United States v. $310,659.56 ( 1996 )

UNITED STATES COURT OF APPEALS
Filed 8/5/96
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 95-6405
v. (W.D. Oklahoma)
$310,659.56 IN U.S. CURRENCY, (D.C. No. CIV-94-804-L)
$16,425.00 IN U.S. CURRENCY; One 1994
Chevrolet Camaro Z-28 Oklahoma Tag
#QAX011, VIN 2GIFP22P5R2115922; One
1991 Cadillac Eldorado Oklahoma Tag
#YXP907, VIN 1G6EL13BXMU605192;
One 1987 Lincoln Town Car Oklahoma Tag
#XOJ180, VIN 1LNBM82F6HY610040; One
1988 GMC Pickup Truck Oklahoma Tag
#YNW463, VIN 1GTDC14K4JZ527725;
One 1987 Chevrolet Pickup Truck Oklahoma
Tag #VCI160, VIN 1GCER14K2HJ103682;
One 1986 Chevrolet Caprice Oklahoma Tag
#QAX753, VIN 1G1BN69H1GX1033914;
One 1978 Pontiac Bonneville Oklahoma Tag
#YSG353, VIN 2N69Z8X119430; One 1979
Chevrolet El Camino Oklahoma Tag
#QAW872, VIN 1W80H9K576834; One
1971 Chevrolet Pickup Truck Texas Tag
#4780ZQ, VIN CE141S6557675;
Defendants.
--------------------------
JESUS ROMERO and PETRA ROMERO,
Claimants - Appellants.
____________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 95-6416
v. (W.D. Oklahoma)
4408 NW 13TH STREET, OKLAHOMA (D.C. No. CV-94-740-L)
CITY, OK, REAL PROPERTY LOCATED
AT, with all appurtenances and improvements
legally described as Lots 5 and 6 in Block 24
in Corbin Park Addition to Oklahoma City,
OK County, according to the recorded plat
thereof,
Defendant,
and
JESUS M. ROMERO and PETRA
ROMERO,
Claimants - Appellants.
ORDER AND JUDGMENT*
Before ANDERSON, BARRETT, and MURPHY, Circuit Judges.
*
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
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After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered
submitted without oral argument.
Jesus Romero and Petra Romero appeal the district court’s orders denying their
motions to vacate the default judgments entered in these related civil in rem forfeiture
actions. We affirm.
In May 1994, the United States filed separate complaints in rem seeking civil
forfeiture of real property, cash, and vehicles seized along with drugs, weapons, and
paraphernalia in connection with a search of the Romeros’ residence. The Romeros never
answered the complaints. In August 1994, the United States filed a motion for default
judgment in each case. The Romeros did not respond, and on September 1, 1994, the
district court granted the motion in each case. On October 19, 1994, the Romeros moved
the court to vacate or set aside its default judgments pursuant to Fed. R. Civ. P. 55(c) and
60(b). The district court denied the motions, and these appeals ensued.
We review the district court’s denial of a motion to set aside default judgment
under Rules 55(c) and 60(b) for abuse of discretion. United States v. Timbers Preserve,
999 F.2d 452, 454 (10th Cir. 1993). A district court has discretion to vacate a judgment if
a movant shows good cause within the terms of Rule 60(b). Id. In cases involving
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default judgments, we have established the additional requirement that a movant
demonstrate the existence of a meritorious defense. Id.; Olson v. Stone (In re Stone), 588
F.2d 1316, 1319 (10th Cir. 1978).
The Romeros argue first that they are Hispanic with little educational background
and have limited ability to communicate in English. The record in each case reflects,
however, that the Romeros were represented by counsel who knew before the government
submitted its motions that no answers had ever been filed, who knew that motions for
default would be and were filed, and who could adequately communicate with his clients.
See Appellant’s App. (No. 95-6416) at 18, 30, 32, 70-71, 96-97; Appellant’s App. (No.
95-6405) at 42, 83-84; 112-13. This argument fails.
The Romeros next argue that they believed counsel for their son or their own
previous counsel had answered the complaint. They submit no facts, however, that would
justify their concluding that answers were ever filed; nor do they explain the basis for this
belief; nor do they elucidate why their own counsel, who entered an appearance in both
cases on June 9, 1994, did not take such elementary steps as (1) checking the files to see
if answers had been submitted; (2) attempting to file answers or other pleadings after
learning that no answers had ever been filed; (3) responding in any manner to the
government’s motions for default judgment; or (4) moving immediately to vacate the
judgments after they had been entered. Nor do the Romeros have a valid explanation for
supposedly relying on someone other than their own counsel to represent their interests in
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the courts, an unreasonable proposition at best. Such neglect is chargeable to the
Romeros, who have failed to demonstrate why it should be considered excusable in these
circumstances, see Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. Partnership, 507
U.S. 380, 394-97 (1993), or how it meets any of the Rule 60(b) criteria.
The Romeros also argue that Jesus Romero was actively involved in criminal plea
negotiations that involved attempted in personam forfeiture of the same property
implicated in the civil in rem actions. However, as the district court recognized, “[a]
claimant who fails to appear in a civil forfeiture action because a criminal action is
pending does so at his own peril.” See United States v. 51 Pieces of Real Property, 17
F.3d 1306, 1317 n.13, 1319 (10th Cir. 1994) (rejecting belated attempt to file civil in
rem claim after criminal action completed); United States v. One 1979 Rolls-Royce
Corniche Convertible, 770 F.2d 713, 716 (7th Cir. 1985) (“Just because the claimant was
under criminal investigation and possible grand jury indictment do not excuse him from
attending the civil forfeiture proceedings being had against his property.”); see also
Suppl. Fed. R. Civ. P. C(1) (“[A] party who may proceed in rem may also . . . proceed in
personam against any person who may be liable.”). The Romeros submit no facts to
explain how the pending criminal case kept them from responding -- in even the briefest
of fashions -- in the civil cases. Moreover, criminal action against Petra Romero had
already terminated more than one month before the government sought default judgments.
The record also belies their related contention that they were led to believe the civil cases
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had been stayed, as the evidence shows their counsel had actual knowledge that no
answers were filed in either case and that the government would and did seek default
judgments. See supra, p. 4.
The Romeros raise additional arguments for the first time on appeal, which we do
not consider. United States v. Griffin, 48 F.3d 1147, 1151 n.6 (10th Cir.), cert. denied,
115 S. Ct. 2630 (1995). Because they have failed to show good cause under Rule 60(b)
for vacating the district court’s default judgments in these cases, we need not address
whether they could present meritorious defenses to the government’s complaint in either
case.
The orders denying the motions to vacate judgment in both cases are AFFIRMED.
ENTERED FOR THE COURT
Stephen H. Anderson
Circuit Judge
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