United States District Court, S.D. Indiana, Indianapolis Division
REPORT AND RECOMMENDATION
J. Dinsmore, United States Magistrate Judge.
matter is before the Court on the Motion to Strike Angela
Carter's Answer [Dkt. 11] filed by Plaintiff, United
States of America. Plaintiff asserts Claimant cannot
establish standing pursuant to Supplemental Rule G(8)(b) of
the Supplemental Rules for Maritime Claims and Asset
Forfeiture Actions and so is not entitled to contest this
civil in rem forfeiture. Claimant has failed to
respond. For the reasons set forth below, the Magistrate
Judge recommends Plaintiff's motion be
a civil action seeking forfeiture of property pursuant to 21
U.S.C. § 881(a)(6) because the Defendant Currency
allegedly constitutes proceeds of, or is property used to
facilitate, a violation of the Controlled Substances Act.
[Dkt. 1 at 1]. Following the forfeiture, Claimant filed an
Answer to Complaint and Motion to Dismiss on
December 4, 2018. [Dkt. 5]. Plaintiff now challenges
Claimant's standing to contest this civil in rem
forfeiture with this Motion to Strike. [Dkt. 11].
Claimant has failed to respond.
Government may move at any time before trial to strike a
claim or answer “because the claimant lacks
standing.” Supplemental Rule G(8)(c)(i)(B). To have
standing to contest an in rem forfeiture, a party
must have Article III and statutory standing. United
States v. Funds in the Amount of $239, 4000, 795 F.3d
639, 643 (7th Cir. 2016). The claimant bears the burden of
establishing standing by a preponderance of the evidence.
Supplemental Rule G(8)(c)(ii)(B). District courts have
considerable discretion in ruling on motions to strike.
See Delta Consulting Grp., Inc. v. R. Randle
Const., Inc., 554 F.3d 1133, 1141 (7th Cir. 2009). The
Government's motion to strike may be presented as a
motion for judgment on the pleadings or as a motion to
determine after a hearing or by summary judgment that the
claimant cannot carry his or her burden of establishing
standing. Supplemental Rule G(8)(c)(ii)(B).
Plaintiff asks the Court to “enter judgment on the
pleadings because Ms. Carter has failed to adequately allege
standing.” [Dkt. 12 at 5]. Plaintiff argues Claimant
failed to adequately allege both statutory and Article III
standing. The claimant bears the burden of establishing
standing by a preponderance of the evidence. Supplemental
Rule G(8)(c)(ii)(B). To allege statutory standing,
Supplemental Rule G(5)(a) requires “the claimant must
show that he has filed a timely claim and answer, that the
claim is properly verified, and that he has identified
himself and alleged an interest in the property.”
Funds in the Amount of $239, 400, 795 F.3d at 643.
For Article III standing, a claimant must have “at
least a facially colorable ownership interest in the property
in question.” United States v. Bowser, 834
F.3d 780, 786 (7th Cir. 2016). Under Local Rule 7-1(c)(5),
“[t]he court may summarily rule on a motion if an
opposing party does not file a response within the
deadline.” See S.D. Ind. L.R. 7-1(c)(5).
are expected to actively engage in the litigation process. It
is the duty of a party not represented by counsel “to
monitor the docket and to advise himself when the court
enters an order against which he wishes to protest.”
Bardney v. U.S., 959 F.Supp. 515, 523 (quoting
Mennen Co. v. Gillette Co., 719 F.2d 568, 570 (2d
Cir. 1983)). Neglecting to adequately monitor the court
docket does not provide justification for relief from the
court's sanction. Id. These standards set for
counsel are expected of pro se litigants.
“Although pro se litigants get the benefit of more
generous treatment in some respects, they must nonetheless
follow the same rules of procedure that govern other
litigants.” Creative Gifts, Inc. v. UFO, 235
F.3d 540, 549 (10th Cir. 2000). “Trial courts generally
do not intervene to save litigants from their choice of
counsel, even when the lawyer loses the case because he fails
to file opposing papers. A litigant who chooses himself as
legal representative should be treated no differently.”
Jacobsen v. Filler, 790 F.2d 1362, 1364-65 (9th Cir.
1986). Therefore, while pro se litigants are given
some leniency as to the substance of their pleadings, all
litigants must follow the same procedural requirements. This
includes notifying the court of any address change, as well
as monitoring case updates on the docket. Pro se
litigants have chosen to represent themselves, and in doing
so, are held to the same procedural requirements as legal
counsel. Seeing as there is no response from the Claimant to
consider, the Court's analysis will continue as follows.
See S.D. Ind. L.R. 7-1(c)(5).
argues the Court should strike Claimant's Answer
[Dkt. 5] because she did not file a verified claim, therefore
failing to establish statutory standing. The Seventh Circuit
has held the filing of a properly verified claim under
Supplemental Rule (G)(5)(a) is an essential element of a
claimant's standing. United States v. U.S. Currency
in the Amount of $103, 387.27, 863 F.2d 555, 559 (7th
Cir. 1988). Claimant was to file a verified claim to the
Defendant Currency by December 6, 2018. No pleading labeled
Verified Claim was ever filed. Even after her failure to file
a verified claim, Plaintiff served Claimant with
Interrogatories to Claimant Angela Carter on
December 13, 2018 reminding Claimant of this
requirement. [Dkt. 9-1 at 1]. Even after this reminder
Claimant did not file any verified claim.
argues even if Claimant intended her Answer to Complaint
and Motion to Dismiss [Dkt. 5] to constitute her
verified claim, it failed the verification requirement of the
rule. The document does not contain any affirmation that the
statements therein are true; nor are they made under penalty
of perjury. See U.S. Currency in Amount of $103,
387.27, 863 F.2d at 560. The Seventh Circuit has held
that verification requires swearing of truth under the
penalties of perjury. See U.S. v. Commodity
Account No. 549 54930 at Saul Stone & Co., 219 F.3d
595, 597 (7th Cir. 2000). “Verification forces the
claimant to place himself at risk of perjury for false
claims, and the requirement of oath or affirmation is not a
mere technical requirement that we easily excuse.”
Id. Claimant's pleadings do not contain any
verified claim. The Court thus determines Claimant has not
established statutory standing.
Article III Standing
further argues Claimant has failed to adequately assert a
connection to the Defendant Currency, and has therefore
failed to establish Article III standing. [Dkt. 12 at 6]. An
assertion of ownership combined with possession of the
currency when it was seized is generally sufficient for
Article III standing. Funds in the Amount of $239,
400, 795 F.3d at 642-43. A “mere assertion of
ownership, without more” will not suffice. United
States v. Bowser,834 F.3d 780, 786 (7th Cir. 2016). As
the Defendant Currency was seized in the Southern District of
Indiana, the Court looks to determine whether Claimant has
alleged a property interest recognized in Indiana.
Id. at 784. In this context, the Government would
recognize that a named sender, an actual sender, and a named
or expected receiver would likely have standing to contest
forfeiture of currency or contraband sent within a package.
[Dkt. 12 at 7]. The Claimant is not the named sender of the
Subject Parcel, she is not the actual sender, and she is not
the named or expected receiver. This is made clear through
Claimant's Special Interrogatory Answers in