tenants no longer occupied the 4th Floor. (Id.) The Marshals then proceeded to seize items from the 6th and 2nd floors of the building.
On November 16, 1995, counsel for the Plaintiffs and counsel for some of the Defendants appeared before the Court for a preliminary injunction hearing. Defendant M&N Co., Inc. was represented by counsel, who would possibly represent many of the John Does now named in the Amended Complaint. The Tee's Ave. Defendants (Tee's Ave., Inc., Tommy Tam, and Kwong Mei Nam) did not appear and were not represented, although they had been served prior to the hearing.
The parties present were directed to agree on a discovery schedule and the continuation of the Temporary Restraining Order. The Court entered a Preliminary Injunction against the Tee's Ave. Defendants, who did not appear at the hearing, and issued an order unsealing the court file.
On December 12, 1995, the Court so ordered a stipulation extending the Temporary Restraining Order until such time as a dispositive motion was decided, or the Court decided a motion for preliminary injunction.
On February 20, 1996, a Default Judgment was entered against the Tee's Ave. Defendants.
Defendants now move to dismiss the Complaint. Plaintiffs oppose the Motion.
"On a motion to dismiss under Rule 12(b)(6), the court must accept as true the factual allegations in the complaint, and draw all reasonable inferences in favor of the plaintiff." Bolt Elec., Inc. v. City of N.Y., 53 F.3d 465, 469 (2d Cir. 1995) (citations omitted); Scheuer v. Rhodes, 416 U.S. 232, 236, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974). "The district court should grant such a motion only if, after viewing plaintiff's allegations in this favorable light, 'it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Walker v. City of N.Y., 974 F.2d 293, 298 (2d Cir. 1992) (quoting Ricciuti v. New York City Transit Auth., 941 F.2d 119 (2d Cir. 1991) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957))), cert. denied, 507 U.S. 961 (1993).
The M&N Defendants move to dismiss the Amended Complaint and lift the Temporary Restraining Order on two grounds. First, the M&N Defendants argue that because the Marshals improperly executed the Seizure Order on behalf of the Plaintiffs, their Amended Complaint should be dismissed. Second, the M&N Defendants argue that the Court did not have, and the Plaintiffs did not provide, evidence sufficient to support the issuance of an ex parte Seizure Order, hence, their Complaint should be dismissed. The Defendants, although they request it, make no argument as to why the Temporary Restraining Order was improperly granted.
As to the Defendants' first argument, that the seizure order was improperly executed and hence dismissal of the Complaint is warranted, the Defendants' Motion is denied. Defendants argue that the seizure was wrongful because it violated Fourth Amendment standards; that the Marshals improperly searched the second floor because it was not stated in the Seizure Order; and that the Plaintiffs improperly opened mail not addressed to M&N Co., Inc. Even were the Court to find that the seizure was unlawfully executed, the proper remedy is not dismissal of the Complaint. 15 U.S.C. § 1116(11) states, "[a] person who suffers damage by reason of a wrongful seizure . . . has a cause of action against the applicant for the order . . . and shall be entitled to recover such relief as may be appropriate, including damages for lost profits, cost of materials, loss of good will, and punitive damages in instances where seizure was sought in bad faith . . . ." The Defendants have failed to show any facts or evidence to support or assert such claims. Hence, the Defendants' requested relief is denied.
Defendants next allege there was an insufficient basis on which to grant the ex parte Seizure Order. Title 15, section 1116 of the United States Code sets out the procedures for obtaining and granting a seizure order. The relevant parts of section 1116(d)(4)(B)
The court shall not grant such an application unless . . . the court finds that it clearly appears from specific facts that- -