Presently, however, claimant received ample notice. Claimant was, on numerous occasions, given notice about the verified claim requirement. On September 18, 1995, Plaintiff first sought to advise the claimant and his counsel about the verified claim requirement by attempting to serve him, via certified letter, with a copy of the complaint and the Warrant of Arrest In Rem. This certified letter was returned unclaimed. The filing requirements were contained therein. On October 9, 1995, Notice of Seizure was published in The Washington Times newspaper and on October 10, 1995, notice was published in The Washington Law Reporter, in compliance with the applicable law and rules of procedure.
A second copy of the documents previously sent by the Plaintiff on September 18, 1995, was delivered to claimant's counsel after claimant filed a Motion for Return of Property in a related criminal case before this court. Accompanying these documents was a letter, dated December 27, 1995, that "specifically advised claimant's counsel of the requirement that verified claims must precede the filing of answers in rem forfeiture proceedings."
Courts generally bar claimants from proceeding if answers precede verified claims and have deemed it appropriate to strike the answer when no verified claim has been filed on a timely basis.
Moreover, "verification is an essential and necessary element of any claim."
Thus, it is appropriate to strike the answer filed by a putative claimant when no verified claim has been filed.
The ten day time period in this case began to run on September 8, 1995, when the warrant was served on the Defendant Property. The claimant did not file a verified claim until January 26, 1996. The filing was three months and eight days late. Moreover, the claimant did not request permission to file the late claim, as required by Rule C(6).
Claimant states that on July 10, 1995, a verified claim was filed with the Drug Enforcement Administration (DEA) and that the claim filed on January 26, 1996 is actually the second time a claim has been filed in this action. However, a claim submitted during the course of the administrative forfeiture proceedings does not satisfy the verified claim obligation of Rule C(6) of the Supplemental Rules.
Accordingly, claimant's argument that a claim filed with the DEA should suffice to fulfill the requirements of Rule C(6) cannot be credited by the court.
Courts have looked to various factors in deciding whether to strike an answer when a verified claim has not been filed on a timely basis. These factors include the time at which the claimant became aware of the seizure; whether the government encouraged the delay; the reasons proffered for the delay; whether the claimant has advised the court and the government of its interest in the Defendant Property before the claim deadline; whether the government would be prejudiced by allowing the late filing; the sufficiency of the answer in meeting the basic requirements of the verified claim; and whether the claimant timely petitioned for an enlargement of time.
In this case, the ten day time limit has been well surpassed. The government did nothing to encourage the delay, rather, the government encouraged compliance by alerting claimant's counsel, on various occasions as to the correct procedure. Contrary to claimant's intimation, it is solely due to his requests for extensions of time that this litigation has been protracted, not the government's actions. The claimant failed to acknowledge an interest to the Defendant Property on a timely basis. Moreover, the Plaintiff would be prejudiced by allowing the late filing of a verified claim. Specifically, as a result of claimant's failure to timely file a verified claim, the length and cost of litigation has increased for the Plaintiff.
Additionally, the subject property continues to depreciate. Furthermore, the answer filed in this case does not meet the basic requirements of a verified claim, as set out in Rule C(6). Finally, claimant did not timely request for an enlargement of time to file the verified claim.
Presently, there are no mitigating factors which could have affected claimant's ability to strictly comply with the Rule C(6) requirements. Mitigating factors that may relieve claimants from the timeliness obligation of Rule C(6), include, (1) a good faith attempt to file a timely claim; (2) detrimental reliance on misinformation from a government agency; and (3) the expenditure of considerable resources in preparing the case for trial.
In this case, claimant has failed to make a good faith attempt to file a timely claim. Indeed, claimant did not file any timely pleadings in this case. Claimant has not relied to his detriment on any misinformation from the government, rather, the government has provided relevant and accurate information. Finally, there is no evidence that claimant has incurred significant expenditures in preparing the case for trial.
Accordingly, it is this 9th day of April 1996,
ORDERED that Plaintiff's Motion to Strike the Answer of Stepney Jones be and is hereby granted; and it is
FURTHER ORDERED that Defendant's Motion for Enlargement of Time to File a Response to the Motion to Treat Plaintiff's Motion to Strike as Conceded be and is hereby denied; and it is
ORDERED that Defendant's Motion to Seal the Defendant's Response to the Government's Motion to Treat the Plaintiff's Motion to Strike as Conceded be and is hereby granted.
Ricardo M. Urbina
United States District Judge