Opinion
CASE NO. 07-20660-CR-LENARD/O'SULLIVAN
06-07-2012
UNITED STATES OF AMERICA, Plaintiff, v. NELSON GONZALEZ, Defendant.
ORDER
THIS CAUSE is before the Court on the Non-Party NG Express, Incorporated's Motion to Intervene and Motion to Recall and Quash Execution and Vacate Levy and Incorporated Memorandum of Law (DE# 87, 3/8/12), the Defendant's Motion to Quash Writ of Execution (DE# 102, 6/6/12) and the Motion to Quash Writ of Execution by Non-Parties, Alejandro Suarez and Edward Gonzalez (DE# 103, 6/6/12). Having reviewed the applicable filings and the law and having heard from the parties at the June 7, 2012 hearing, it is
ORDERED AND ADJUDGED that the defendant and the non-parties shall have until Monday, June 18, 2012, to file supplemental briefs in support of the Defendant's Motion to Quash Writ of Execution (DE# 102, 6/6/12) and the Motion to Quash Writ of Execution by Non-Parties, Alejandro Suarez and Edward Gonzalez (DE# 103, 6/6/12). The government shall have until Monday, July 2, 2012 to file a response. The defendant and the non-parties may file a reply no later than Thursday, July 12, 2012. It is further
ORDERED AND ADJUDGED that for the reasons stated on the record at the June 7, 2012 hearing, the Court finds that there was no prejudice to the defendant or to NG Express, Incorporated (hereinafter "NG Express") with respect to any failure by the government to comply with the notice requirement of 28 U.S.C. § 3202. The Court further finds that the defendant received notice through the Court's CM/ECF system and that NG Express subsequently became aware of the application for the Writ of Execution as evidenced by the instant filings. It is further
ORDERED AND ADJUDGED that for the reasons stated at the June 7, 2012 hearing, the Court finds that under the Federal Debt Collection Procedures Act, the claimant has the burden of proving ownership. The claimant must also demonstrate that it has more than record ownership, it was in control of the property and that the defendant did not have an equitable interest in the property. See United States v. West Indies Transport Co., Inc., 57 F. Supp. 2d 198, 202 (D. V.I. 1999). It is further
ORDERED AND ADJUDGED that on or before Thursday, June 14, 2012, the government shall provide the non-parties with a list of documents it seeks to obtain in discovery. The non-parties shall provide the documents to the government on or before Thursday, June 24, 2012. If the non-parties do not have tax documents in their possession, they shall provide the government with a written waiver so the government can obtain the documents from the IRS. It is further
ORDERED AND ADJUDGED that all discovery shall be completed by Friday, September 7, 2012. It is further
ORDERED AND ADJUDGED that the parties shall participate in mediation before a private mediator no later than Friday, September 28, 2012. The costs of the mediation shall be split between the parties. It is further
ORDERED AND ADJUDGED that a status hearing shall take place before the undersigned on Wednesday, October 3, 2012, at 10:30 AM, at the C. Clyde Atkins United States Courthouse, 301 North Miami Avenue, 5th Floor, Miami, Florida 33128. On or before Wednesday, September 26, 2012, the parties shall meet and exchange exhibit lists and witness lists. The parties shall attempt to agree to the admissibility of the exhibits and shall raise any evidentiary objections at the October 3, 2012 status hearing. It is further
ORDERED AND ADJUDGED that an evidentiary hearing on the Non-Party NG Express, Incorporated's Motion to Intervene and Motion to Recall and Quash Execution and Vacate Levy and Incorporated Memorandum of Law (DE# 87, 3/8/12) shall take place on Thursday, October 11, 2012, at 9:00 AM, before the undersigned at the C. Clyde Atkins United States Courthouse, 301 North Miami Avenue, 5th Floor, Miami, Florida 33128. If the Court determines that an evidentiary hearing on the Defendant's Motion to Quash Writ of Execution (DE# 102, 6/6/12) and the Motion to Quash Writ of Execution by Non-Parties, Alejandro Suarez and Edward Gonzalez (DE# 103, 6/6/12) is necessary, that hearing shall also take place on October 11, 2012. Request for continuance of this cause shall not be considered unless addressed to this Court in the form of a written motion.
DONE AND ORDERED in Chambers at Miami, Florida, this 7th day of June, 2012.
______________________
JOHN J. O'SULLIVAN
UNITED STATES MAGISTRATE JUDGE
Copies provided to:
United States District Judge Lenard
All Counsel of Record