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Date: 08-20-2021
Case Style:
United States of America v. 2008 33' CONTENDER MODEL TOURNAMENT VESSEL, Bearing Registration Number PR-5418AC, Serial No. JDJ33175H708 and Two Engines and Julio
and Tania de Jesús Gómez
Case Number: 17-1925
Judge: Michael Boudin
Court: United States Court of Appeals
For the First Circuit
Plaintiff's Attorney: W. Stephen Muldrow, United States Attorney, Mariana E. BauzáAlmonte, Assistant United States Attorney, Chief, Appellate
Division, and Francisco A. Besosa-Martinez, Assistant United
States Attorney, on brief
Defendant's Attorney:
Description:
Boston, MA - Criminal defense lawyer represented defendant with moving for a stay, against a civil forfeiture action against a 2008 33' Contender Model Tournament Vessel arguing that because they were defendants in a related criminal case charge.
In September 2012, the
government brought this civil forfeiture action against a 2008 33'
Contender Model Tournament Vessel, alleging that it had been used
in a money laundering and drug trafficking conspiracy. After
appellants repeatedly missed their discovery deadlines, the
district court entered default judgment in favor of the government.
This appeal followed.
After the government brought this case, the appellants
filed an answer, claiming they owned the boat. Appellants Julio
and Tania de Jesús Gómez then moved for a stay, arguing that
because they were defendants in a related criminal case,
participating in this civil case would endanger their Fifth
Amendment privilege against self-incrimination. The judge denied
the motion without prejudice and directed them to provide a status
update on the criminal case. None of the claimants ever provided
the requested update or renewed their motion to stay.
The government then served special interrogatories on
the appellants, seeking to establish the identities of the
claimants and their relationship to the defendant property. Supp.
R. Adm. or Mar. Cl. & Asset Forfeiture Actions G(6)(a). Appellants
failed to respond within the twenty-one-day deadline set by Rule
G(6). The day after the deadline passed, they moved for an
extension of time until January 5th, 2015. The court granted the
request but warned that it would not grant any further extensions.
- 4 -
Again, appellants missed their deadline, and on January
7th they filed another motion asking for an extension until January
15th. True to its earlier warning, the district court denied this
motion. On January 20th, 2015, the government moved to strike the
appellants' answer and claims and sought default judgment. Only
then did the appellants answer the special interrogatories: On
January 26th, they filed an informative motion indicating that
they had served their answers on the government that day and
another motion opposing the government's motion to strike and
request for default judgment. The district court granted the
government's motion to strike their answer and claims. With no
claims left to be considered, the judge granted the government's
motion for default judgment.
On appeal, the appellants argue that the district court
abused its discretion by striking their claims and entering default
judgment. The proper answer to this argument is: "You must be
kidding." The more formal answer is that there was no abuse of
discretion. Rule G(8)(c)(i)(A) of the Supplemental Rules on
Admiralty or Maritime Claims and Forfeiture Actions states that
"[a]t any time before trial, the government may move to strike a
claim or answer . . . for failing to comply with Rule G(5) or (6)."
Rule G(6)(b) sets the twenty-one-day deadline for answering
special interrogatories. The supplemental rules do not discuss
when a motion to strike a claim or answer should be granted, except
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to note that "[n]ot every failure to respond to subdivision (6)
interrogatories warrants an order striking the claim" but "the
special role that subdivision (6) plays in the scheme for
determining claim standing may justify a somewhat more demanding
approach than the general approach to discovery sanctions under
[Federal Rule of Civil Procedure] 37." Supp. R. Adm. or Mar. Cl.
& Asset Forfeiture Actions, R. G Advisory Committee Notes.
This court has laid out a list of factors for judges to
consider when imposing discovery sanctions under Rule 37,
including whether the offending party was on notice of the
potential sanction and had the opportunity to argue against it, as
well as "the severity of the discovery violations, legitimacy of
the party's excuse for failing to comply, repetition of violations,
deliberateness of the misconduct, mitigating excuses, prejudice to
the other party and to the operations of the court, and adequacy
of lesser sanctions." AngioDynamics, Inc. v. Biolitec AG, 780
F.3d 429, 435 (1st Cir. 2015). The district judge used these
factors to guide her reasoning, and she did not abuse her
discretion in applying them.
The appellants were on notice that their claims might be
stricken given both Rule G(8)'s explicit authorization of a motion
to strike if they did not answer the interrogatories on time and
the judge's warning that she would not grant a second extension.
- 6 -
They had the opportunity to explain their delay in their opposition
to the government's motion to strike.
Severity, repetition, and deliberateness weigh against
the appellants: they let the statutory deadline elapse before even
requesting their first extension, missed their extended (selfimposed) deadline, and did not request a second extended deadline
until they had missed the first. And, had the court granted their
request for a second extension, they would have missed that one
too, as they did not answer the special interrogatories until
eleven days after the second extension would have expired. From
this repeated failure to meet self-imposed deadlines, the district
judge justifiably inferred that the appellants had deliberately
chosen to withhold discovery until their claims risked being
stricken. See Tower Ventures, Inc. v. City of Westfield, 296 F.3d
43, 47 (1st Cir. 2002).
The appellants argue that the prejudice factor weighs in
their favor, as the government did not argue that it was prejudiced
by their delay. But "the presence or absence of prejudice is not
determinative," and besides, this argument ignores the prejudice
to the court itself, which has a "strong institutional interest in
ensuring that litigants honor court orders" so that it may
efficiently administer its docket. Tower Ventures, 296 F.3d at
47.
- 7 -
The appellants assert two excuses: first, they say that
answering the interrogatories would burden their Fifth Amendment
right against self-incrimination. But they raised this issue in
their petition to stay this case. When the district court denied
the petition without prejudice, asking for a status update on the
criminal case, the appellants never provided any update or renewed
their stay application, and they never raised the Fifth Amendment
argument in either of their motions to extend time.
Second, they say Mr. de Jesús was in solitary confinement
during the time they failed to answer the interrogatories. But,
again, the appellants did not raise this argument in either of
their motions requesting extensions; they introduced it for the
first time in their opposition to the government's motion to
strike. Even crediting Mr. de Jesús's solitary confinement as the
reason he could not answer the interrogatories on time, appellants
do not explain why Ms. de Jesús did not have most, if not all, of
the necessary information to answer the interrogatories without
Mr. de Jesús's assistance.
Finally, appellants argue that a lesser sanction would
have been appropriate. Maybe so, but every other Angiodynamics
factor weighs against them, and Rule G(6) indicates a more
demanding approach than Rule 37 itself. The district judge was
well within her discretion to strike appellants' answer and claims
and grant the government's motion for default judgment.
Outcome: Affirmed.
Plaintiff's Experts:
Defendant's Experts:
Comments: