FINDINGS & RECOMMENDATIONS
Before the court is plaintiff United States of America's November 10, 2010 motion for default judgment, requesting (1) entry of default judgment against the interests of spouses Juan Brambilla-Lopez ("Brambilla-Lopez") and Paula Reyes Lara ("Lara") in approximately $11,320.00 in U.S. currency ("the defendant currency") and (2) entry of final judgment of forfeiture vesting plaintiff all right, title and interest in the defendant currency.
On March 19, 2010, the West El Dorado Narcotics Enforcement Taskforce ("WENET") set up surveillance at Brambilla-Lopez's residence at 4671 Holly Drive, Shingle Spring, California, after the El Dorado County Sheriff's Department received information that Brambilla-Lopez possessed methamphetamine. (Compl., ¶ 7.) Officers saw Brambilla-Lopez leave the residence at approximately 1:30 p.m. (Id.) At approximately 1:40 p.m., Branbilla-Lopez was pulled over by other officers for speeding. (Id.) Brambilla-Lopez consented to a search and officers found 2.1 grams of a substance that tested positive for methamphetamine in a cigarette pack in his pocket. (Id.) Brambilla-Lopez was arrested and transported to El Dorado County Jail. (Id.)
Also on March 19, 2010, WENET officers executed a search warrant at Brambilla-Lopez's residence. (Compl., ¶ 8.) During the course of that search, officers found two plastic bags containing 99.4 grams of a substance that tested positive for methamphetamine, as well as another bag with 3.8 grams of a substance that tested positive for methamphetamine. (Id.) Officers also found $11,320.00 in U.S. currency inside a stuffed animal that was inside a black nylon bag with luggage tags bearing Brambilla-Lopez's name. (Compl., ¶ 9.) Both Brambilla-Lopez and his wife Lara denied any knowledge of the money or drugs. (Compl., ¶¶ 9-10.) Neither Brambilla-Lopez nor Lara had any employment history from 2006 to present. (Compl., ¶ 11.)
On July 21, 2010, plaintiff filed the present complaint for forfeiture in rem against the defendant currency. On July 21, 2010, a warrant for arrest of articles in rem was issued. On July 29, 2010, the warrant was executed.
On July 22, 2010, plaintiff sent separate packets, each with copies of the complaint, application and order for publication, order regarding clerk's issuance of warrant for arrest, warrant for arrest, order setting status conference, and court notices, to Brambilla-Lopez and Lara by first class mail and by certified mail. (Mot. for Def. J., Teglia Decl. at ¶¶ 3-4, Exs. A-B.) Both packets were signed by "Paula Reyes" (Lara) on July 26, 2010. (Id.)
On July 20, 2010, personal service was attempted by the U.S. Marshal's Service on both Brambilla-Lopez and Lara at 4671 Holly Drive, Shingle Springs, CA 95682. (Doc. No. 7.) Service was unsuccessful, however; the woman who answered the door denied knowing either Brambilla-Lopez or Lara, and also denied that they lived at the residence. (Id.)
Plaintiff further asserts that Brambilla-Lopez had actual knowledge of this forfeiture action. (Mot. for Def. J. at 5.) On August 25, 2010, Brambilla-Lopez's attorney David Dratman in the state criminal action contacted the plaintiff's attorney to discuss possible settlement and to discuss a date by which Brambilla-Lopez might file a claim. (Id., Door Decl., ¶¶ 4-5.)
On August 3, 2010, the undersigned authorized publication of the forfeiture action via the internet forfeiture website (www.forfeiture.gov) for at least thirty days. According to plaintiff's Declaration of Publication (Doc. No. 8), a Notice of Civil Forfeiture was published on the official government internet site (www.forfeiture.gov) for thirty days beginning on August 4, 2010. To date, no claim or answer has been filed on behalf of Brambilla-Lopez or Lara.
On October 5, 2010, plaintiff moved for entry of default against Brambilla-Lopez and Lara. On October 7, 2010, default was entered as to both. On November 10, 2010, plaintiff filed a motion for default judgment and final judgment of forfeiture.
A court has the discretion to enter a default judgment against one who is not an infant, incompetent, or member of the armed services where the claim is for an amount that is not certain on the face of the claim and where (1) the defendant has been served with the claim; (2) the defendant's default has been entered for failure to appear; (3) if the defendant has appeared in the action, the defendant has been served with written notice of the application for judgment at least three days before the hearing on the application; and, (4) the court has undertaken any necessary and proper investigation or hearing in order to enter judgment or carry it into effect. Fed. R. Civ. P. 55(b); Alan Neuman Productions, Inc. v. Albright, 862 F.2d 1388, 1392 (9th Cir. 1988). Factors that may be considered by courts in exercising discretion as to the entry of a default judgment and as to setting aside a default include the nature and extent of the delay, Draper v. Coombs, 792 F.2d 915, 924-25 (9th Cir. 1986); the possibility of prejudice to the plaintiff, Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986); the merits of plaintiff's substantive claim, id.; the sufficiency of the allegations in the complaint to support judgment, Alan Neuman Productions, Inc., 862 F.2d at 1392; the amount in controversy, Eitel v. McCool, 782 F.2d at 1471-72; the possibility of a dispute concerning material facts, id.; whether the default was due to excusable neglect, id.; and, the strong policy underlying the Federal Rules of Civil Procedure that favors decisions on the merits, id.
With respect to default judgments in proceedings that are in rem actions for forfeiture, both the general Federal Rules of Civil Procedure and the Supplemental Rules for Certain Admiralty and Maritime Claims ("Supp. R.") apply, but the latter rules prevail if there is an inconsistency. Supp. R. A(1). Supp. R. G(1) provides that the rule governs a forfeiture action in rem arising from a federal statute; to the extent that Rule G does not address an issue, Supp. Rules C and E also apply. Supplemental Rule G, which took effect on December 1, 2006, incorporates a common-sense approach to notice grounded in defined and recognized principles of due process of law. Supp. Rule G, Adv. Comm. Note on 2006 Adoption. The Advisory Committee Note indicates that the rule was added to bring together the central procedures governing civil forfeiture actions; it also states that the rule generally applies to actions governed by the Civil Asset Forfeiture Reform Act of 2000 (CAFRA) as well as those excluded from it; thus, the intended scope of application is very broad. The rule permits flexibility as to the time of service of any warrant and supplemental process. Id. The provisions for notice incorporate the traditional means of publication and ...