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1 GEORGE S. CARDONA
Acting United States Attorney
2 CHRISTINE C. EWELL
Assistant United States Attorney
3 Chief, Criminal Division
STEVEN R. WELK
4 California Bar No. 149883
Assistant United States Attorney
5 Chief, Asset Forfeiture Section
FRANK D. KORTUM
6 California Bar No. 110984
Assistant United States Attorney
7 Asset Forfeiture Section th
Federal Courthouse, 14 Floor
8 312 North Spring Street
Los Angeles, California 90012
9 Telephone: (213) 894-6166/5710
Facsimile: (213) 894-7177
10 E-mail: Steven.Welk@usdoj.gov
Frank.Kortum@usdoj.gov
11
Attorneys for Defendants
12
13
26 ///
27 ///
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1 TABLE OF CONTENTS
2 Page
3 TABLE OF AUTHORITIES.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
4 I. INTRODUCTION.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
5 II. STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
6 III. ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
7 A. Dismissal Is Proper Pursuant to Rule 12(b)(1) Because Plaintiff Lacks
Standing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
8
1. Plaintiff Lacks Article III Standing. . . . . . . . . . . . . . . . . . . . . . 5
9
a. Plaintiff has suffered no injury in fact. . . . . . . . . . . . . . . 7
10
b. Plaintiff can establish no causal connection between the
11 action alleged and his alleged injury. . . . . . . . . . . . . . . . 7
12 c. There is no likelihood that Plaintiff’s claim can be
redressed by a favorable decision. . . . . . . . . . . . . . . . . . 8
13
2. The Court Should Decline to Assume Jurisdiction on
14 Prudential Standing Grounds. . . . . . . . . . . . . . . . . . . . . . . . . . 8
15 B. Plaintiff Has Failed to Allege Facts Sufficient to State A Claim for
Injunctive of Declaratory Relief. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
16
1. Applicable Legal Standard.. . . . . . . . . . . . . . . . . . . . . . . . . . . 10
17
IV. CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
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1 TABLE OF AUTHORITIES
2 FEDERAL CASES Page
3 Aetna Life Insurance Of Hartford v. Haworth,
300 U.S. 227 (1937)........................................................................................ 6
4
Aulson v. Blanchard,
5 83 F.3d 1 (1st Cir. 1996). .............................................................................. 10
6 Balistreri v. Pacifica Police Department,
901 F.2d 696 (9th Cir. 1990). ....................................................................... 10
7
Bennett v. Spears,
8 520 U.S. 154 (1997).................................................................................... 6, 9
9 Campanelli v. Bockrath,
100 F.3d 1476 (9th Cir. 1996). ..................................................................... 10
10
Cervantes v. City of San Diego,
11 5 F.3d 1273 (9th Cir. 1993). ......................................................................... 11
12 In re Daou Systems, Inc.,
411 F.3d 1006 (9th Cir. 2005). ..................................................................... 10
13
Day v. Moscow,
14 955 F.2d 807 (2d Cir. 1992). ........................................................................ 11
15 In re Delorean Motor Co.,
991 F.2d 1236 (6th Cir. 1993). ..................................................................... 10
16
Elk Grove Unified School District v. Newdow,
17 542 U.S. 1 (2004)............................................................................................ 8
18 Ewing v. Mytinger & Cassellberry,
339 U.S. 594 (1950)........................................................................................ 5
19
Farr v. United States,
20 990 F.2d 451 (9th Cir. 1993). ....................................................................... 11
21 Flast v. Cohen,
392 U.S. 83 (1968)........................................................................................ 12
22
Gompper v. VISX, Inc.,
23 298 F.3d 893 (9th Cir. 2002). ....................................................................... 10
24 Haase v. Sessions,
835 F.2d 902 (D.C. Cir. 1987). ....................................................................... 5
25
Hall v. Beals,
26 396 U.S. 45 (1969).......................................................................................... 6
27
28 ii
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1 I.
INTRODUCTION
2
On October 16, 2009, plaintiff Ramon Rivera (“plaintiff”) filed a First
3
Amended Complaint (“FAC”) in this action, essentially updating developments in
4
this and a completely unrelated criminal case to which he is not a party (United
5
States v. Cavazos, CR 08-1202 FMC). Notwithstanding the amendment,
6
plaintiff’s FAC, like his original complaint, arises entirely from a restraining order
7
entered in October 2008 (the “October 22 Order”) in Cavazos that, among other
8
things, authorized the government to seize items bearing a registered trademark in
9
which plaintiff freely admits he has no ownership or other interest. While adding
10
certain facts concerning developments since the filing of his complaint, plaintiff
11
carefully omits other material developments from his FAC, chief among them a
12
fact that is dispositive of this case, i.e., that the government, in a public filing in
13
Cavazos of which this court may take judicial notice, voluntarily discontinued its
14
enforcement of the portion of the October 22 Order permitting seizure of property
15
from non-defendants. As a result, plaintiff is now seeking injunctive and
16
declaratory relief to prevent the government from doing something that it did
17
initially pursuant to an express order of this Court (although never to him), and has
18
since stopped doing voluntarily.
19
In effect, plaintiff seeks to appoint himself the arbiter of this Court’s actions
20
in connection with the forfeiture proceedings in Cavazos. However, the
21
fundamental principles of federal law and jurisdiction require that parties may only
22
bring a claim in federal court where there is a properly justiciable controversy, and
23
that courts only adjudicate actual controversies, not provide advisory opinions
24
about possible future actions that might result in some sort of constitutional
25
violation. As demonstrated below, there is no justiciable controversy as between
26
plaintiff and the defendants, and he is not entitled to the advisory opinion he seeks
27
28 1
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1 by his first amended complaint. His efforts to continue in his collateral attacks on
2 an ongoing criminal prosecution in which he has no stake should not be allowed.
3 For a host of reasons, including the doctrine of sovereign immunity, plaintiff
4 cannot be granted relief he seeks, and his action must be dismissed. The
5 government seeks dismissal pursuant to Federal Rule of Civil Procedure 12(b)(1)
6 (lack of subject matter jurisdiction) and (6) (failure to state a claim upon which
7 relief can be granted).
8 II.
9 STATEMENT OF FACTS
10 The facts of this case have been exhaustively enumerated in the filings in
11 this matter. In the setting of this motion, the court may consider the facts alleged
12 in the FAC and those facts of which it may take judicial notice in determining the
13 Rule 12(b)(6) motion. It is not so limited in determining the motion under Rule
14 12(b)(1), since that presents a jurisdictional question.
15 Plaintiff alleges that he isa member of the criminal motorcycle gang known
16 as the Mongols, the principal members of which have been indicted in Cavazos on
17 RICO and other charges. Plaintiff seeks relief from a number of federal
18 government officials. FAC at ¶¶ 5-9. He correctly notes that as part of the
19 Cavazos prosecution, the government is seeking the criminal forfeiture of two
20 registered marks, one of which was restrained by this Court in the October 22
21 Order. The marks are symbols of the gang, and gang members, including plaintiff,
22 wear the symbols to identify themselves to others as members of the gang. FAC at
23 ¶¶ 10-15, 25-26.
24 Plaintiff admits that neither he nor any other members of the gang “ever had
25 any property interest in” either mark. FAC at ¶17. Plaintiff “does not claim an
26 ownership or other property interest” in either mark. FAC at ¶ 24. He alleges that
27
28 2
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1 government agents seized items bearing the mark from other gang members, but
2 never from plaintiff. Indeed, plaintiff alleges no personal knowledge of any items
3 having been seized. He merely “has been informed” of the seizures. FAC at ¶ 18-
4 20. He alleges that he was told by a local police officer that if federal agents saw
5 plaintiff wearing the mark, they would confiscate it pursuant to the October 22
6 Order, but does not allege that anything was ever, in fact, confiscated from him.
7 FAC at ¶ 21.
8 He alleges that on July 31, 2009, this Court granted a preliminary injunction
9 barring the government from seizing any items bearing the mark, but fails to note
10 that the Court’s July 31 Order applied only to plaintiff.1 Plaintiff then goes on to
11 allege certain actions taken by the Court and the government in Cavazos, but self-
12 servingly neglects to include the material fact that the government voluntarily
13 suspended its enforcement of the seizure provisions of the October 22 Order as
14 against non-defendants in a public filing in Cavazos months ago. See exhibit to
15 defendants’ request for judicial notice filed contemporaneously herewith. FAC at
16 ¶ 27-28. Plaintiff then alleges that
17 [d]ue to the government’s threat to seize items displaying the [marks],
and the actual seizure of such items from persons not indicted in
18 Cavazos, [plaintiff] has been chilled and deterred from publicly
wearing or displaying the [marks] and has refrained from doing so.
19
FAC at ¶ 29. However, plaintiff fails to allege when, how or by whom he was
20
ever threatened in such a manner, or any factual basis for his purported fear that
21
property will be seized from him for the reasons alleged in the FAC.
22
23
24 1
The defendants ask that the court take judicial notice of the July 31 Order
25 entered in this action. In determining a motion pursuant to Rule 12, a court may
consider documents referred to in the complaint and the full text of documents
26 which the complaint quotes only in part. In re Stac Electronics Securities
27 Litigation, 89 F.3d 1399, 1405 n.4 (9th Cir. 1996).
28 3
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1 III.
ARGUMENT
2
23
2
This assumes no change in other circumstances, of course. For example,
24 the portion of the October 22 Order barring the transfer, assignment or other
25 disposition of the marks remains in effect. Thus, if plaintiff attempted to accept a
transfer or assignment of the marks, he would then be in violation of the Order,
26 but he does not challenge that portion of the Order or allege that he is
27 constitutionally entitled to violate that portion of the Order.
28 4
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1 Mgmt., 893 F.2d 1012, 1015 (9th Cir. 1989), quoting Super Tire Eng’g Co. v.
2 McCorkle, 416 U.S. 115, 122 (1974).3 Even where constitutional issues may be
3 “interesting and difficult,” a court should avoid advisory opinions. Seven Words
4 LLC, 260 F.3d at 1099, citing Hall v. Beals, 396 U.S. 45, 48 (1969).
5 Aside from the general prohibition on advisory opinions, the “irreducible
6 constitutional minimum” of Article III standing is a threshold requirement that
7 must be satisfied by a plaintiff before a case can proceed, and requires:
8 (1) that the plaintiff have suffered an “injury in fact” - an invasion of
a judicially cognizable interest which is (a) concrete and
9 particularized and (b) actual or imminent, not conjectural or
hypothetical; (2) that there be a causal connection between the injury
10 and the conduct complained of - the injury must be fairly traceable to
the challenged action of the defendant, and not the result of the
11 independent action of some third party not before the court; and (3)
that it be likely, as opposed to merely speculative, that the injury will
12 be redressed by a favorable decision.
13 Bennett, 520 U.S. at 167, citing Defenders of Wildlife, 504 U.S. at 560-561.
14 Plaintiff fails to meet these requirements for several reasons, not the least of which
15 is that he has never suffered an actual legally compensable injury as a result of the
16 October 22 Order, and can demonstrate no possibility of future legal injury as the
17 government has voluntarily suspended enforcement of the portion of the Order
18 against non-defendants. Plaintiff’s claim is therefore for nothing more than an
19 “‘opinion advising what the law would be upon a hypothetical set of facts,’” which
20 federal courts simply will not entertain. MedImmune, Inc. v. Genetech, Inc., 549
21 U.S. 118, 142 (2007), quoting Aetna Life Ins. Of Hartford v. Haworth, 300 U.S.
22 227, 241 (1937).
23
24
25
3
The Super Tire Court held that dismissal for mootness might be avoided
where the party seeking relief was challenging a fixed or definite government
26 policy, but that is not the case here. The acts complained of by plaintiff were
27 undertaken in accord with this Court’s October 22 Order.
28 6
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25 This element is closely related to the first, but demonstrates the lack of
26 jurisdiction here even more clearly. Plaintiff’s original complaint was filed at a
27
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1 time when the October 22 Order was in full force and effect and the government
2 was enforcing the order. Nevertheless, plaintiff never had anything seized from
3 him. Now, however, the setting is materially different. While plaintiff still has
4 had nothing seized from him, there is now no chance that anything ever will be
5 seized from him pursuant to the October 22 Order. The potential injury he claims
6 is now a legal and factual impossibility. Since he cannot suffer an injury in fact,
7 he obviously can show no causal connection to the action alleged, i.e.,
8 enforcement of the seizure authority of the October 22 Order against non-
9 defendants.
10 c. There is no likelihood that Plaintiff’s claim can be
redressed by a favorable decision
11
1 simply no support for the proposition that First and Fifth Amendments were
2 intended to provide prior judicial review of relief that the government might seek
3 in the future.
4 B. Plaintiff Has Failed to Allege Facts Sufficient to State A Claim for
Injunctive of Declaratory Relief
5
1. Applicable Legal Standard
6
A motion to dismiss a complaint under Rule 12(b)(6) for failure to state a
7
claim upon which relief can be granted should be granted where the complaint
8
fails to assert a cognizable legal theory or contains insufficient factual allegations
9
to support a cognizable legal theory. Balistreri v. Pacifica Police Dept., 901 F.2d
10
696, 699 (9th Cir. 1990). A court determining a Rule 12(b)(6) motion must “accept
11
the plaintiffs’ allegations as true and construe them in the light most favorable to
12
plaintiffs.” In re Daou Systems, Inc., 411 F.3d 1006, 1013 (9th Cir. 2005). In
13
addition, “all reasonable inferences” that can be drawn from the complaint are
14
taken to be true, although conclusory allegations alone are insufficient. Pareto v.
15
FDIC, 139 F.3d 696, 699 (9th Cir. 1998) (citing Campanelli v. Bockrath, 100 F.3d
16
1476, 1479 (9th Cir. 1996)); see also Gompper v. VISX, Inc., 298 F.3d 893, 896
17
(9th Cir. 2002) (reviewing the “totality of facts and inferences” from the
18
complaint). Of substantial importance here, the court need not accept a plaintiff’s
19
legal characterizations. In re Delorean Motor Co., 991 F.2d 1236, 1240 (6th Cir.
20
1993); Transphase Systems, Inc. v. Southern Calif. Edison Co., 839 F.Supp. 711,
21
718 (CD Cal 1993).4 Generally, “review is limited to the complaint; ‘evidence
22
outside the pleadings . . . cannot normally be considered in deciding a 12(b)(6)
23
24
25
4
In other words, a court need not “swallow the plaintiff’s invective hook,
line and sinker; bald assertions, unsupported conclusions, periphrastic
26 circumlocutions, and the like need not be credited.” Aulson v. Blanchard, 83 F.3d
27 1, 3 (1st Cir. 1996).
28 10
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1 motion.’” Cervantes v. City of San Diego, 5 F.3d 1273, 1274 (9th Cir. 1993)
2 (quoting Farr v. United States, 990 F.2d 451, 454 (9th Cir. 1993)).
3 A Rule 12(b)(6) motion attacks defects that appear on the face of the
4 complaint, but may also be based on documents attached to the complaint or
5 incorporated by reference in the complaint, or matters of judicial notice. Day v.
6 Moscow, 955 F.2d 807, 811 (2d Cir. 1992) (granting Rule 12(b)(6) motion by
7 taking judicial notice of or court’s own records to uphold res judicata defense).
8 The court may also consider documents referred to in the complaint and the full
9 text of documents which the complaint quotes only in part. In re Stac Electronics
10 Securities Litigation, 89 F.3d 1399, 1405 n.4 (9th Cir. 1996).
11 Plaintiff here seeks a declaration that “defendants may not seize or ask or
12 direct any other person or entity to seize any item or property from Plaintiff that
13 bears” the marks sought for forfeiture in Cavazos, and a permanent injunction
14 “enjoining defendants, their successors, agents, servants, and employees, and
15 anyone acting in concert with defendants from seizing any such items or property
16 from Plaintiff or asking or directing any other person or entity to make such
17 seizure.” FAC at 11. In support of these requests, plaintiff alleges nothing more
18 than that the government obtained the October 22 Order and that the court
19 subsequently barred the government from seizing property from plaintiff pursuant
20 to that order. Those allegations alone are arguably enough to compel dismissal of
21 this action, because those facts make it clear that plaintiff faces no risk of injury
22 based on the operative facts alleged in the FAC, i.e., the execution of the October
23 22 Order.
24 However, there are additional material facts that plaintiff opted to omit from
25 his FAC, but from which he cannot hide. For example, while describing the July
26 31 Order of this Court and noting that the Court denied the defendants’ motion to
27
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