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Dealer Services Corporation v. United States Immigration and Customs Enforcement

United States District Court, Ninth Circuit

May 13, 2013



DAVID O. CARTER, District Judge.


Before the Court is Defendant U.S. Immigration and Customs Enforcement's ("Defendant's") Motion to Dismiss (Dkt. 11). The Court finds this matter appropriate for decision without oral argument. Fed.R.Civ. P. 78; Local Rule 7-15. After considering all briefing on the matter, the Court GRANTS Defendant's motion and DISMISSES the petition.

I. Background

Plaintiff Dealer Services Corporation ("Plaintiff") is a creditor of the automobile dealer NCA International Services, Inc., which does business as Remate Del Monte ("Remate"). Compl. § 2. Plaintiff's security interest in Remate includes "all of [Remate's] assets and properties, wherever located, including, without limitation, all Equipment of any kind or nature, all vehicles, vehicle parts, all inventory now owned or hereafter acquired, without limitation...." Id. § 7. That security interest is perfected, and Remate's outstanding balance due to Plaintiff was $233, 824.34, as of April 20, 2012. Id. § 8.

As dry as all of that sounds, this case also involves a car. A really fast car. It is a 2006 Lamborghini Murcielago, VIN ZHBU26S96LA02025 ("the Lamborghini"); it was seized by Defendant on February 1, 2012; and Plaintiff alleges that it was part of Remate's inventory and subject to Plaintiff's security interest at the time of its seizure. Id. § 9. Defendant agrees that it was seized, pursuant to a warrant issued by Magistrate Judge Arthur Nakazato, see Chavez Decl. Ex. A (Dkt. 11-2) (warrant issued pursuant to evidence that the Lamborghini had been purchased with the proceeds of money laundering in violation of 18 U.S.C. § 1956(a)(1)(B)(ii) and structuring in violation of 31 U.S.C. § 5324), and also agrees that its title documents listed Remate as the owner at the time of the seizure, Def's Mot. at 4. However, Defendant disagrees with Plaintiff's characterization of the Lamborghini as part of Remate's "inventory, " arguing instead that "the person who acquired the vehicle was not an employee or authorized agent of Remate, did not buy the vehicle with Remate's money, acquired and possessed the vehicle for his own use, and never delivered the vehicle to Remate." Id.

It is undisputed that notice of the seizure was given to Plaintiff, as a creditor of Remate, on or about April 20, 2012. Compl. § 10. The notice of seizure offered Plaintiff a number of options for asserting its interest in the Lamborghini: (1) Plaintiff could file an administrative petition with the government for remission of forfeiture pursuant to 19 U.S.C. § 1618 and 19 C.F.R. § 171.11; (2) Plaintiff could pursue a judicial resolution by filing a claim pursuant to 18 U.S.C. § 983(a)(2), requesting immediate referral of the matter to the U.S. Attorney, who would then decide whether to file a forfeiture action within 90 days pursuant to 18 U.S.C. § 983(a)(3); or (3) Plaintiff could submit an offer to pay the appraised domestic value in exchange for the Lamborghini, or file an "offer in compromise." Chavez Decl. Ex. B (Dkt. 11-3). The notice clearly stated that, should Plaintiff choose the administrative option, it could always request a referral to the U.S. Attorney and pursue a judicial resolution at any point before the issuance of a petition decision, or up to 30 days after an unfavorable petition decision. Id.

On May 9, 2012, Plaintiff filed its response to the seizure notification, and in that response Plaintiff chose the first (administrative) option, stating "I request that CBP consider my petition or offer administratively before forfeiture proceedings are initiated." Chavez Decl. Ex. C (Dkt. 11-4). At no point after that filing did Plaintiff request a referral to the U.S. Attorney or otherwise indicate that it wished to enter forfeiture proceedings pursuant to 18 U.S.C. 983(a)(2)(C).

On September 7, 2012, less than four months after filing its administrative petition, Plaintiff filed a Complaint in this Court seeking a writ of mandamus pursuant to 28 U.S.C. §§ 1361, 2201, and 2202, to order Defendant to give the Lamborghini to Plaintiff. See Compl. On February 4, 2013, Defendant filed the instant Motion to Dismiss, arguing both that this Court lacks subject matter jurisdiction and that Plaintiff's Complaint should be dismissed for failure to state a claim.

II. Subject Matter Jurisdiction

a. Legal Standard

Under Federal Rule of Civil Procedure 12(b)(1), a complaint must be dismissed if the court lacks subject matter jurisdiction to adjudicate the claims. Once subject matter jurisdiction is challenged, the burden of proof is placed on the party asserting that jurisdiction exists. Scott v. Breeland, 792 F.2d 925, 927 (9th Cir. 1986) (holding that the party seeking to invoke the court's jurisdiction bears the burden of establishing that jurisdiction exists). Accordingly, the court will presume lack of subject matter jurisdiction until the plaintiff proves otherwise in response to the motion to dismiss. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994).

In evaluating a Rule 12(b)(1) motion, the question of whether the court must accept the complaint's allegations as true turns on whether the challenge is facial or factual. A facial attack is one in which subject matter jurisdiction is challenged solely on the allegations in the complaint, attached documents, and judicially noticed facts. Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). In a facial attack, the moving party asserts that the lack of federal subject matter jurisdiction appears on the face of the pleadings. Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003). In the case of a facial attack, the court is required to accept as true all factual allegations set forth in the complaint. Whisnant v. United States, 400 F.3d 1177, 1179 (9th Cir. 2005).

In contrast, a factual attack (or a "speaking motion") is one in which subject matter jurisdiction is challenged as a matter of fact, and the challenger "disputes the truth of the allegations that, by themselves, would otherwise invoke federal jurisdiction." Safe Air, 373 F.3d at 1039. In assessing the validity of a factual attack, the court is not required to presume the truth of the plaintiff's factual ...

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