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United States v. Approximately $94600 U.S. Currency

United States District Court, E.D. Wisconsin

May 27, 2016

UNITED STATES OF AMERICA, Plaintiff,
v.
APPROXIMATELY $94, 600 U.S. CURRENCY, ONE 2005 BENTLEY CONTINENTAL GT COUPE VIN #SCBCR63W65CO29162, ONE CUSTOM HAND-MADE 3-D DIAMOND SHIELD PENDANT BEARING INITIALS “HK, ” ONE LADIES’ BREITLING CUSTOM BLACK MOTHER-OF-PEARL DIAMOND WATCH, and ONE MEN’S 10-KARAT YELLOW GOLD DIAMOND BRACELET, Defendants. TYRONE MCMILLIAN and MILWAUKEE COUNTY CHILD SUPPORT ENFORCEMENT, Claimants.

         ORDER DENYING CLAIMANT’S MOTION TO VACATE (DKT. No. 62), APPROVING STIPULATION FOR COMPROMISE SETTLEMENT WITH CLAIMANT MILWAUKEE COUNTY CHILD SUPPORT SERVICES (DKT. NO. 63), GRANTING GOVERNMENT’S MOTION FOR JUDGMENT OF FORFEITURE AND DEFAULT JUDGMENT AS TO THE DEFENDANT APPROXIMATELEY $94, 600.00 IN UNITED STATES CURRENCY (DKT. NO. 66), AND DENYING CLAIMANT’S MOTION TO STAY (DKT. NO. 74)

          HON. PAMELA PEPPER United States District Judge

         INTRODUCTION

         On September 9, 2015, the court entered a decision and order denying the claimant’s motion to compel disclosures (Dkt. No. 34); denying the claimant’s motion to amend the answer (Dkt. No. 35); granting the government’s motion to strike the answer, dismiss the claim, and grant default judgment (Dkt. No. 38); denying the validity of the claim (Dkt. No. 43); granting the claimant’s motion for more time to answer interrogatories (Dkt. No. 48); denying the claimant’s motion to strike interrogatories (Dkt. No. 51); and denying the claimant’s motion to dismiss (Dkt. No. 52).[1]

         Since then, the parties have filed several pleadings and, in the case of the government, proposed orders. On September 28, 2015, claimant Tyrone McMillian filed a motion to vacate the September 9, 2015 order. Dkt. No. 62. On October 19, 2015, the government filed a stipulation for compromise of settlement with claimant Milwaukee County Child Support Services, Dkt. No. 63; a response to the claimant’s motion to vacate, Dkt. No. 64; a proposed partial judgment of default and forfeiture as to the four non-currency defendant properties, Dkt. No. 65; and a motion for judgment of forfeiture and motion for default judgment as to the defendant $94, 600, Dkt. No. 66. The claimant also has filed a motion asking the court to stay all proceedings in the forfeiture action until his habeas petition is resolved. Dkt. No. 74. This decision and order addresses all of these pleadings and proposed orders.

         I. CLAIMANT McMILLIAN’S MOTION TO VACATE (DKT. NO. 62)

         On September 28, 2015, claimant McMillian filed a motion to vacate default judgment under Federal Rules of Civil Procedure 55(c) and 60(b). Dkt. No. 62. Rule 55(c) allows the court to “set aside an entry of default for good cause, and it may set aside a final default judgment order under Rule 60(b).” Rule 60(b) allows the court to “relieve a party . . . from a final judgment, order, or proceeding.” The court may provide such relief “[o]n motion and just terms” if one or more of the following have occurred:

(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b).
(3) fraud . . ., misrepresentation, or misconduct by an opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or
(6) any other reason that justifies relief.

Fed. R. Civ. P. 60(b)(1)-(6). “The test is the same for relief under either Rule 55(c) or Rule 60(b), but it is more liberally applied in the Rule 55(c) context.” United States v. Di Mucci, 879 F.2d 1488, 1495 (7th Cir. 1989)). “Rule 55(c) uses the ‘good cause’ standard for relief before judgment has been entered, while referring to the standard under Rule 60(b) for relief after judgment. Rule 60(b) allows relief on account of mistake and inadvertence in addition to excusable neglect; the ‘good cause’ standard in Rule 55(c) must be easier to satisfy.” Sims v. EGA Products, Inc., 475 F.3d 865, 868 (7th Cir. 2007) (emphasis added).

         On September 9, 2015, the court granted the government’s motion for default judgment, and required the government to submit a proposed order granting default judgment. Dkt. No. 61 at 26. Before the government had submitted that proposed order, however, the claimant filed this motion to vacate the September 9, 2015 judgment. Dkt. No. 62. (On October 19, 2015, the government submitted the proposed partial judgment for the non-currency properties, Dkt. No. 65, and a motion for judgment of forfeiture and motion for default judgment as to the defendant $94, 600, Dkt. No. 66.) Because the court has not yet ...


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