Free Motion for Default Entry 55(a) - District Court of Connecticut - Connecticut

Case 3:00-cv-01910-EBB

Document 67

Filed 04/09/2007

Page 1 of 8

UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

UNITED STATES OF AMERICA,

) ) Plaintiff, ) ) v. ) ) $140,000.00 IN UNITED STATES ) CURRENCY SEIZED FROM ) ACCOUNT NO. 1215701749, HELD IN ) THE NAME OF ARTHUR F. GRANT, ) AT BANK OF AMERICA, ROLLING ) HILLS, CALIFORNIA, ) ) Defendant. ) )

Civil No. 3:00-cv-01910-EBB

RECEIVER-CLAIMANTS' JOINT APPLICATION FOR ENTRY OF DEFAULT PURSUANT TO FED. R. CIV. § 55(a) COMES NOW Claimants GEORGE DALE, Commissioner of Insurance for the State of Mississippi, in his official capacity as Receiver of Franklin Protective Life Insurance Company ("FPL"), Family Guaranty Life Insurance Company ("FGL"), and First National Life Insurance Company of America (collectively "FNL"), LESLIE A. NEWMAN, Commissioner for the Tennessee Department of Commerce and Insurance, in her official capacity as Receiver of Franklin American Life Insurance Company ("FAL"), KIM HOLLAND, Insurance Commissioner for the State of Oklahoma, in her official capacity as Receiver of Farmers and Ranchers Life Insurance Company in Liquidation ("F&RL"), JULIE BENAFIELD BOWMAN, Insurance Commissioner for the State of Arkansas, in her official capacity as Receiver of Old Southwest Life Insurance Company ("OSL"), DOUGLAS M. OMMEN, Director of the Missouri Department of Insurance, Financial Institutions and Professional Regulation, in his official capacity as Receiver of International Financial Services Life Insurance Company ("IFS"),

KC-1483328-1

Case 3:00-cv-01910-EBB

Document 67

Filed 04/09/2007

Page 2 of 8

(collectively, the "Receiver-Claimants"), by and through counsel, pursuant to Fed. R. Civ. P. 55(a) and hereby request that the Clerk enter a default against Arthur F. Grant ("Grant"). Grant is a Claimant in this proceeding to the Defendant Currency identified as: "$140,000.00 in United States Currency seized from Account No. 1215701749, held in the name of Arthur F. Grant, at Bank of America, Rolling Hills, California." For the reasons set forth below, the Court should grant this motion: 1. On October 31, 2000, Claimant Grant filed a Claim of Ownership alleging that he

is the owner of the Defendant Currency. 2. On November 30, 2000, Claimant Grant filed an Answer and Affirmative

Defenses to the United States' Verified Complaint of forfeiture. 3. On December 27, 2000, J. Stanley Sanders entered his appearance as attorney of

record for Claimant Grant. To date, J. Stanley Sanders remains attorney of record for Claimant Grant. 4. On February 11, 2005, Receiver-Claimants filed a Joint Cross-Claim against

Claimant Grant. The Receiver-Claimants served their Joint Cross-Claim in accordance with Fed. R. Civ. P. 5. See Affidavit of Terrance Summers, attached as Exhibit A. 5. A true and correct copy of the Joint Cross-Claim was sent to J. Stanley Sanders at

his address of record on February 11, 2005 as evidenced by the certificate of service. The certificate of service provides that a copy of the Joint Cross-Claim Against Arthur F. Grant "was delivered on the 11 day of February, 2005, via United States mail, first class postage prepaid to J. Stanley Sanders, 2015 Wellington Road, Los Angeles, CA 90016." 6. Receiver-Claimants assert in their Cross-Claim that Claimant Grant has no right

to or interest in the Defendant Currency.

KC-1483328-1

2

Case 3:00-cv-01910-EBB

Document 67

Filed 04/09/2007

Page 3 of 8

7.

Receiver-Claimants further assert that Claimant Grant has acted with unclean

hands in his dealings with one or more of the Insurance Companies. 8. No answer or other responsive pleading to the Joint Cross-Claim has ever been

filed by or on behalf of Claimant Grant. 9. The time for filing a responsive pleading or motion is long passed, and Receiver-

Claimants are entitled to entry of default in their favor. 10. On February 11, 2006, the Receiver-Claimants filed a Joint Motion for Default

Judgment on Cross-Claim against Claimant Grant, which was served on attorney Sanders at the same address as its Joint Cross-Claim was previously served in 2005. Although Claimant Grant filed an Opposition to the Receiver-Claimants' Motion for Default Judgment, he has never answered the Cross-Claims. 11. On November 9, 2006; the Court denied the Motion and directed the Receiver-

Claimants to move first for entry of default pursuant to Fed. R. Civ. P. 55(a). 12. After receiving the Court's Order, on December 15, 2006, counsel sent a letter, on

behalf of the Receiver-Claimants, to J. Stanley Sanders advising him that if his client, Grant, did not file a responsive pleading and responses to written discovery before December 31, 2006, that the Receiver-Claimants would seek to compel its responses and request sanctions. A copy of the December 15, 2006, letter is attached hereto as Exhibit B. 13. In response, Attorney Sanders contacted the Receiver-Claimants' counsel and

requested an extension until March 1, 2007, on behalf of Claimant Grant to file responsive pleadings and respond to the discovery. 14. On or about March 9, 2007, counsel sent Attorney Sanders an e-mail, on behalf of

the Receiver-Claimants, advising him that the March 1, 2007, deadline had passed without his

KC-1483328-1

3

Case 3:00-cv-01910-EBB

Document 67

Filed 04/09/2007

Page 4 of 8

client filing any response. On or about March 12, 2007, Attorney Sanders responded by e-mail and stated that he would file a response the week of March 11, 2007. Copies of the e-mails exchanged between attorneys are attached as Exhibit C. 15. On March 14, 2007, counsel sent a follow-up message to Attorney Sanders

regarding Claimant Grant's failure to plead or respond to discovery. A copy of the follow-up message dated March 14, 2007, is attached hereto as Exhibit D. 16. Fed. R. Civ. P. § 55(a) provides "when a party against whom judgment for

affirmative relief is sought has failed to plead or otherwise defend as provided by these rules and that fact is made to appear by affidavit or otherwise, the clerk shall enter the party's default." 17. Claimant Grant has failed to plead or otherwise defend any of the allegations of

the Receiver-Claimants or to respond to their written discovery despite having an extended period of time to do so. 18. In their Cross-Claim, the Receiver-Claimants have requested declaratory relief

that Claimant Grant has no title to or interest in or right to possess the Defendant Currency or any portion thereof and for recovery of their costs. Given Claimant Grant's complete inactivity in the case and lack of attention to this proceeding for almost seven years, despite having been properly served with the Receiver-Claimants' Joint Cross-Claim and written discovery, it is appropriate for the Clerk to enter a default in favor of the Receivers on their Joint Cross-Claim.

KC-1483328-1

4

Case 3:00-cv-01910-EBB

Document 67

Filed 04/09/2007

Page 5 of 8

WHEREFORE, for these reasons and pursuant to Fed. R. Civ. P. § 55(a), ReceiverClaimants respectfully requests that the Clerk enter default in favor of Receiver-Claimants and against Claimant Arthur F. Grant; and to grant such other, further, and additional relief which the Court finds the Receiver-Claimants to be entitled. Dated: April 9, 2007 New Haven, Connecticut

Respectfully submitted,

/s/ Douglas S. Skalka Douglas S. Skalka (ct00616) Neubert, Pepe & Monteith, P.C. 195 Church Street, 13th Floor New Haven, Connecticut 06510-2026 Telephone: (203) 821-2000 Facsimile: (203) 821-2009 Of Counsel and Douglas J. Schmidt MO # 34266 Terrance M. Summers MO # 38319 Patrick A. McInerney MO # 37638 Blackwell Sanders Peper Martin LLP 4801 Main, Suite 1000 Kansas City, Missouri 64112 Tel (816) 983-8000 Fax (816) 983-8080 Counsel for Douglas M. Ommen, Director of the Missouri Department of Insurance, Financial Institutions and Professional Regulation, in his official capacity as Receiver of INTERNATIONAL FINANCIAL SERVICES LIFE INSURANCE COMPANY and

KC-1483328-1

5

Case 3:00-cv-01910-EBB

Document 67

Filed 04/09/2007

Page 6 of 8

Alan F. Curley C. Philip Curley Cynthia H. Hyndman ROBINSON CURLEY & CLAYTON, P.C. 300 South Wacker Drive, Suite 1700 Chicago, Illinois 60606 Ph (312) 663-3100 and Charles G. Copeland (MS Bar #6516) Rebecca Blunden (MS Bar #99611) COPELAND, COOK, TAYLOR & BUSH, P.A. P.O. Box 6020 Ridgeland, Mississippi 39158 Ph (601) 856-7200 Fx (601) 856-7626 Counsel for GEORGE DALE, Commissioner of Insurance for the State of Mississippi, in his official capacity as Receiver of FRANKLIN PROTECTIVE LIFE INSURANCE COMPANY, FAMILY GUARANTY LIFE INSURANCE COMPANY, and FIRST NATIONAL LIFE INSURANCE COMPANY OF AMERICA and Andrew B. Campbell (TN 14258, CT Fed. 21433) Graham Matherne, Esq. WYATT, TARRANT & COMBS, LLP 2525 West End Avenue, Suite 1500 Nashville, Tennessee 37203-1423 Ph (615) 244-0020 Fx (615) 251-6661 Counsel for Leslie A. Newman, Commissioner for the Tennessee Department of Commerce and Insurance, in her official capacity as Receiver of FRANKLIN AMERICAN LIFE INSURANCE COMPANY and

KC-1483328-1

6

Case 3:00-cv-01910-EBB

Document 67

Filed 04/09/2007

Page 7 of 8

Susan B. Loving, Esq. LESTER, LOVING AND DAVIES 1701 South Kelly Edmond, Oklahoma 73013 Ph (405) 844-9900 Fx (405) 844-9958 Counsel for KIM HOLLAND, Insurance Commissioner for the State of Oklahoma, in her official capacity as Receiver of FARMERS AND RANCHERS LIFE INSURANCE COMPANY and Steve A. Uhrynowycz, Esq. Arkansas Insurance Department Liquidation Division 1023 W. Capitol Avenue, Suite 2 Little Rock, Arkansas 72201-1904 Ph (501) 371-2776 Fx (501) 374-0101 Counsel for JULIE BENAFIELD BOWMAN, Insurance Commissioner for the State of Arkansas, in her official capacity as Receiver of OLD SOUTHWEST LIFE INSURANCE COMPANY Attorneys for Receiver-Claimants

KC-1483328-1

7

Case 3:00-cv-01910-EBB

Document 67

Filed 04/09/2007

Page 8 of 8

UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

UNITED STATES OF AMERICA,

) ) Plaintiff, ) ) v. ) ) $140,000.00 IN UNITED STATES ) CURRENCY SEIZED FROM ) ACCOUNT NO. 1215701749, HELD IN ) THE NAME OF ARTHUR F. GRANT, ) AT BANK OF AMERICA, ROLLING ) HILLS, CALIFORNIA, ) ) Defendant. ) )

Civil No. 3:00-cv-01910-EBB

CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of the foregoing was delivered on the 9th day of April, 2007, via United States mail, first-class postage prepaid, to: John A. Danaher, III, U.S. Attorney John B. Hughes, Asst.U.S. Attorney David X. Sullivan, Asst. U.S. Attorney P.O. Box 1824 New Haven, CT 06508 Attorneys for Plaintiff United States of America J. Stanley Sanders 2015 Wellington Road Los Angeles, CA 90016 Attorney for Arthur F. Grant

/s/ Douglas S. Skalka Douglas S. Skalka

KC-1483328-1

8