Mary C. Kane, A.U.S.A. United States Attorney's Office, Buffalo, NY, For the United States.
John Peter Bostany, Esq., Bostany Law Firm, New York, NY, For the Claimant.
DECISION & ORDER.
CHARLES J. SIRAGUSA, District Judge.
This forfeiture case is before the Court on the motion of Claimant D&K America, Inc, ("D&K") for an order pursuant to Federal Rule of Civil Procedure 12(b)(3) and 12(b)(6) dismissing the United States' complaint for forfeiture. Notice of Motion, Sept. 6, 2011, ECF No. 10. Further, the government has filed a motion to strike D&K's claim for failure to comply with Supplemental Rule G(5) by not stating the claimant's interest in the property and a motion to stay this action for thirty days after the government shutdown. For the reasons stated below, the government's motion to strike, ECF No. 25, is denied, and Claimant D&K's motion to dismiss, ECF No. 10, is denied. The government's motion to stay this action until thirty days after the government shutdown of October 1, 2013, until October 16, 2013, ECF No. 29, is denied as moot.
The following information is taken from the complaint, Jul. 6, 2011, ECF No. 1. This is an in rem action for the forfeiture of the defendant property pursuant to 18 U.S.C. § 2323(a)(1)(A), (B) and (c). The United States alleges subject matter jurisdiction pursuant to 28 U.S.C. §§ 1345 and 1355(a), and in rem jurisdiction pursuant to 28 U.S.C. §§ 1355(b) and (d), and claims venue is proper in this District pursuant to 28 U.S.C. § 1395(a). The defendant property was seized on the basis that it constituted or derived from proceeds obtained as the result of trafficking in counterfeit goods, in violation of 18 U.S.C. § 2320. The United States alleges that the counterfeit property bore counterfeit trademarks, thereby subjecting it to seizure. The defendant property was seized on September 29, 2010, by United States Immigration and Customs Enforcement ("ICE") agents and is presently in the custody of the Port Director, United States Customs and Border Protection ("CBP"), Newark and New York.
The United States alleges that as part of its investigation into counterfeiting, it learned that Fan Zhang ("Zhang"), and her husband, Deno Delrengo ("Delrengo") purchased purses from a business known as J&J Spice, and also known as D&K America, Inc., with an address at 150 West 30th Street, New York, New York. Zhang, Delrengo, Zhang's mother, Ziu Ying Chen, Zhang's brother, Chi Zhang, and her father, Qing Fu Shang, all reside at 40 Stafford Way, Rochester, New York.
On November 24, 2010, CBP notified D&K of the seized merchandise. U.S. Customs and Border Protection letter to D&K, Nov. 24, 2010, attached to Windman Aff., ECF No. 7-1. The letter advised D&K it could petition for relief pursuant to 19 C.F.R. § 171.12(b) within thirty days of the date on the letter. On January 21, 2011, D&K filed a petition and asked the CBP to administratively consider the petition for relief. C.J. Erickson letter to Rachel Yong Yow, Jan. 21, 2011, attached to Windman Aff., ECF No. 7-2. CBP advised D&K's counsel, C.J. Erickson, Esq., that it was denying D&K's claim. Edward P. Nagle letter to C.J. Erickson, Mar. 10, 2011, ECF No. 14-3.
The United States filed its complaint seeking forfeiture on July 6, 2011, ECF No. 1. D&K argues that the complaint was filed beyond the 90-day statutory deadline and that since the defendant property was seized in the Southern District of New York, that, and not the Western District, is the proper venue.
STANDARDS OF LAW
Filing a Claim
Federal Rules of Civil Procedure, Supplemental Admiralty and Maritime Claims Rule G(5)(a), provides in pertinent part as follows: "(I) A person who asserts an interest in the defendant property may contest the forfeiture by filing a claim in the court where the action is pending. The claim must: (A) identify the specific property claimed; (B) identify the claimant and state the claimant's interest in the property...."
Federal Rule of Civil Procedure 12(b)
The U.S. Supreme Court, in Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007), clarified the standard to be applied to a 12(b)(6) motion:
Federal Rule of Civil Procedure 8(a)(2) requires only a short and plain statement of the claim showing that the pleader is entitled to relief, in order to give the defendant fair notice of what the claim is and the grounds upon which it rests. While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a Plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).
Id. at 1964-65 (citations and internal quotations omitted). See also, ATSI Communications, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007) ("To survive dismissal, the plaintiff must provide the grounds upon which his claim rests through factual allegations sufficient to raise a right to relief above the speculative level.'") (quoting Bell Atl. Corp. v. Twombly ) (footnote omitted); Iqbal v. Hasty, 490 F.3d 143 (2d Cir. 2007) (Indicating that Bell Atl. Corp. v. Twombly adopted "a flexible plausibility standard, ' which obliges a pleader to amplify a claim with some factual allegations in those contexts where such amplification is needed to render the claim plausible[, ]" as opposed to merely conceivable.)
When applying this standard, a district court must accept the allegations contained in the complaint as true and draw all reasonable inferences in favor of the nonmoving party. Burnette v. Carothers, 192 F.3d 52, 56 (1999), cert. denied, 531 U.S. 1052 (2000). On the other hand, "[c]onclusory allegations of the legal status of the defendants' acts need not be accepted as true for the purposes of ruling on a motion to dismiss." Hirsch v. Arthur Andersen & Co., 72 F.3d 1085, 1092 (2d Cir. 1995)( citing In re American Express Co. Shareholder Litig., 39 ...