opposition. For the reasons stated below, the motion to strike Pickle's claim and answer is GRANTED.

I. BACKGROUND

This case is an in rem forfeiture action brought by the United States against the real property located at 1 mile up Hennessey Road in Burnt Ranch, California (the "defendant real property"). The United States filed a verified complaint on July 16, 2009, in which it seeks to forfeit the defendant real property based on its allegations that the defendant real property was used or intended to be used to facilitate the distribution of marijuana in violation of 21 U.S.C. § 841 et seq. (Verified Compl. ¶¶ 4-9.) Thomas Pickle is the record owner of the defendant real property. (Id. ¶ 3.)

The United States gave Pickle direct notice of this action three ways. First, on July 16, 2009, the United States mailed a copy of the complaint and related documents to Pickle by certified mail. (Teglia Decl. ¶ 5.) A certified mail receipt for these documents was signed on July 20, 2009 by Selma Pickle. (Id.) Then, on July 30, 2009, the United States Marshal personally served Pickle with the complaint and related documents, including a notice of complaint, application and order for publication, lis pendens, and an order requiring joint status report. (Id.) Also on July 30, 2009, the United States Marshal posted a copy of the complaint and notice of complaint on Pickle's residence. (Id.) In addition, beginning on August 19, 2009, and continuing for at least thirty consecutive days, the United States published notice of the forfeiture action on the official federal government website, www.forfeiture.com. (Id. ¶ 6.) A declaration of publication was filed on September 21, 2009. (Id.)

On August 17, 2009, Pickle's attorney, Editte Lerman, filed a "Claim Against Real Property Subject to Forfeiture Action" on Pickle's behalf. Lerman verified the claim for Pickle, stating:

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.

(Claim Against Real Property ¶ 2:20-24.) Lerman also verified the answer filed on September 9, 2009.

Assistant United States Attorney Kristin Door telephoned Lerman on or about August 19, 2009, and left a message with her receptionist, relaying that the claim filed was defective since it was not signed by Pickle. (Door Decl. ¶ 4.) Door then wrote a letter to Lerman, advising her of the claim's defect, and giving her until August 28, 2009 to file a properly verified claim. (Id. ¶ 5, Ex. 1.) On September 11, 2009, Door again telephoned Lerman's office and left another message with the receptionist concerning the defective claim. In addition, on September 30, 2009, Door sent Lerman an e-mail advising her that she would file a motion to strike the defective claim and answer if Lerman did not file a claim signed by Pickle. (Id. ¶ 7.)

On October 2, 2009, Lerman responded to Door's e-mail, relating that "Mr. Pickle is in somewhat of a 'pickle'" as "[p]rior to the filing of the complaint in the . . . forfeiture matter, Mr. Pickle went hiking in the mountains" and "has been missing since." (Id. ¶ 8, Ex. 3.) Lerman wrote that the Forest Service had found Pickle's vehicle in Del Norte County and that he might have been the victim of foul play. (Id.) Lerman concluded that Pickle was either "missing" or "on vacation in the mountain wilderness." (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 a motion to strike Pickle's claim for thirty days. (Id. ¶ 9.) As of January 6, 2010, Door had not heard further from Lerman. (Id. ¶ 10.)

II. DISCUSSION

The United States argues that Pickle's claim is defective since he has not verified the claim as required by Supplemental Rule G(5)(a)(i). The United States contends that as a result of this defect, Pickle lacks standing as a claimant in this action and his claim and answer should be stricken.

The Supplemental Rules as well as the Federal Rules of Civil Procedure govern this action.*fn1 Supp. R. G(1). Supplemental Rule G(5) prescribes the requirements for filing a claim to contest a forfeiture action, providing: "The claim must: (A) identify the specific property claimed; (B) identify the claimant and state the claimant's interest in the property; (C) be signed by the claimant under penalty of perjury; and (D) be served on the government attorney . . . ." Supp. R. G(5)(a)(i)(emphasis added). Supplemental Rule G(8)(c)(i) allows the government to ...


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