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United States v. Approximately $13

United States District Court, E.D. California

February 20, 2014

UNITED STATES OF AMERICA, Plaintiff,
v.
APPROXIMATELY $13, 000 IN U.S. CURRENCY, Defendants.

FINDINGS & RECOMMENDATIONS

ALLISON CLAIRE, Magistrate Judge.

Before the court is plaintiff United States of America's January 13, 2014 motion for default judgment against the interests of Freddie Garibay Suarez ("Suarez"), Maria Garibay ("Garibay") and Anna Gonzalez ("Gonzalez") to Defendant $13, 000.00 in U.S. currency ("Defendant Currency"). On review of the motion and good cause appearing therefor, THE COURT FINDS AS FOLLOWS:

FACTUAL ALLEGATIONS

This is a civil action in rem brought by the United States for forfeiture of the defendant funds, which were seized from Suarez at Sacramento International Airport in Sacramento, California on January 8, 2013. Compl. ¶ 2. On that day, two special agents with the Drug Enforcement Administration ("DEA") received information regarding a passenger traveling with a large sum of money on American Airlines flight #1511, originating in Louisville, Kentucky and arriving in Sacramento, California. Id . ¶ 5. When Suarez arrived at the gate in Sacramento, the agents approached him, identified themselves, and asked Suarez permission to talk with him. Id . ¶ 6. Suarez agreed and, after some discussion, further agreed to a search of his personal belongings, including a plastic bag that he was carrying with him when he got off the plane. Id . ¶¶ 7-9. A search of this bag produced $13, 000 in cash, which Suarez claimed belonged to him, his mother and his grandmother. Id . ¶¶ 9-12. When asked about the source of the money that was his share, Suarez responded that it came from informal work as a freelance tattoo artist and "under the table" proceeds from handyman work he did with his father. Id . ¶ 12. After further discussion, which revealed several inconsistencies regarding the source of the funds, a Sacramento County Sheriff's Deputy responded to the airport with a police dog trained in detecting the presence of narcotics by scent. See id. ¶¶ 14-21. This drug-detection dog gave a positive alert to the odor of drugs on the defendant currency. Id . ¶ 21. As a result, the DEA agents seized the defendant funds. Id . ¶ 22.

PROCEDURAL BACKGROUND

On July 2, 2013, plaintiff filed a complaint for forfeiture in rem against the defendant currency. On July 23, 2013, plaintiff served by personal service on Suarez, Garibay and Gonzalez at 3612 20th Avenue, Sacramento, California 95820 separate packets with copies of the complaint, application and order for publication, warrant for arrest, order setting status (pretrial scheduling) conference, standing order, and court notices. See ECF No. 6. Garibay accepted service for Suarez and Gonzalez. See id.

On July 8, 2013, the undersigned authorized publication of the forfeiture action via the internet forfeiture website (www.forfeiture.gov) for at least thirty days. ECF No. 4. According to plaintiff's Declaration of Publication (ECF No. 7), a Notice of Civil Forfeiture was published on the official government internet site (www.forfeiture.gov) for thirty days beginning on July 9, 2013. To date, no claim or answer has been filed on behalf of Suarez, Garibay or Gonzalez.

On January 2, 2014, the Clerk entered default against the interests of Suarez, Garibay and Gonzalez. ECF No. 11. Now pending is plaintiff's January 13, 2014 motion for default judgment. No opposition to the motion has been filed.

LEGAL STANDARD

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). Supplemental Rule 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, Supplemental 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 (CA FRA) 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 adopt the general principle that notice should be effectuated by means reasonably calculated to reach potential claimants at a cost reasonable in the circumstances, and actual notice precludes a challenge to the government's failure to comply with the specific requirements of the rule set forth in Rule G(4)(b). Id.

ANALYSIS

1. Judgment Sought

The court concludes that the notice given of the judgment sought satisfies Federal Rules of Civil Procedure 55(d) and 54(c), which require that a judgment by default shall not be different in kind from the relief sought, or exceed in amount that prayed for, in the demand for judgment. In this regard, plaintiff expressly sought in the complaint the types of relief sought by the instant application for ...


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