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Case 1:13-cv-02754-WDQ Document 12 Filed 07/08/14 Page 1 of 6

















Civil No. 13-cv-02754-WDQ









UNITED STATES DISTRICT COURT

DISTRICT OF MARYLAND




UNITED STATES OF AMERICA,


Plaintiff,

- against -




$50,000.00 in U.S. Currency,


Defendant.











- - - - - - - - - - - - - - - - - - - - - - - - - - - - - -X


GOVERNMENT’S MOTION TO DISMISS VERIFIED CLAIM

FOR FAILURE TO RESPOND TO SPECIAL INTERROGATORIES

The United States of America, by its counsel, moves pursuant to Rule G(8)(c) of the

Federal Rules of Civil Procedure, Supplemental Rules for Admiralty and Maritime Claims and

Asset Forfeiture Actions, to dismiss the Verified Claim of Joe Avitia for failure to respond to the

special interrogatories that were served on the Claimant pursuant to Rule G(6). In support of its

motion, the Government says the following.

BACKGROUND

The Government filed its Verified Complaint for forfeiture in rem on or about September

25, 2013, and Claimant filed his claim and answer on or about October 25, 2013.

On or about December 17, 2013, after sending Claimant a letter advising him that his claim

and answer were deficient and receiving no response, the Government moved to dismiss the claim

and answer for failure to comply with the pleading requirements in Rule G(5). Claimant did not

oppose the Government’s motion.

On June 6, 2014, the court denied the Government’s motion. On June 9, 2014, the



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Case 1:13-cv-02754-WDQ Document 12 Filed 07/08/14 Page 2 of 6

Government mailed Claimant a set of special interrogatories issued pursuant to Rule G(6).

Exhibit 1. The special interrogatories were enclosed with a letter to attorney Stanton Bloom – the

attorney who filed the initial administrative claim to the defendant property with the DEA on

Claimant’s behalf – advising him that the failure to answer the special interrogatories could result

in the dismissal of Claimant’s claim. Exhibit 2. Sometime thereafter, attorney Stanton Bloom

left a voicemail for Government counsel advising that he was aware of the special interrogatories

but did not know if he would be retained by Claimant to represent him in this matter. The

Government has had no further contact with Mr. Bloom or Claimant.

Rule G(6)(b) provides that the claimant must serve answers or objections to the special

interrogatories “within 21 days after the interrogatories are served.” As of this date, the time has

expired and Claimant has not responded to the special interrogatories.

DISCUSSION



Rule G(6) allows the Government to use special interrogatories as a way of testing the

evidentiary basis for the claimant’s assertion of standing to contest the forfeiture of property in an

in rem action. See Advisory Committee Note to Rules G(6) and (8)(c) (noting the “special role

that subdivision (6) plays in the scheme for determining claim standing”). The importance of

insisting on the claimant’s compliance with the rule is well-established in this and other circuits.

See United States v. Funds in the Amount of $574,840, 719 F.3d 648, 652-53 (7th Cir. 2013) (noting

the danger of false claims in civil forfeiture proceedings and the Government’s right to use special

interrogatories to gather evidence needed to challenge standing under Rule G(8)(c)), citing Asset

Forfeiture Law in the United States, § 9-3); United States v. $133,420.00 in U.S. Currency, 672

F.3d 629, 642 (9th Cir. 2012) (“the purpose of the rule is to permit the Government ... to gather



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information that bears on the claimant’s standing”; e.g., special interrogatories may be used to

“test the veracity of [claimant’s] claim of ownership”), affirming United States v. $133,420.00 in

U.S. Currency, 2010 WL 2594304, *7 (D. Ariz. June 23, 2010) (“Rule G appears to tip the scale in

favor of the Government’s interest in not defending against claims without minimal evidence of

standing [and] does so by allowing the Government to propound special interrogatories and to

challenge a claimant’s standing by summary judgment early in the proceeding”); United States v.

$104,250.00 in U.S. Currency, 947 F. Supp.2d 560, 565 (D. Md. 2013) (the purpose of the

special interrogatories is to allow the Government find out the claimant’s true identity and to test

her ability to establish standing); United States v. 14,800.00 in U.S. Currency, 2012 WL 4521371,

*5 (D. Md. Sept. 28, 2012) (“Rule G(6) interrogatories serve an essential function in the asset

forfeiture context by allowing the Government to test a claimant’s bare assertion of standing

against an evidentiary basis”); United States v. $22,900.00 in U.S. Currency, 2014 WL 2574052

(M.D. Fla. June 9, 2014) (“Rule G(6) facilitates the Government’s ability to challenge claims on

standing grounds”).



Indeed, the primary role that the special interrogatories play in the civil forfeiture process is

illustrated by the rule that the Government need not even respond to any other pleading filed by the

claimant until he has answered the special interrogatories. See United States v. $104,250.00 in

U.S. Currency, 947 F. Supp.2d 560, 565 (D. Md. 2013) (“the claimant must respond to the special

interrogatories, and the court must determine whether the claimant has standing to contest the

forfeiture, before the court addresses any other issue that the claimant may raise”; collecting

cases); United States v. $22,900.00 in U.S. Currency, 2014 WL 2574052 (M.D. Fla. June 9, 2014)

(because special interrogatories are designed to test the claimant’s standing, and standing is a



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threshold issue, the Government need not respond to claimant’s motion to dismiss its complaint

until claimant has answered the special interrogatories; following $104,250); United States v.

$307,970.00 in U.S. Currency, 2013 WL 2251209 (E.D.N.C. May 22, 2013) (because the

Government does not have to respond to a motion to dismiss its complaint until the claimant has

answered its special interrogatories, it would make no sense to stay the claimant’s response until

the court has ruled on his motion); United States v. $307,970.00 in U.S. Currency, 2013 WL

4095373 (E.D.N.C. Aug. 13, 2013) (granting Government’s motion to stay its response to motion

to dismiss until claimants have answered all special interrogatories); United States v. $10,460 in

U.S. Currency, 2013 WL 3043408 (D. Md. June 18, 2013) (resolving Government’s motion to

dismiss for failure to respond to special interrogatories first, and holding that once it is granted,

Claimant’s motion to dismiss is moot).

Rule G(8)(c) provides that at any time before trial, the Government may move to strike a

claim or answer “for failing to comply with Rule G(5) or G(6).” Courts routinely grant such

motions where the time to respond to the special interrogatories has expired and the claimant has

not requested an extension of time. See United States v. $27,970.00 in U.S. Currency, 2010 WL

933762 (S.D. Ga. Mar. 16, 2010) (dismissing claim pursuant to Rule G(8)(c)(i)(A) two months

after claimant failed to respond to special interrogatories); United States v. $2,409 in U.S.

Currency, 2010 WL 2670982, *1 (D. Md. June 24, 2010) (following $27,970; striking claim for

failing to respond to special interrogatories within 21 days); United States v. $85,000,00 in U.S.

Currency, 2010 WL 5087910 (D. Md. Dec. 7, 2010) (same); United States v. $24,000 in U.S.

Currency, 2012 WL 1899225 (D. Md. May 23, 2012) (same); United States v. Approximately

$24,700 in U.S. Currency, 2012 WL 458412, *1 (E.D. Cal. Feb. 10, 2012) (same); United States v.



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$15,000.00 in U.S. Currency, 2012 WL 3000649 (S.D. Miss. July 23, 2012) (same); United States

v. $12,812.00 in U.S. Currency, 2012 WL 4062466 (S.D. Ohio Sept. 14, 2012) (same); United

States v. $57,995 in U.S. Currency, 2010 WL 5137155, *1 (D.S.C. Dec. 13, 2010) (granting Rule

G(8)(c) motion to dismiss for failure to respond to special interrogatories); United States v. $4,002

in U.S. Currency, 2011 WL 2462108, *2 (D. Md. June 16, 2011) (same, following 27,970.00 and

$57,995); United States v. Approximately $67,900 in U.S. Currency, 2013 WL 6440211 (E.D.

Mich. Dec. 9, 2013) (granting motion to dismiss despite claimant’s attempt to forestall dismissal

by responding to the interrogatories two months after they were due, but without requesting an

extension of time, and not signing under oath); United States v. $29,540.00 in U.S. Currency, 2013

WL 783052, *6 (D. Mass. Feb. 28, 2013) (dismissing pro se claim for inter alia failing to respond

to special interrogatories); United States v. $25,000.00 in U.S. Currency, 2012 WL 6599918 (S.D.

Miss. Dec. 18, 2012) (granting Rule G(8)(c) motion to strike answer for failure to file a Verified

Claim, and for failure to answer the special interrogatories; collecting cases taking “a severe

stance” against claimants who fail to follow the procedural rules); United States v. $25,800

Currency, 2011 WL 2003385, *2 (D. Me. May 23, 2011) (dismissing claim pursuant to Rule

G(8)(c)(i)(A) when claimant failed to respond to special interrogatories after court extended the

deadline); United States v. 2006 Dodge ChargerSRT-8, 2011 WL 2601028, *2 (E.D. Tenn. June

30, 2011) (same); United States v. $40,449.00 in U.S. Currency, 2012 WL 234421 (W.D. Okla.

Jan. 25, 2012) (same). See also United States v. $333,806.93 in Proceeds, 2010 WL 3733932

(C.D. Cal. Aug. 30, 2010) (citing the Advisory Committee Note: failure to comply with Rule G(6)

should be evaluated under a more demanding standard than that used to determine whether to

apply sanctions under Rule 37).



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Case 1:13-cv-02754-WDQ Document 12 Filed 07/08/14 Page 6 of 6

WHEREFORE, in light of the foregoing authorities, and because Claimant has not

responded either to the special interrogatories or to any other correspondence from the

Government since at least December, 2013, Claimant’s claim and answer should be stricken and

judgment entered for the United States.






Respectfully submitted,

ROD J. ROSENSTEIN
UNITED STATES ATTORNEY

_________/s/________________________
Stefan D. Cassella
Assistant United States Attorney
36 South Charles Street
Fourth Floor
Baltimore, MD 21201

(410) 209-4800







CERTIFICATE OF SERVICE

This is to certify that on this 8th day of July, 2014, a copy of the foregoing Motion to

Dismiss for Failure to Respond to Special Interrogatories and Exhibits filed by the United States of

America was mailed first-class mail, return receipt requested to Joe Avetia, c/o Stanton Bloom,

145 S. 6th Avenue, Tucson, Arizona 85701.





/s/
Stefan D. Cassella
Assistant United States Attorney

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