United States District Court, W.D. Tennessee, Eastern Division
ORDER DENYING WITHOUT PREJUDICE PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND MOTION TO STRIKE CLAIMS OF SAFA CLAIMANTS, REJECTING IN PART AND ADOPTING IN PART REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE, AND REFERRING TO THE MAGISTRATE JUDGE PLAINTIFF'S REQUEST FOR AWARD OF ATTORNEY EXPENSES
J. DANIEL BREEN, Chief District Judge.
INTRODUCTION AND BACKGROUND
On September 23, 2013, the Plaintiff, the United States of America, filed a verified complaint of forfeiture as to certain property, including real property, businesses and bank accounts, pursuant to 21 U.S.C. § 881(a)(6) and (7) and 18 U.S.C. § 981(a)(1)(A). On January 3, 2014, Mahmoud "Steve" Safa, on his own behalf as well as that of Law Road Realty, Inc.; Riverside Petroleum, Inc.; Riverside Petroleum Lottery, Inc.; Safeco Energy, Inc.; Safeco Energy Lottery, Inc.; Safeco Petroleum, Inc.; Safeco Realty, Inc. and Safeco Transport, Inc., filed claims to the property sought to be forfeited. Safa and the enumerated entities, of which it is undisputed that Safa is owner, director and/or majority shareholder, are collectively referred to herein as the "Safa Claimants, " although Safa himself may individually be referred to herein as the "Claimant." Before the Court is the Government's motion for summary judgment on the Safa Claimants' claims (D.E. 86), to which said claimants have responded (D.E. 144). Also before the Court is the Plaintiff's motion to strike claims and answers of the Safa Claimants. (D.E. 124.)
The latter motion was referred to the United States magistrate judge for determination and/or report and recommendation on August 5, 2014. (D.E. 125.) In a report and recommendation, amended on September 18, 2014, Magistrate Judge Edward G. Bryant recommended that the Government's motion to strike the claims and answers of the Safa Claimants be granted. (D.E. 148.) He also recommended that an award of Plaintiff's reasonable expenses in filing the motion to strike was appropriate pursuant to Rule 37 of the Federal Rules of Civil Procedure. ( Id. ) On October 1, 2014, the Safa Claimants filed objections to the report and recommendation (D.E. 149), to which the Government responded (D.E. 150).
The following facts are undisputed for purposes of the instant motions. Safa was indicted by a federal grand jury in the Western District of Tennessee on June 24, 2013. The indictment charged him and eleven co-defendants with, among other things, conspiracy to distribute Schedule I controlled substances in violation of 21 U.S.C. § 846. The indictment contained criminal forfeiture allegations, which gave notice of the Government's intent to forfeit certain property, including that at issue in this matter. The indictment resulted in the issuance of a warrant for the arrest of Safa on July 15, 2013.
On April 15, 2014, the United States served Claimant with a notice of deposition, scheduled for June 3, 2014 at the United States Attorney's office in Jackson, Tennessee. He failed to appear and, through his counsel, advised the Government that there was no date upon which he could appear for deposition. As a consequence, the Plaintiff filed a motion to compel discovery, which was granted on July 2, 2014 by Judge Bryant pursuant to an order of reference. The magistrate judge's order directed Claimant to appear for deposition at the United States Attorney's office "at the time to be established by the United States Attorney." (D.E. 81 at 2.) The Plaintiff served a second subpoena on July 3, 2014 for Safa's appearance at a deposition set for July 23, 2014. Safa's counsel advised the Government in an email dated July 22, 2014 that he intended to return to the United States within three to six months, depending on the state of his ill father's health. (D.E. 137-1 at 2.) Again, he failed to appear.
The Government also propounded written discovery requests to Claimant, including the following interrogatory:
Be advised that on or about June 24, 2014, a warrant or process was issued for your apprehension by the United States District Court for the Western District of Tennessee in connection with the criminal case of United States v. Mahmoud "Steve" Safa, et al., No. 1:13-cr-10056-JDB, and is currently in force. Having been so advised, state whether you became aware of the warrant or process via this interrogatory or at some earlier time, being specific about the date upon which you became aware of the warrant or process and by what means; whether, and on what date, you left the jurisdiction of the United States; whether you are still outside the jurisdiction of the United States, being specific as to your current location; whether you are declining to enter or re-enter the United States to submit to its jurisdiction; and whether you are currently confined or held in custody in another jurisdiction for commission of criminal conduct in that jurisdiction.
(D.E. 144-1 at 6-7.) Safa responded thusly:
In February of 2013 I left the United States to return to Lebanon where I have children and sick, aged parents. I do not have a wife. In Lebanon I am completely responsible for my family and have been for some time. My father is in the hospital and I cannot return to the United States because of my responsibilities to my family. Because of the grave illness of my father and needs of my mother and children I cannot return to the United States at this time.
( Id. at 7.)
Judge Bryant set a hearing date of August 27, 2014 on the motion of Claimant BancorpSouth Bank for expedited consideration of its request for interlocutory sale. (D.E. 141.) At the hearing, the magistrate judge also addressed Safa's failure to appear for deposition. (D.E. 142.) He ordered Safa to appear within fourteen days and, if he failed to do so, advised that "further steps will be taken to ensure his appearance in this matter." ( Id. ) Another ...