United States District Court, D. Delaware
HONORABLE LEONARD P. STARK UNITED STATES DISTRICT JUDGE
before the Court is Plaintiff United States of America's
("Plaintiff') motion to strike the claim and answer
of Claimant Shawn Baker ("Claimant") pursuant to
Federal Rule of Civil Procedure 37(d) as a sanction for
Claimant's refusal to be deposed. (D.I. 35) For the
reasons stated below, IT IS HEREBY ORDERED that the motion to
strike Claimant's claim and answer (D.I. 35) is DENIED.
Plaintiff correctly observes, "striking the claim and
answer would have the same practical effect as entry of a
default judgment against Claimant because it would bar him
contesting the forfeiture of the Currency." (D.I. 35 at
4 n.2) Therefore, Plaintiffs motion is seeking a dispositive
Pursuant to Federal Rule of Civil Procedure 37(d), a court
may sanction a party who, "after being served with
proper notice, " nonetheless fails "to appear for
that person's deposition." When evaluating a Rule 37
sanction that would be "tantamount to default judgment,
" the court must weigh "(1) the extent of the
party's personal responsibility; (2) the prejudice to the
adversary caused by the failure to meet scheduling orders and
respond to discovery; (3) a history of dilatoriness; (4)
whether the conduct of the party or the attorney was willful
or in bad faith; (5) the effectiveness of sanctions other
than dismissal, which entails an analysis of alternative
sanctions; and (6) the meritoriousness of the claim or
defense." Poulis v. State Farm Fire & Cas.
Co., 747 F.2d 863, 868 (3d Cir. 1984); see also
Knoll v. City of Allentown, 707 F.3d 406, 409 (3d Cir.
2013) ("[W]e have required a Poulis analysis
when a district court imposes sanctions that are tantamount
to default judgment because they inevitably lead to liability
for one party.").
First, it appears Claimant is personally responsible for
failing to appear at his deposition. Plaintiffs brief states,
"Claimant's Counsel advised Plaintiff that Claimant
would not be appearing on the scheduled date" and that
"continued litigation would not be forthcoming."
(See D.I. 35 ¶ 10) (internal quotation marks
omitted) Claimant has not filed a response disputing this.
Thus, based on the limited record before the Court, it
appears Claimant was aware of the date and time of his
deposition and simply chose to not appear, making his absence
a product of his own decisionmaking, and not a function of
his counsel's failure to inform him of the deposition (or
any other reason for which Claimant should not be held
personally responsible). This weighs in favor of granting
Plaintiff has been prejudiced, at least to a limited degree,
by Claimant's behavior. Plaintiff has a need to take
Claimant's deposition, as "it is [Claimant's]
assertion of ownership that Plaintiff must overcome to obtain
forfeiture." United States v. $2, 164, 341 in U.S.
Currency, 2013 WL 321768, at *3 (D. Ariz. Jan. 28,
2013), aff'd sub nom. United States v.
Cornejo-Reynoso, 621 Fed.Appx. 495 (9th Cir. 2015).
Thus, Claimant's refusal to appear has delayed the
progression of this case towards trial and prejudiced
Plaintiff. See id.; see also Poulis, 747
F.2d at 868 (affirming finding of prejudice where party
"encountered lack of cooperation ... in areas where the
plaintiff should cooperate under the spirit of the federal
procedural rules") (internal quotation marks omitted).
However, Claimant's failure to appear is the first
instance of Claimant not cooperating with discovery, and
Plaintiff waited less than two months (without first filing a
motion to compel Claimant's attendance) to file the
instant motion. Thus, any prejudice Plaintiff has suffered is
not enough to warrant dismissing Claimant's claim.
See Scarborough v. Eubanks, 747 F.2d 871, 876 (3d
Cir. 1984) ("Examples of... prejudice [weighing
substantially in favor of dismissal] are the irretrievable
loss of evidence, the inevitable dimming of witnesses'
memories, or the excessive and possibly irremediable burdens
or costs imposed on the opposing party.").
There is a limited history of dilatoriness in this case. The
parties have exchanged multiple sets of interrogatories, and
all discovery deadline extensions appear to have been
requested in good faith. (See D.I. 14, 18, 20,
27-29, 31) Moreover, Plaintiff has never sought a discovery
order from the Court based on Claimant's behavior, and,
accordingly, Claimant has not violated any discovery order
compelling his appearance at a deposition or otherwise. Thus,
the record before the Court is bereft of bad faith dilatory
behavior by Claimant. This factor weighs strongly against
granting Plaintiffs motion.
Claimant's conduct appears to be willful. Given that
Claimant's counsel preemptively informed Plaintiff that
Claimant would not be appearing at the deposition and stated
that further litigation would not be forthcoming, the Court
concludes Claimant's failure to appear was deliberate.
Thus, while this is the first time Claimant has failed to
meet his discovery obligations, Claimant's counsel's
statements do evidence a degree of "callous
disregard" by Claimant for the proceedings that support
sanctions. Nat'l Hockey League v. Metro. Hockey Club,
Inc., 427 U.S. 639, 643 (1976).
Given that Claimant stated he no longer intends to
participate in this litigation (see D.I. 35 ¶
10), it is unclear whether an alternative sanction will be
effective in moving this case forward. However, the limited
record of dilatory behavior suggests a less drastic sanction
could perhaps be effective. In any event, allowing the case
to go forward (and provide Claimant a final opportunity to
meet his discovery obligations) would better serve the
interests of justice than striking the claim. See United
States v. $8, 221, 877.16 in U.S. Currency, 330 F.3d
141, 162 (3d Cir. 2003) ("recommend[ing] the resolution
of any doubts in favor of adjudication on the merits").
Finally, Claimant has raised a potentially meritorious
defense. (See D.I. 7) "A claim, or defense,
will be deemed meritorious when the allegations of the
pleadings, if established at trial, would support recovery by
plaintiff or would constitute a complete defense."
Poulis, 747 F.2d at 869-70. Claimant asserts that he
acquired the seized property through legitimate means
(revenue from his movies, loans, and investment), was using
the property for legitimate ends (to woo a potential
investor), and that he has no knowledge of, and did not
consent to, any illegal activity that may be associated with
the funds. (See D.I. 7 ¶ 3) Claimant's
allegations go beyond a bare denial of knowledge or consent
and, if proven at trial, would constitute a defense to
Plaintiffs forfeiture proceeding. See United States v.
Premises Known as 717 S. Woodward St., Allentown, Pa., 2
F.3d 529, 533 (3d Cir. 1993) ("A claimant resisting
forfeiture of property based on the innocent ownership
defense must prove by a preponderance of the evidence that
the activity giving rise to forfeiture occurred either
without the claimant's knowledge or without the
claimant's consent."). Thus, this factor weighs
against striking Claimant's claim.
balancing these factors, the Court concludes that striking
Claimant's claim and answer is not yet warranted. See
Poulis, 747 F.2d at 869 ("Dismissal must be a
sanction of last, not first, resort."). Claimant does
not have a history of dilatory behavior, has not disobeyed a
discovery order of the Court, and his allegations raise a
potentially meritorious defense. Thus, while Claimant's
failure to attend his deposition and counsel's statement
that "continued litigation would not be
forthcoming" are troubling, resort to the drastic
sanction of striking Claimant's claim and answer is not
yet appropriate. See $8, 221, 877.16 in U.S.
Currency, 330 F.3d at 161 ("[T]he sanction of
dismissal is disfavored absent the most egregious
Plaintiff may seek an order to compel Claimant's
attendance at his deposition, and Claimant is warned that
another failure to attend his deposition will result in
dismissal of his claim. See Hogan v. Raymond Corp.,
536 Fed.Appx. 207, 212 (3d Cir. 2013).
FURTHER ORDERED that the parties shall meet and confer and,
no later than February 16, 2018, submit a joint status
report, including their ...