Opinion
Case No: C 08-2458 SBA.
January 12, 2011
ORDER GRANTING PLAINTIFF'S UNOPPOSED MOTION FOR DEFAULT JUDGMENT Docket 133
The parties are presently before the Court on the unopposed Motion for Default Judgment filed by the United States of America ("the Government"). Dkt. 133. Having read and considered the papers filed in connection with this matter, as well as the record in this action, the Court hereby GRANTS the motion for the reasons set forth below. The Court, in its discretion, finds this matter suitable for resolution without oral argument. See Fed.R.Civ.P. 78(b); N.D. Cal. Civ. L.R. 7-1(b).
I. BACKGROUND
This is a judicial forfeiture action brought by the Government against currency in the amount of $73,562 ("the Currency"), pursuant to the the Civil Asset Forfeiture Reform Act of 2000, 18 U.S.C. § 983. The Currency is alleged to be money furnished or intended to be furnished in exchange for a controlled substance, 21 U.S.C. § 881(a)(6). This Court has previously made extensive findings in this case which are incorporated by reference herein.See 9/2/10 Order Adopting Report and Recommendation of Magistrate Judge, Dkt. 123; 11/1/10 Order Granting Plaintiff's Motion to Strike Eugene Brisco's Claim and Motion for Default Judgment, Dkt. 129.
In its Order of November 1, 2010, the Court, inter alia, granted the Government's unopposed motion to strike the claim and answer of Eugene Brisco ("Brisco") and entered default against him. Among other things, the Court found that Brisco had received proper notice of the proposed forfeiture, but failed to timely submit a claim and answer in accordance with the Supplemental Rules for Admiralty for Maritime Claims and Asset Forfeiture Actions ("Supplemental Rules"). 11/1/10 Order at 6. The Court directed the Government to file a motion for default judgment as to Brisco by no later than November 9, 2010, and for Brisco to file his opposition or statement of non-opposition to the Government's motion by no later than November 23, 2010. The Court expressly warned Brisco that the "failure to timely file an opposition that complies in all respects with the Civil Local Rules may be deemed to be a consent to the granting of the motion." Dkt. 129 at 9. The Government timely filed its motion and supporting documents. To date, the Court has received no response to the motion from Brisco.
The Court previously granted the Government's motion to strike the claim and answer filed by Brisco's wife, Raashida Moore-Brisco ("Moore"), Dkt. 123, and entered default judgment against her, Dkt. 129.
II. DISCUSSION
Admiralty Local Rule 6-2 provides that: "Judgment may be entered under FRCivP 55(b) at any time after default has been entered." The decision of whether to grant a request for default judgment under Rule 55(b) lies within the sound discretion of the district court. Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980). In exercising its discretion, the district court is guided by consideration of the following factors:
(1) the possibility of prejudice to the plaintiff; (2) the merits of plaintiff's substantive claim; (3) the sufficiency of the complaint; (4) the sum of money at stake in the action; (5) the possibility of a dispute concerning material facts; (6) whether the default was due to excusable neglect; and (7) the strong policy underlying the Federal Rules of Civil Procedure favoring decisions on the merits.Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986).
The failure to comply with the Court's briefing schedule is itself grounds for granting the Government's motion. See Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992) ("Pursuant to Federal Rule of Civil Procedure 41(b), the district court may dismiss an action for failure to comply with any order of the court."). Though not identical, the relevant inquiry germane to a Rule 41(b) dismissal is largely coextensive with the analysis applicable to a motion for default judgment. See Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002).
With regard to the Government's request for default judgment, the Court finds that in view of the record in this action, including the allegations set forth in the Government's verified Complaint, coupled with the prior findings made in this action, the Eitel factors weigh heavily in favor of granting the Government's motion.
First, a denial of default judgment would prejudice the Government. This action has been pending for more than two years due to the incessant, improper and largely frivolous motion practice occasioned by Brisco and Moore. Denying the Government's motion for default judgment would effectively facilitate Brisco and Moore's ability to continue their obstructionist tactics, to the detriment of the Government. In addition, further proceedings are unnecessary and would require the Government to expend further time and effort in an action where no valid claims or answers have been filed.
Second, the Government's claims have merit, as demonstrated by the well-pleaded verified allegations of the Complaint and the overwhelming evidence establishing that the Currency is money furnished or intended to be furnished in connection with narcotics trafficking. Specifically, the Government has shown that the Currency, along with cocaine, several firearms, ammunition, a scale with drug residue, a hot plate, baggies and other indicia of drug dealing, were found in the closet located in the master bedroom shared by Moore and Brisco. The Currency was found bundled in specific increments and in small denominations, which is indicative of illegal drug trafficking. Significant evidence of illicit drug activity also was found hidden in a candy machine at Celebrity Hairstyles, a business operated by both Moore and Brisco. Following his arrest, Brisco admitted that the cocaine found at his home, business and on his person, as well as firearms and paraphernalia, belonged to him. He also pled guilty to state charges for possession of drugs for sale and related charges.
Third, the amount of defendant Currency, though not insubstantial, is not so large as to warrant denial of the motion. See United States v. Approximately $57,890 in U.S. Currency, No. C 10-01829 WHA, 2010 WL 3987397, at *4 (N.D. Cal., Oct. 12, 2010) (entering default judgment against $57,890 seized as money related to drug transactions); United States v. $86,496.00 in U.S. Currency, No. CV-07-1693-PHX-DGC, 2008 WL 2687141, at *2 (D. Ariz. 2008) (entering default against $86,496 "related to illegal drug trafficking"). In addition, the Court previously found that the entry of default judgment against the sum at issue is reasonable given the circumstances presented. 11/1/10 Order at 6.
Fourth, there is little, if any, likelihood of a dispute concerning the material facts. The Court has found that Brisco lacks standing to contest the Government's factual showing. 11/1/10 Order at 5. Moreover, as discussed above and in prior Orders, even if Brisco had standing, he cannot legitimately dispute the facts underlying the proposed forfeiture of the Currency. Likewise, Brisco has had ample opportunity to submit a claim consistent with the Supplemental Rules in order to challenge the Government's forfeiture, but failed to do so.
Fifth, there is no evidence that Brisco's default is due to excusable neglect. Since the inception of this action, both he and his wife have had notice of the proposed forfeiture of the Currency and were advised of the requirements to pursue a claim, consistent with the Supplemental Rules. In addition, the Court advised Brisco that he was required to file a response to the instant motion by no later than November 23, 2010. Nevertheless, Brisco has repeatedly ignored the Supplemental Rules and other procedural requirements and has failed to file any response to the instant motion.
Finally, although it preferable to decide a case on its merits, when no party has properly appeared to oppose the action (as is the case here), reaching a decision on the merits is an impractical task.
III. CONCLUSION
Having reviewed the Government's motion and the record in this action, and considering the Eitel factors as a whole, the Court concludes that the entry of default judgment is appropriate. Accordingly,
IT IS HEREBY ORDERED THAT:
1. The Government's Motion for Default Judgment as to Eugene Brisco is GRANTED.
2. Default judgment is entered in favor of the Government, and against Eugene Brisco and Raashida Moore-Brisco, with respect to the Currency ($73,562), which is hereby deemed FORFEITED to the Government for disposition by the Attorney General, as provided for by law.
3. The Clerk shall close the file and terminate any pending matters.
IT IS SO ORDERED.
Dated: January 12, 2011