The opinion of the court was delivered by: Bartels, District Judge.
MEMORANDUM-DECISION AND ORDER
In this in rem forfeiture action arising under 31 U.S.C. § 5316
and 5317, the United States has moved, and
intervenor-claimants of the defendant currency have
cross-moved, for summary judgment under Fed. R.Civ.P. 56. In
addition, the claimants have moved for a change of venue under
28 U.S.C. § 1404(a) claiming forum non conveniens, and for
dismissal of the action for lack of in rem jurisdiction under
Fed.R. Civ.P. 12(b)(2).
On November 9, 1988, at John F. Kennedy International Airport
("JFK") in Queens, New York, Joseph A. Ojo was an outbound
passenger boarding Nigerian Airlines Flight 851 en route to
Nigeria. Before boarding the flight, Ojo was asked to fill out
a customs form in which he was required to report, pursuant to
31 U.S.C. § 5316, whether he was transporting monetary
instruments in excess of $10,000. Ojo declared only $4,000. Due
to Ojo's nervous manner and bulky appearance, the customs
official conducted a search of Ojo and found he was carrying
the defendant currency in the amount of $23,481. Ojo was
arrested, and the defendant currency was seized at JFK and
transferred by U.S. Customs officials to United States Customs
Service office in Manhattan.
Ojo subsequently plead guilty before Chief Judge Platt to
violating 31 U.S.C. § 5316 and 5322, was sentenced to three
years probation, and was fined $25,050.
On August 10, 1989, the United States as Plaintiff filed a
Verified Complaint In Rem
against the money that was seized from Ojo at JFK — i.e., the
defendant United States Currency in the amount of $23,481 — to
condemn and forfeit the use of the currency in accordance with
31 U.S.C. § 5316 and 5317.*fn1 On the same day, a Warrant for
Arrest for Article In Rem was issued to the Marshal of the
Eastern District of New York. On October 2, 1989, in Manhattan,
the currency was formally arrested pursuant to the warrant, and
it remains stored in a bank account maintained by the U.S.
Customs Service in the Southern District of New York. Nine
persons, including Ojo, have intervened in the present case,
claiming that various portions of the defendant currency belong
to them. The claimants all live in or near Maryland.
The Plaintiff argues that it is entitled to summary judgment
because the undisputed facts show that Ojo was attempting to
transfer the defendant United States currency from the United
States to a place outside the United States without completing
the requisite currency reporting form in violation of 31 U.S.C. § 5316,
thus entitling the Plaintiff to the forfeiture of the
defendant currency as a matter of law under 31 U.S.C. § 5317.
On the other hand, the eight claimants other than Ojo have
submitted affidavits stating that they individually gave
various sums of money to Ojo to transport to their families in
Nigeria. The claimants argue that this Court lacks jurisdiction
because jurisdiction was destroyed when the currency was
transferred from the Eastern District to the Southern District;
that, for the convenience of the claimants, a change of venue
to the District of Maryland would be proper; and that, since
Ojo was not acting within the scope of his authority when he
violated § 5316, they are entitled to summary judgment as a
matter of law.
United States district courts are court of limited
jurisdiction whose authority to hear a case must be based upon
both a constitutional grant and congressional authorization. 4
Wright & Miller, Federal Practice & Procedure, § 1063 at 226
(1987). Therefore, before turning to the forfeiture claims, the
question of jurisdiction must be addressed.
This Court has subject matter jurisdiction over this
forfeiture action pursuant to 28 U.S.C. § 1345, which grants
the district courts exclusive jurisdiction over all actions in
which the United States is a plaintiff, and by 28 U.S.C. § 1355,
which provides that the District Court shall have
original exclusive jurisdiction of all actions or proceedings
for forfeitures under any Act of Congress. 28 U.S.C. § 1345
(1988); 28 U.S.C. § 1355 (1988); United States v. One Parcel of
Real Property with Improvements Thereon, Known as 5708 Beacon
Drive, Austin, Texas, Situated In Travis County, Texas,
712 F. Supp. 525, 526 (S.D. Miss. 1988).
However, a grant of authority by Congress over a particular
subject matter or type of action is not enough for a court to
exercise jurisdiction over a particular controversy. More is
necessary. A federal court must also have jurisdiction over the
defendant's person, his property, or the res that is the
subject of the suit. Wright & Miller at 224. See, e.g., Burger
King Corp. v. Rudzewicz, 471 U.S. 462, 105 S.Ct. 2174, 85
L.Ed.2d 528 (1985); World-Wide Volkswagen Corp. v. Woodson,
444 U.S. 286, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980); Shaffer v.
Heitner, 433 U.S. 186, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977);
Shoe v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95
(1945). Where the defendant is a "res" or thing, for the Court
to exercise jurisdiction "the only essentials . . . are
presence of the res within its borders, its seizure at the
commencement of the proceedings and the opportunity of the
owner to be heard." Pennington v. Fourth Nat'l Bank,
243 U.S. 269, 272, 37 S.Ct. 282, 61 L.Ed. 713 (1917).
Thus, since in rem jurisdiction is predicated upon the
presence of the res within the judicial district, see Beale,
Harv. L.Rev. 107, 108 (1913), the question presented by the
claimants is whether this Court's in rem jurisdiction was
destroyed when the res was removed from this district after it
was seized.*fn2 Since this is a case involving customs, in
deciding whether jurisdiction exists in this forfeiture action,
reference is to the applicable customs law. United States of
America v. ...