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Touhey v. United States

August 20, 2009

CHERISE TOUHEY, ON BEHALF OF HERSELF AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFF,
v.
UNITED STATES OF AMERICA AND MICHAEL B. MUKASEY, IN HIS OFFICIAL CAPACITY AS UNITED STATES ATTORNEY GENERAL, DEFENDANTS.



The opinion of the court was delivered by: VIRGINIA A. Phillips United States District Judge

[Motion filed on April 17, 2009]

ORDER DENYING MOTION TO DISMISS

Defendants' Motion to Dismiss came before the Court for hearing on June 15, 2009. After reviewing and considering all papers filed in support of, and in opposition to, the Motion, as well as the arguments advanced by counsel at the hearing, the Court DENIES the Motion.

I. BACKGROUND

A. Factual Allegations

On or about June 21, 2007, Drug Enforcement Administration ("DEA") agents seized $26,943.83 from a bank account held by Plaintiff Cherise Touhey ("Plaintiff"), as well as other money from other accounts held by Plaintiff and accounts held by other persons. (Compl. ¶¶ 27-30.) On or about August 6, 2007, Plaintiff filed a claim with DEA contesting the forfeiture of the $26,943.83. (Id. at ¶ 29.) On October 13, 2007, the government instituted a judicial forfeiture proceeding against some of the assets seized on June 21, 2007 but not against Plaintiff's $26,943.83. (Id. at ¶ 30.) The government returned Plaintiff's $26,943.83 on January 9, 2008 but "did not include the nearly seven months' interest accrued on the funds, and the [D]efendants have never returned said interest to [Plaintiff]." (Id. at ¶ 31.)

B. Procedural History

On October 14, 2008, Plaintiff, on behalf of herself and all others similarly situated, filed a putative class action Complaint against Defendants United States of America and Michael B. Mukasey seeking: (1) "[A]n injunction and/or declaratory relief ordering payment or disgorgement of interest accrued on all seized funds later returned" pursuant to 5 U.S.C. § 701, et seq.; and (2) "[A]n injunction and/or declaratory relief ordering defendants to pay interest on all returned funds as to all pending and future seizures" pursuant to 5 U.S.C. § 701, et seq.

On April 17, 2009, Defendants filed a "Motion to Dismiss Action" ("Motion") and Request for Judicial Notice ("RJN"), with six exhibits attached. Plaintiff filed Opposition on May 4, 2009. Defendants filed a Reply on May 15, 2009 and a Supplemental Request for Judicial Notice ("Supp. RJN"), attaching two additional exhibits.

II. LEGAL STANDARD

Under Rule 12(b)(6), a party may bring a motion to dismiss for failure to state a claim upon which relief can be granted. As a general matter, the Federal Rules require only that a plaintiff provide "'a short and plain statement of the claim' that will give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Conley v. Gibson, 355 U.S. 41, 47 (1957) (quoting Fed. R. Civ. P. 8(a)(2)); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). In addition, the Court must accept all material allegations in the complaint - as well as any reasonable inferences to be drawn from them - as true. See Doe v. United States, 419 F.3d 1058, 1062 (9th Cir. 2005); ARC Ecology v. U.S. Dep't of Air Force, 411 F.3d 1092, 1096 (9th Cir. 2005).

"While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the 'grounds' of his 'entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atlantic, 550 U.S. at 555 (citations omitted). Rather, the allegations in the complaint "must be enough to raise a right to relief above the speculative level." Id.

In other words, the allegations must be plausible on the face of the complaint. See Ashcroft v. Iqbal, 556 U.S. __, 129 S.Ct. 1937, 1949 (2009). "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are 'merely consistent with' a defendant's liability, it stops short of the line between possibility and plausibility of 'entitlement to relief.'" Id. (citations and internal quotations omitted).

Although the scope of review is limited to the contents of the complaint, the Court may also consider exhibits submitted with the complaint, Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1555 n.19 (9th Cir. 1990), and "take judicial notice of matters of public record outside the ...


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