United States Court of Appeals For the First Circuit

No. 17-1925

UNITED STATES,

Plaintiff, Appellee,

v.

2008 33' CONTENDER MODEL TOURNAMENT VESSEL, Bearing Registration Number PR-5418AC, Serial No. JDJ33175H708 and Two Engines,

Defendant - In Rem,

TANIA DE JESÚS-GÓMEZ; LUQUILLO BOAT GLASS, INC.,

Claimants, Appellants,

JULIO DE JESÚS-GÓMEZ,

Claimant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

[Hon. Aida M. Delgado-Colón, U.S. District Judge]

Before

Kayatta, Boudin, and Barron, Circuit Judges.

Luis Rafael Rivera Rodríguez on brief for appellants.

W. Stephen Muldrow, United States Attorney, Mariana E. Bauzá- Almonte, Assistant United States Attorney, Chief, Appellate Division, and Francisco A. Besosa-Martinez, Assistant United States Attorney, on brief for appellee. March 18, 2021 BOUDIN, Circuit Judge. In September 2012, the

government brought this civil forfeiture action against a 2008 33'

Contender Model Tournament Vessel, alleging that it had been used

in a money laundering and drug trafficking conspiracy. After

appellants repeatedly missed their discovery deadlines, the

district court entered default judgment in favor of the government.

This appeal followed.

After the government brought this case, the appellants

filed an answer, claiming they owned the boat. Appellants Julio

and Tania de Jesús Gómez then moved for a stay, arguing that

because they were defendants in a related criminal case,

participating in this civil case would endanger their Fifth

Amendment privilege against self-incrimination. The judge denied

the motion without prejudice and directed them to provide a status

update on the criminal case. None of the claimants ever provided

the requested update or renewed their motion to stay.

The government then served special interrogatories on

the appellants, seeking to establish the identities of the

claimants and their relationship to the defendant property. Supp.

R. Adm. or Mar. Cl. & Asset Forfeiture Actions G(6)(a). Appellants

failed to respond within the twenty-one-day deadline set by Rule

G(6). The day after the deadline passed, they moved for an

extension of time until January 5th, 2015. The court granted the

request but warned that it would not grant any further extensions.

- 3 - Again, appellants missed their deadline, and on January

7th they filed another motion asking for an extension until January

15th. True to its earlier warning, the district court denied this

motion. On January 20th, 2015, the government moved to strike the

appellants' answer and claims and sought default judgment. Only

then did the appellants answer the special interrogatories: On

January 26th, they filed an informative motion indicating that

they had served their answers on the government that day and

another motion opposing the government's motion to strike and

request for default judgment. The district court granted the

government's motion to strike their answer and claims. With no

claims left to be considered, the judge granted the government's

motion for default judgment.

On appeal, the appellants argue that the district court

abused its discretion by striking their claims and entering default

judgment. The proper answer to this argument is: "You must be

kidding." The more formal answer is that there was no abuse of

discretion. Rule G(8)(c)(i)(A) of the Supplemental Rules on

Admiralty or Maritime Claims and Forfeiture Actions states that

"[a]t any time before trial, the government may move to strike a

claim or answer . . . for failing to comply with Rule G(5) or (6)."

Rule G(6)(b) sets the twenty-one-day deadline for answering

special interrogatories. The supplemental rules do not discuss

when a motion to strike a claim or answer should be granted, except

- 4 - to note that "[n]ot every failure to respond to subdivision (6)

interrogatories warrants an order striking the claim" but "the

special role that subdivision (6) plays in the scheme for

determining claim standing may justify a somewhat more demanding

approach than the general approach to discovery sanctions under

[Federal Rule of Civil Procedure] 37." Supp. R. Adm. or Mar. Cl.

& Asset Forfeiture Actions, R. G Advisory Committee Notes.

This court has laid out a list of factors for judges to

consider when imposing discovery sanctions under Rule 37,

including whether the offending party was on notice of the

potential sanction and had the opportunity to argue against it, as

well as "the severity of the discovery violations, legitimacy of

the party's excuse for failing to comply, repetition of violations,

deliberateness of the misconduct, mitigating excuses, prejudice to

the other party and to the operations of the court, and adequacy

of lesser sanctions." AngioDynamics, Inc. v. Biolitec AG,

(1st Cir. 2015). The district judge used these

factors to guide her reasoning, and she did not abuse her

discretion in applying them.

The appellants were on notice that their claims might be

stricken given both Rule G(8)'s explicit authorization of a motion

to strike if they did not answer the interrogatories on time and

the judge's warning that she would not grant a second extension.

- 5 - They had the opportunity to explain their delay in their opposition

to the government's motion to strike.

Severity, repetition, and deliberateness weigh against

the appellants: they let the statutory deadline elapse before even

requesting their first extension, missed their extended (self-

imposed) deadline, and did not request a second extended deadline

until they had missed the first. And, had the court granted their

request for a second extension, they would have missed that one

too, as they did not answer the special interrogatories until

eleven days after the second extension would have expired. From

this repeated failure to meet self-imposed deadlines, the district

judge justifiably inferred that the appellants had deliberately

chosen to withhold discovery until their claims risked being

stricken. See Tower Ventures, Inc. v. City of Westfield,

(1st Cir. 2002).

The appellants argue that the prejudice factor weighs in

their favor, as the government did not argue that it was prejudiced

by their delay. But "the presence or absence of prejudice is not

determinative," and besides, this argument ignores the prejudice

to the court itself, which has a "strong institutional interest in

ensuring that litigants honor court orders" so that it may

efficiently administer its docket. Tower Ventures,

.

- 6 - The appellants assert two excuses: first, they say that

answering the interrogatories would burden their Fifth Amendment

right against self-incrimination. But they raised this issue in

their petition to stay this case. When the district court denied

the petition without prejudice, asking for a status update on the

criminal case, the appellants never provided any update or renewed

their stay application, and they never raised the Fifth Amendment

argument in either of their motions to extend time.

Second, they say Mr. de Jesús was in solitary confinement

during the time they failed to answer the interrogatories. But,

again, the appellants did not raise this argument in either of

their motions requesting extensions; they introduced it for the

first time in their opposition to the government's motion to

strike. Even crediting Mr. de Jesús's solitary confinement as the

reason he could not answer the interrogatories on time, appellants

do not explain why Ms. de Jesús did not have most, if not all, of

the necessary information to answer the interrogatories without

Mr. de Jesús's assistance.

Finally, appellants argue that a lesser sanction would

have been appropriate. Maybe so, but every other Angiodynamics

factor weighs against them, and Rule G(6) indicates a more

demanding approach than Rule 37 itself. The district judge was

well within her discretion to strike appellants' answer and claims

and grant the government's motion for default judgment.

- 7 - Affirmed.

- 8 -