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United States v. Proceeds of Drug Trafficking Transferred to Certain Foreign Bank Accounts

September 16, 2008

UNITED STATES OF AMERICA, PLAINTIFF,
v.
PROCEEDS OF DRUG TRAFFICKING TRANSFERRED TO CERTAIN FOREIGN BANK ACCOUNTS, DEFENDANTS.



The opinion of the court was delivered by: Ricardo M. Urbina United States District Judge

Document No.: 19

MEMORANDUM OPINION GRANTING THE PLAINTIFF'S MOTION TO DISMISS THE CLAIM OF ENRIQUE RAMIREZ ORDONEZ

I. INTRODUCTION

The complaint for forfeiture in rem alleges that the money in the defendant accounts was involved in money laundering or constitutes the proceeds of the importing or distribution of controlled substances. The United States of America ("the plaintiff") seeks to have the money in the defendant accounts forfeited to the United States.

This matter is before the court on the plaintiff's motion to dismiss the claim of Enrique Ramirez Ordonez ("the claimant") on the basis of failure to prosecute pursuant to Rule 41 and failure to participate in discovery pursuant to Rule 37. Due to the claimant's failure to participate in discovery, the court grants the plaintiff's motion to dismiss.

II. FACTUAL AND PROCEDURAL BACKGROUND

On May 15, 2003, the plaintiff filed a verified complaint for forfeiture in rem. The complaint sought forfeiture of thirty-eight foreign bank accounts*fn1 located in Colombia, South America, pursuant to 18 U.S.C. § 981 (a)(1)(A) and (C). Under 18 U.S.C. § 981(a)(1)(A) the plaintiff alleges that the property was "involved in or traceable to property involved in a violation of the anti-money laundering provisions of 18 U.S.C. §§ 1956 and 1957." Pl.'s Mot. at 1. Under 18 U.S.C. § 981(a)(1)(C) the plaintiff alleges that the property "constitutes or is

derived from proceeds traceable to violations of 21 U.S.C. §§ 841(a)(1), 846, 952(a), 960, and 963 (distributing and importing controlled substances and conspiracy to do so)." Id. at 1-2.

On November 3, 2003, the claimant filed a reply to the complaint claiming an interest in one of the defendant accounts, namely the account held in Banco Colpatria, account number 0161037745, in the name of C.I. Flora Andina, Ltd. ("account 0161037745"). Reply at § I. The claimant is the manager and legal representative of C.I. Flora Andina, Ltd. and states that money in account 0161037745 does not belong to the criminal defendants listed in the civil complaint. The claimant argues that the funds deposited into account 0161037745 were obtained as a result of a legal exporting business, and that the criminal defendants and actions alleged in the complaint are unknown to him and C.I. Flora Andina, Ltd. Id.

On June 29, 2005, the court scheduled a telephonic conference with the claimant and the plaintiff for the purpose of setting future deadlines and hearings. This order responded to the plaintiff's second status report and request for discovery. The conference call was to be held on August 10, 2005, at 11:00 a.m. Eastern Standard Time. Min. Order (June 29, 2005). Both the the claimant and his attorney failed participate in the call. The plaintiff's attorney did participate as ordered and, on August 11, 2005, the court granted the plaintiff's request to conduct discovery as sought in the plaintiff's second status report. Order (Aug. 11, 2005).

There was no further action in this case*fn2 until March 19, 2007, when the plaintiff filed a motion for order to show cause as to why the claim should not be dismissed for failure to prosecute and failure to participate in discovery. The court granted the motion for order to show cause on December 11, 2007 and gave the claimant until January 31, 2008, to show cause why his claim should not be dismissed. To date, the claimant has filed no response. The plaintiff filed the instant motion on February 1, 2008, seeking dismissal of the claim under Rule 41 for failure to prosecute and under Rule 37 for failure to participate in discovery.

III. DISCUSSION

A. Legal Standard for Rule 41(b) and (c)

A court has the discretion to dismiss a complaint with prejudice when a plaintiff fails to prosecute the complaint, fails to follow the federal rules, or fails to follow court orders. FED. R. CIV. P. 41(b); LCvR 83.23. While dismissal with prejudice may be an unduly severe sanction for a single instance of attorney misconduct, it may be appropriate "after unfruitful resort to lesser sanctions." Gardner v. United States, 211 F.3d 1305, 1308-09 (D.C. Cir. 2000); see also Barber v. Am. Sec. Bank, 841 F.2d 1159, 1162 (D.C. Cir. 1988) (dismissing appeal due to counsel's "inexcusable disregard for the rules of [the] court" and inadequate explanation for late filings). In the context of Rule 41(b), the D.C. Circuit has enumerated three justifications for dismissal with prejudice because of attorney misconduct: (1) severe prejudice to another party; (2) failure of alternative sanctions to mitigate the severe burden that the misconduct has already placed on the ...


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