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United States v. All Articles of Device

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NEW YORK


March 30, 2007

UNITED STATES OF AMERICA, PLAINTIFF,
v.
ALL ARTICLES OF DEVICE, ELECTRICAL MUSCLE STIMULATORS, LABELED OR UNLABELED, AND CONTAINED IN VARIOUS BOXES OR CARTONS, OR OTHERWISE IDENTIFIED AS DR-HO'S DOUBLE MASSAGE OR DR-HO'S MUSCLE MASSAGE UNITS; ALL COMPONENTS THEREOF, INCLUDING, BUT NOT LIMITED TO, FINISHED DEVICES, CIRCUIT BOARDS, CUSHIONING PADS, ELECTRODE PADS, FOOT PADS, AND INSULATED WIRES; AND ALL LABELS AND LABELING, INCLUDING, BUT NOT LIMITED TO, DVDS, BOOKLETS, AND MANUALS THAT ARE IN THE POSSESSION OF AND LOCATED AT GRE FULFILLMENT, INC., 2345 WALDEN AVENUE, BUFFALO, NEW YORK,

The opinion of the court was delivered by: Honorable Richard J. Arcara Chief Judge United States District Court

AMENDED ORDER

After due notice and publication, the only individual or entity filing a claim and answer in this matter was Infobeat, Inc.. On or about March 2, 2007, Infobeat, Inc. filed a motion to withdraw their claim and answer. The claimant also submitted to the Court an order that allowed for costs and expenses incurred by the government be paid by the claimant. Said order was approved by the Court on March 5, 2007. However, in order for the case to be properly disposed of, the Plaintiff has requested an amended order that will specifically address and clarify the needs of all parties to this action. Wherefore, upon careful review of all of the pleadings and proceedings in this action, all of which appears to the satisfaction of this Court that the plaintiff is entitled to the relief herein granted, it is hereby

ORDERED, the Claimant's Motion to Withdraw its Claim and Answer is hereby granted; and it is further

ORDERED, the seized articles that are the subject of this action and as alleged in the complaint are adulterated and misbranded, that are currently in the custody of the United States Marshals Service are hereby condemned and forfeited to the United States of America pursuant to Title 21, United States Code, Section 334(a)and it is further

ORDERED, the United States Marshals Service shall destroy and dispose of the seized articles according to law; and it is further

ORDERED, the claimant shall pay all reasonable, regular, and customary costs associated with the destruction and disposal of the seized articles; and it is further

ORDERED, the claimant shall reimburse the United States Marshals Service for all reasonable storage and other reasonable and proper costs and expenses arising from the condemnation and destruction costs that have been incurred in the pending action. Payment shall be in certified United States funds and payable to "The United States Marshals Service for the Western District of New York; and it is further

ORDERED, the claimant shall reimburse the Food and Drug Administration for all reasonable and proper costs and expenses arising from the condemnation and destruction costs that have been incurred in the pending action. Payment shall be in certified United States funds and payable to "The United States Treasury Department" and forward said payment to the Food and Drug Administration; and it is further

ORDERED, that judgment be entered against the claimant Infobeat in favor of the United States of America for the costs and expenses referred to herein; and it is further

ORDERED, that the United States District Court for the Western District of New York shall retain jurisdiction over any dispute concerning a breach of this Order.

SO ORDERED.

20070330

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