     Case: 13-41299   Document: 00512864755        Page: 1   Date Filed: 12/10/2014




          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT


                                    No. 13-41299                  United States Court of Appeals
                                                                           Fifth Circuit

                                                                         FILED
UNITED STATES OF AMERICA,                                         December 10, 2014
                                                                    Lyle W. Cayce
             Plaintiff - Appellee                                        Clerk

v.

REAL PROPERTY KNOWN AS 200 ACRES OF LAND NEAR FM 2686 RIO
GRANDE CITY, TEXAS

             Defendant

DR. CARLOS RICARDO TIRADO TAMEZ,

             Claimant - Appellant




             Appeal from the United States District Court for the
                         Southern District of Texas


Before STEWART, Chief Judge, and JONES, and HIGGINSON, Circuit
Judges.
CARL E. STEWART, Chief Judge:
               I. FACTUAL AND PROCEDURAL HISTORY
      Plaintiff-Appellee (“United States”) filed a civil forfeiture complaint
(“Complaint”) in rem on 200 acres of land near Farm to Market Road 2686 in
Rio Grande City, Starr County, Texas (“Property”). The United States alleged
Carlos Alberto Oliva-Castillo (“Oliva”) to be the true owner of the Property and
that Oliva purchased the property with proceeds from the sale of illegal drugs.
    Case: 13-41299    Document: 00512864755      Page: 2   Date Filed: 12/10/2014



                                 No. 13-41299
Oliva’s criminal case is ongoing in the Southern District of Texas. A copy of
the Complaint was posted on the Property by agents of the Department of
Homeland Security Investigations. On December 23, 2011, the United States
also published notice of the forfeiture action on an official government internet
website—www.forfeiture.gov—for at least thirty consecutive days pursuant to
Rule G(4)(a)(iv)(C) of the Supplemental Rule for Admiralty or Maritime Claims
and Asset Forfeiture Actions (“Supplemental Rule G”). On December 7, 2011,
and December 28, 2011, Dr. Carlos Ricardo Tirado Tamez (“Dr. Tirado”) filed
an answer and amended answer, respectively, to the Complaint claiming to be
the owner of the Property. Upon motion by the United States, the district court
struck Dr. Tirado’s responses for failure to file a sworn claim under
Supplemental Rule G.
      In February 2012, Dr. Tirado and his wife Cristina Rodriguez de Tirado
(collectively, “Claimants”) filed a special appearance, a motion to quash and
dismiss for insufficient process and service (“Motion to Quash”), a motion to
dismiss for improper venue (“Venue Motion”), verified claims, a response, and
an answer. The court denied the motions to quash and dismiss. In further
attempts to serve Dr. Tirado, the United States executed a Mutual Legal
Assistance Treaty Request (“MLAT Request”) through the Treaty on
Cooperation between the United Mexican States and the United States of
America for Mutual Legal Assistance (“Treaty”) to Mexico.           After many
attempts by Mexican authorities to serve Claimants via the MLAT, the United
States unsuccessfully attempted service via certified international mail and by
email to counsel for Dr. Tirado.           The United States then moved to
constructively serve Dr. Tirado by publication in Texas, which the district court
granted. On April 3, 2013, the district court found that constructive service of
process had been accomplished and permitted the parties to begin discovery.
Dr. Tirado failed to provide initial disclosures to the United States as ordered
                                       2
    Case: 13-41299     Document: 00512864755     Page: 3   Date Filed: 12/10/2014



                                  No. 13-41299
by the magistrate judge. The United States served requests for production on
the Claimants on April 17, 2013, by certified mail. On May 28, 2013, the
United States sent a copy of the same requests via facsimile and email—along
with a letter requesting receipt of production. Claimants did not respond.
      Claimants were scheduled for depositions on June 20, 2013. Notice of
the depositions was received at the office of Dr. Tirado’s counsel on May 20,
2013. On June 7, 2013, the Magistrate Judge denied Dr. Tirado’s motion to
stay the case and granted in part the United States’ motion to compel
discovery.   The court gave Dr. Tirado until June 17, 2013, to turn over
documents to the United States relating to the Property, as the United States
needed these documents before the scheduled depositions. The court warned
that further discovery failures could lead to sanctions, including striking of the
pleadings. The United States filed a show cause motion on June 18, 2013, as
to why Dr. Tirado had not turned over any of the requested documents. At the
show cause hearing, the court again ordered production of the requested
documents and ordered the depositions to go forward as scheduled. Claimants
and counsel for Claimants failed to appear at the depositions on June 20, 2013.
      The United States moved the court to sanction the Claimants for failure
to obey the court’s discovery orders by striking their pleadings with prejudice
and requiring Claimants to pay the reasonable expenses incurred as a result
of their failure to appear for the depositions. Pursuant to Federal Rule of Civil
Procedure 37, the district court granted the United States’ motion for sanctions
and entered default judgment against the Claimants. On November 26, 2013,
the district court entered an agreed final judgment of forfeiture against the
Property. Dr. Tirado appeals the default judgment and the final judgment of
forfeiture arguing improper venue, insufficient service of process, and violation
of his due process rights due to the default judgment.


                                        3
    Case: 13-41299     Document: 00512864755      Page: 4   Date Filed: 12/10/2014



                                  No. 13-41299
                               II. DISCUSSION
      A. Venue
      We review all questions concerning venue for abuse of discretion. In re
Volkswagen AG, 371 F.3d 201, 203 (5th Cir. 2004) (per curiam); United States
v. Asibor, 109 F.3d 1023, 1037 (5th Cir. 1997). Dr. Tirado argues that venue is
improper in the Corpus Christi Division of the Southern District of Texas
because the Property is located in the McAllen Division of the Southern
District of Texas. Dr. Tirado thus argues the case must be dismissed because
28 U.S.C. § 1406(a)—which discusses the cure of venue defects—requires that
“[t]he district court of a district in which is filed a case laying venue in the
wrong division or district shall dismiss” the case.
      Chapter 87 of Title 28 of the United States Code contains venue statues,
and Chapter 85 contains statutes related to jurisdiction. 28 U.S.C. §§ 1330−69,
1390−1413. The venue statute related to in rem civil forfeiture states “[a] civil
proceeding for the forfeiture of property may be prosecuted in any district
where such property is found.” § 1395(b) (emphasis added). The jurisdictional
statute related to civil forfeiture allows such actions to be brought in either
“the district court for the district in which any of the acts or omissions giving
rise to the forfeiture occurred” or “any other district . . . specifically provided
for in” § 1395. § 1355(b)(1)(A), (B) (emphasis added).
      The Property in this case is in Starr County, which is in the McAllen
Division of the Southern District of Texas. The fact that it is located in the
territory covered by the McAllen Division does not make venue improper in the
Corpus Christi Division because both divisions are within the Southern
District of Texas. See § 1395(b). Had Congress intended to limit venue for in
rem civil forfeiture to the division in which the property lies, it would have so
stated. Additionally, 21 U.S.C. § 881(j) states that:


                                        4
    Case: 13-41299     Document: 00512864755      Page: 5    Date Filed: 12/10/2014



                                  No. 13-41299
      [i]n addition to the venue provided for in section 1395 of title 28 or
      any other provision of law . . . a proceeding for forfeiture under this
      section may be brought in the judicial district in which the
      defendant owning such property is found or in the judicial district
      in which the criminal prosecution is brought.
(emphasis added). Oliva’s criminal prosecution is ongoing in the Southern
District of Texas. Thus, under this statute, venue is also appropriate in the
Corpus Christi Division of the Southern District of Texas, as no distinction is
made by § 881(j) about what division within the district is appropriate.
Congress, via 28 U.S.C. §§ 1355(b)(1), 1395(b), and 21 U.S.C. § 881(j),
specifically clarified venue requirements in civil forfeiture cases. None of these
statutes require filing the case within a specific division of a district.
      Moreover, no Fifth Circuit caselaw supports Dr. Tirado’s contention. Our
caselaw is scant on the issue of improper venue based on a filing in the wrong
division, but one district court case, discussing the general venue statute for
civil cases, sheds light: “28 U.S.C. § 1391[] speaks in terms of districts not
divisions . . . . Thus, if venue is proper in the Houston Division of the Southern
District of Texas it is ipso facto proper in the Galveston Division—as well as in
the Divisions of Corpus Christi, Victoria, Brownsville, McAllen and Laredo.”
Says v. M/V DAVID C DEVALL, 161 F. Supp. 2d 752, 753 (S.D. Tex. 2001).
Numerous lower courts within the Fifth Circuit have cited Says for this
proposition, but we have not held as such. See, e.g., Lacour v. Thompson, No.
13-3169, 2014 WL 3542120, at *1 n.1 (W.D. La. July 16, 2014). The issue of
whether a particular division within a district can be improper under the
general venue statute, § 1391, is not before us, however. The narrow issue
presented is whether, in an in rem civil forfeiture case, venue is improper when
the property lies outside of the division where the action was filed, but within
the same district. To that end, Congress has spoken in terms of districts, not
divisions. See 28 U.S.C. §§ 1355(b)(1), 1395(b); 21 U.S.C. § 881(j). As such, we

                                         5
    Case: 13-41299      Document: 00512864755        Page: 6    Date Filed: 12/10/2014



                                    No. 13-41299
hold that in an in rem civil forfeiture case, if venue is proper in a district, it is
proper in any division within that district. 1 The district court did not abuse its
discretion in denying Dr. Tirado’s Venue Motion, and we affirm.
      B. Service of Process
      We next consider whether the district court erred in authorizing service
of process by publication. We review the district court’s determination of facts
in a forfeiture case for clear error. United States v. Turner, 460 F. App’x 346,
347 (5th Cir. 2012) (per curiam). We review district court rulings on motions
to quash service for abuse of discretion. Gartin v. Par Pharm. Cos., Inc., 289
F. App’x 688, 691−92 (5th Cir. 2008) (per curiam). Dr. Tirado argues the
United States was required to use the method of process set out in the Hague
Convention on the Service Abroad of Judicial and Extrajudicial Documents
(“Hague Convention”) instead of the MLAT.
      If the defendant in an in rem forfeiture action is real property, the
government must proceed in accordance with 18 U.S.C. § 985.                          See
Supplemental Rule G(3)(a). Section 985 requires that if the property owner
cannot be served with notice of the forfeiture because the owner “resides
outside the United States and efforts at service pursuant to [Fed. R. Civ. P. 4
(“Rule 4”)] are unavailing . . . constructive service may be made in accordance
with the laws of the State in which the property is located.” § 985(c)(2)(B), (C).
Rule 4(f) sets out the means to serve an individual outside the United States
and includes the catchall “by other means not prohibited by international
agreement, as the court orders.” Fed. R. Civ. P. 4(f)(3). It also allows service
of foreign individuals “by any internationally agreed means of service that is
reasonably calculated to give notice, such as those authorized by the Hague



      1 It is true that this case may be more convenient in the McAllen Division, but Dr.
Tirado did not move to transfer venue for convenience under 28 U.S.C. § 1404(a).
                                           6
     Case: 13-41299      Document: 00512864755         Page: 7    Date Filed: 12/10/2014



                                      No. 13-41299
Convention.” Id. 4(f)(1) (emphasis added). Moreover, the Hague Convention
does not apply when the address of the person to be served is unknown. Hague
Service Convention, art. 1, Nov. 15, 1965, 20 U.S.T. 361.
       For service of process in foreign countries, Texas Rule of Civil Procedure
109 allows for service by publication if the address of the individual is
unknown, despite diligent efforts to locate the individual, and there has been
an unsuccessful attempt under Rule 108a to obtain personal service. Tex. R.
Civ. P. 109. Texas Rule of Civil Procedure 108a allows for personal service of
a party in a foreign country “as directed by [a] foreign authority in response to
. . . a letter of request” or “in the manner provided by Rule 106.” Tex. R. Civ.
P. 108a(1)(b), (c).    Rule 106 allows for service by personal delivery or by
registered or certified mail. Tex. R. Civ. P. 106(a)(1), (2).
       Thus, in an in rem civil forfeiture action in federal court involving
property located in Texas, constructive service is allowed for foreign
individuals according to the laws of Texas, but only after efforts to serve the
individual under Fed. R. Civ. P. 4 have been attempted.                      18 U.S.C. §
985(c)(2)(C). Contrary to Dr. Tirado’s argument, to comply with Rule 4, the
United States was not required to use the method of service laid out in the
Hague Convention, but instead could use “other means not prohibited by
international agreement, as the court order[ed].” Fed. R. Civ. P. 4(f)(3). The
United States made attempts to serve the Claimants in compliance with Rule
4 by submitting an MLAT Request from the Department of Justice’s Office of
International Affairs to the Central Authority of the United Mexican States to
request the assistance of the Mexican authorities to properly serve the
Claimants. 2 The Mexican authorities summoned Dr. Tirado to appear on



       2Dr. Tirado claims the use of the MLAT Request was improper because the Treaty
only applies to criminal proceedings. This is plainly wrong, as the Treaty covers “ancillary
                                             7
    Case: 13-41299      Document: 00512864755        Page: 8    Date Filed: 12/10/2014



                                    No. 13-41299
February 24, 2012 at the Mexican Attorney General’s office in the state of
Tamaulipas. The Mexican authorities also went to Dr. Tirado’s listed address
in the city of Diaz Ordaz and left notice in the mailbox.               The Mexican
authorities again visited the listed address and spoke to an individual there
who said she would notify the Claimants of their visit.                 The Mexican
authorities also attempted to visit a listed address in the city of Rio Bravo, but
no home existed at that address.
      After unsuccessful attempts under Rule 4(e)(3) via the MLAT Request,
federal law allowed the United States to serve Dr. Tirado via constructive
notice in accordance with the laws of Texas. See 18 U.S.C. § 985(c)(2)(C).
Before publication, Texas law first required the United States to attempt to
serve Dr. Tirado in-person or via mail under Rule 106, which it did via mail to
the Diaz Ordaz address. See Tex. R. Civ. P. 106, 108a(1)(c). Alternatively,
Rule 108 allowed the United States to rely on the Mexican authorities’
attempts of service made under the MLAT Request.                 See Tex. R. Civ. P.
108a(1)(b). In an abundance of caution, the United States also posted notice
on the Property, emailed counsel for Dr. Tirado, and published notice on an
official government website. After these unsuccessful efforts at service, the
district court deemed the address of Dr. Tirado unknown under Rule 109. The
district court then allowed service of Dr. Tirado by publication. See Tex. R.
Civ. P. 106, 109.
      We agree that, given the extensive yet unsuccessful measures taken by
the United States to locate Dr. Tirado, his address was unknown. We agree
that the United States’ efforts to serve Dr. Tirado through the MLAT Request
and its own means constitute due diligence sufficient to allow service by



proceedings of any other kind related to the criminal acts in question.” MLAT U.S.-Mex.,
Art. 1, Cl. 1.
                                           8
    Case: 13-41299    Document: 00512864755     Page: 9   Date Filed: 12/10/2014



                                 No. 13-41299
publication under Tex. R. Civ. P. 109. The district court did not abuse its
discretion in finding that the Claimants had been properly served.
      C. Default Judgment
      Dr. Tirado also argues the district court’s striking of his pleadings, as a
sanction for noncompliance with its discovery orders, was improper.          The
striking of the pleadings led to a default judgment against the Claimants. Dr.
Tirado argues the default judgment violated his Due Process rights because
the sanctions were too severe, the magistrate court was without power to order
initial disclosures, Dr. Tirado had no burden of production for documents not
in his possession, and the depositions were improperly scheduled in Corpus
Christi, Texas.
      We review a grant of sanctions under Fed. R. Civ. P. 37 (“Rule 37”) that
results in the entry of default judgment for abuse of discretion. United States
v. $49,000 Currency, 330 F.3d 371, 376 (5th Cir. 2003) (citing Smith v. Smith,
145 F.3d 335, 344 (5th Cir. 1998)). “[W]here a district court awards default
judgment as a discovery sanction, two criteria must be met.” Id. (citation
omitted). “First, the penalized party’s discovery violation must be willful.” Id.
(citation omitted). Second, “the drastic measure is only to be employed where
a lesser sanction would not substantially achieve the desired deterrent effect.”
Id. (citation omitted).   We may “consider whether the discovery violation
prejudiced the opposing party’s preparation for trial, and whether the client
was blameless in the violation.” Id. (citing Batson v. Neal Spelce Assocs., Inc.,
765 F.2d 511, 514 (5th Cir. 1985)).
      Dr. Tirado, after being properly constructively served, repeatedly failed
to comply with court-ordered discovery. Dr. Tirado failed to provide initial
disclosures, failed to respond to requests for production that the United States
required in order to properly depose the Claimants, and—without seeking a
protective order—failed to appear at scheduled depositions. The court gave Dr.
                                       9
   Case: 13-41299    Document: 00512864755      Page: 10   Date Filed: 12/10/2014



                                 No. 13-41299
Tirado multiple chances to comply with its orders and even warned him and
his counsel several times as to the possible consequences of noncompliance
with its orders. Dr. Tirado willfully chose not to comply. Thus, the first
requirement for sanctions resulting in default judgment is met. See $49,000
Currency, 330 F.3d at 376.      Additionally, the trial court was within its
discretion in granting default judgment because there is no evidence that, after
seventeen months of litigation, Dr. Tirado would begin to comply with the
court’s orders regarding discovery after the imposition of some lesser sanction.
See id. As failure to provide any and all information requested would certainly
prejudice the United States, and Dr. Tirado has not shown he is blameless in
his noncompliance, the district court did not abuse its discretion in awarding
sanctions that resulted in default judgment. See id at 377.
      Regarding the initial disclosures, Fed. R. Civ. P. 26(a)(1) (“Rule 26”)
covers initial disclosures that are automatic, and thus the exemptions set out
in subsection (B) only exempt automatic initial disclosures in federal in rem
forfeiture proceedings. Fed. R. Civ. P. 26(a)(1)(B)(ii). The magistrate judge
was within her discretion to supplement or modify initial disclosures required
by Rule 26. See Fed. R. Civ. P. 26, Advisory Committee Note, 1993 Amendment
(stating that “[b]y order the court may eliminate or modify the disclosure
requirements in a particular case[.]”).    The court deemed the Claimants
constructively served with process on April 3, 2013. The initial disclosures
were ordered on April 18, 2013. Requiring these “initial” disclosures seventeen
months into the case was within the “broad discretion [the district court has]
in its resolution of discovery problems.” In re Multi-Piece Rim Prods. Liab.
Litig., 653 F.2d 671, 679 (D.C. Cir. 1981). As the 2006 Amendment note to
Rule 26 states, civil forfeiture actions were added as an exempt category
because “[d]isclosure is not likely to be useful.” Here, the court determined
they were useful. Further, although the court required the same information
                                      10
    Case: 13-41299    Document: 00512864755     Page: 11   Date Filed: 12/10/2014



                                 No. 13-41299
contained in Rule 26(a)(1) to be submitted, this is not the sort of automatic
initial disclosure that generally occurs in a case. Requiring the submission of
this information after Dr. Tirado has filed a claim in the case and was deemed
constructively served was not an abuse of discretion.
      Dr. Tirado also argues he had no burden of production for documents not
in his possession. Mere noncompliance with discovery requests will not suffice;
Dr. Tirado was required under Rule 26(g) to respond in a signed writing
objecting to the discovery requests stating the reason for his objection. Fed. R.
Civ. P. 26(g).
      Lastly, regarding the location of the depositions, Dr. Tirado did not seek
a protective order under Rule 26(c). Dr. Tirado has made a claim in an in rem
civil forfeiture action pending in Corpus Christi, Texas. If he wished to be
deposed elsewhere, he should have sought a protective order.
                             III. CONCLUSION
      In sum, we AFFIRM the district court in its denial of the Venue Motion,
the Motion to Quash, and its order of discovery sanctions resulting in default
judgment against Dr. Tirado.




                                       11
