United States District Court, W.D. Texas, Waco Division
PITMAN UNITED STATES DISTRICT JUDGE
the Court is the Report and Recommendation of United States
Magistrate Judge Jeffrey C. Manske. (Dkt. 19). The case was
referred to Judge Manske for a Report and Recommendation on
the merits pursuant to 28 U.S.C. § 636(b), Rule 72 of
the Federal Rules of Civil Procedure, and Rule 1(d) of
Appendix C of the Local Rules of the United States District
Court for the Western District of Texas, as amended. The
United States moved to strike the answer and supplement filed
by Ephrain Joseph on January 6, 2017. (Dkt. 12). On January
20, 2017, Ephrain Joseph filed a response to the motion to
strike, which included several attachments. (Dkt. 14). On
March 10, 2017, the Magistrate Judge filed his Report and
Recommendation on the motion to strike, recommending that the
motion be granted. (Dkt. 19). To date, no objections have
the Report and Recommendation filed by the Magistrate Judge
ignores the response filed by Ephrain Joseph, the Court
declines to adopt it. Instead, based on its review of the
motion to strike, the response, the relevant case law, and
the record in this case, the Court issues the following
United States of America filed a verified complaint for
forfeiture of $48, 880.00 (“the Respondent
Property”), more or less, in United States Currency, on
December 11, 2017, pursuant to 18 U.S.C. § 981(a)(1) and
21 U.S.C. § 881(a)(6). (Compl., Dkt. 1, at 1). The
complaint alleges that the Respondent Property was seized by
the United States Postal Inspection Service
(“USPIS”) on June 23, 2015, as part of an
investigation into the importation of high-grade marijuana to
the Killeen, Texas area. (Compl., Dkt. 1, at 3-7).
on April 26, 2016, a notice of complaint of forfeiture was
published on a government website (www.forfeiture.gov) for 30
days. (Decl. of Pub., Dkt. 7). In addition, the government
“served” Ephrain Joseph and his common law wife,
Erin Dizer, “with direct notice of [the] civil
forfeiture action” on June 15, 2016. (Mot. to Strike,
Dkt. 12, at 2 (citing Dkt. 9)).
5, 2016, Joseph submitted an “Answer to Verified
Complaint for Forfeiture, ” where he admitted or denied
the factual allegations set out in the Verified Complaint for
Forfeiture. (Ans., Dkt. 8). He supplemented this answer on
July 14, 2016, correcting the case number listed in the case
caption included at the beginning of his prior answer. (Supp.
Ans., Dkt. 10).
January 6, 2017, the government filed a motion to strike
Joseph's answers, arguing that his answers should be
struck because he failed to file a verified claim pursuant to
Rule G of the Supplemental Rules of the Federal Rules of
Civil Procedure. (Mot. to Strike, Dkt. 12, at 1-3). It argues
that because Joseph was served with notice on June 15, 2016,
any claim he wished to file was due by July 20, 2016, but
that no claim had been filed. (Mot. to Strike, Dkt. 12, at
3-4). The government attaches three letters it sent to Joseph
in support of its motion. (Mot. to Strike, Dkt. 12, Exs.
A-C). The first two, sent in mid-July and mid-August,
explained the requirements of Rule G and indicated that
“the United States will move to strike [Joseph's]
answer for failure to file the required claim.” (Mot.
to Strike, Dkt. 12-1, Ex. A). The third letter, sent October
6, 2017, returned Joseph's mailing, explaining that
“[Joseph's] latest submission fails because it has
not been filed with the Court and does not set out the items
required by the applicable court rule.” (Mot. to
Strike, Dkt. 12-3, Ex. C). The government did not provide the
Court with a copy of the mailing that it returned to Joseph,
nor did it provide more information about the mailing's
contents, but presumably his mailing was an attempt by Joseph
to serve a claim for the Respondent Property on the
appropriate government attorney. (See Mot. to
Strike, Dkt. 12-3, Ex. C). In addition to its argument that
Joseph's answer must be struck under Rule G, the
government also argues that, because Joseph failed to submit
a timely, proper claim, he has no statutory standing to
contest the forfeiture. (See Mot. to Strike, Dkt.
12, at 5-6).
January 20, 2017, Joseph responded pro se to the
government's motion, attaching “an original claim,
” a “previous claim, ” filed on or about
June 16, 2016, a “complaint” filed on or about
July 7, 2016, and “[n]umerous W-2 and bank statements
which establish the source” of the Respondent Property.
(Resp., Dkt. 14, at 1). The “original claim”
states, “I, Ephrain Joseph, state under penalty of
perjury that I am the owner of defendant: $48, 880, more or
less, in United States currency.” (Resp., Dkt. 14-1, at
1). It is dated January 19, 2017, and is signed by Joseph,
who it identifies as “claimant.” (Resp., Dkt.
14-1, at 1). The “previous claim” is a document
entitled “Claim of Ownership, ” which is
addressed to the USPIS's Asset Forfeiture Unit and
states, among other things, that Joseph is the owner of the
Respondent Property. (Resp., Dkt. 14-1, at 2). It is dated
June 16, 2016. (Resp., Dkt. 14-1, at 3). The
“complaint” is similar to the “previous
claim, ” but includes a case caption at the top.
(Resp., Dkt. 14-1, at 4). It states that it is “In the
United States Court of Federal Claims, ” but lists the
case number for this action, 6:15-cv-0364. (Resp., Dkt. 14-1,
at 4). It is dated as signed by Joseph on July 7, 2016.
(Resp., Dkt. 14-1, at 4). The final attachments are various W-2s
for Joseph from 2009 through 2013, and bank statements for an
account of Joseph's at the Bank of America from 2013 and
2014. (Resp., Dkt. 14-1, at 6-23). The government did not
reply to Joseph's response.
March 10, 2017, the Magistrate Judge entered his Report and
Recommendation. It recommended that the government's
motion to strike be granted and that Joseph's answer be
struck from the record. (Report & Recommendation, Dkt.
19, at 6). It used a test from the Eleventh Circuit to
consider whether a court should, in its discretion, allow a
late claim under Rule G. (Id. at 4-6). In applying
that test to this case, however, the report ignored
Joseph's response to the government's motion to
strike-it specifically stated that “as of the signing
of this report, Joseph has failed to file any claim as to the
[Respondent Property], ” without considering whether
Joseph's January 20, 2017 response included a claim.
(Id. at 3). In addition, it did not address the
possible relevance of that filing to the test it employed.
(See Id. at 4-6).
Report and Recommendation explained that the parties had
fourteen days in which to file objections to findings and
recommendations it contained. (Id. at 7). No
objections were filed.
Review of a Magistrate Judge's Report and
party may contest the Magistrate Judge's findings and
recommendations by filing written objections within fourteen
days of being served with a copy of the Memorandum and
Recommendation. 28 U.S.C. § 636(b)(1)(C). The objections
must specifically identify those findings or recommendations
that the party wishes to have the district court consider.
Thomas v. Arn, 474 U.S. 140, 151 (1985). The Court
must conduct a de novo review of any of the Magistrate
Judge's conclusions to which a party has specifically
objected. See 28 U.S.C. § 636(b)(1)(C)
(“A judge of the court shall make a de novo
determination of those portions of the report or specified
proposed findings or recommendations to which objection is
made.”). On the other hand, findings to which no
specific objections are made do not require de novo review;
the Court need only determine whether the Memorandum and
Recommendation is clearly erroneous or contrary to law.
United States v. Wilson, 864 F.2d 1219,
1221 (5th Cir. 1989).