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United States v. Real Property & Premises Located at 249-20 Cambria Avenue

United States District Court, E.D. New York

May 27, 2014

UNITED STATES OF AMERICA, Plaintiffs,
v.
REAL PROPERTY AND PREMISES LOCATED AT 249-20 CAMBRIA AVENUE, LITTLE NECK, NEW YORK 11362, AND ALL PROCEEDS TRACEABLE THERETO, et al., Defendants

Page 248

For the Plaintiff: Robert W. Schumacher, II, Assistant United States Attorney, United States Attorneys' Office, Eastern District of New York, Central Islip, NY.

For JPMorgan Chase Bank, National Association, Defendant: David P. Case, Esq., Lisa M. McQuade, Esq., Of Counsel, Fein Such Crane LLP, Rochester, NY.

For Chee Kuen Yim, Chee Kuan Yim, Chee Ching Yim, Yi Rong Liu, Rui Zhu Zheng, Qiao Chen, Regina Ngan, Swee Choo Ngan, and Shu Yu Lin, Claimants: Steven L. Kessler, Esq., Of Counsel, Law Offices of Steven L. Kessler, New York, NY.

For Manufacturers and Traders Trust Company, agent of M& T Bank, Claimant: Cathy A. Fleming, Esq., Of Counsel, Hodgson Russ LLP, New York, NY.

The Claimant Ken Tatarow d/b/a Tatarow Family Partners, Pro se, Clearwater, FL.

OPINION

Page 249

DECISION AND ORDER

ARTHUR D. SPATT, United States District Judge.

On December 2, 2013, the Plaintiff United States of America (the " United States" ) brought this civil in rem action to forfeit and condemn to its use and benefit (1) four New York properties, namely (a) 249-20 Cambria Avenue, Little Neck, New York 11362, (b) 42-34 189th Street, Flushing, New York 11358, (c) 61-12 213th Street, Bayside, New York 11364, and (d) 37-32 10th Street, Long Island City, New York 11101 (the Defendant " New York Properties" ); (2) two Florida Properties (a) 100 Live Oaks Blvd., Casselberry, Florida 32707 and (b) West Irlo Bronson Memorial Highway, Kissimmee, Florida 34747 (the " Defendant Florida Properties" ), and (3) $70,068.00 and $30,760.00 in United States Currency (the " Defendant Funds" ) (collectively the " Defendants In Rem " ). According to the complaint, the Defendants In Rem are subject to forfeiture pursuant to: (a) 18 U.S.C. § 981(a)(1)(C), as property constituting or derived from proceeds traceable to violations of 18 U.S.C. § 545; and/or (b) 18 U.S.C. § 2323(a), as property used in any manner or part to commit or facilitate the commission of violations of 18 U.S.C. § 2320, and/or property constituting or derived from proceeds obtained directly or indirectly as a result of violations of 18 U.S.C. § 2320.

On March 26, 2014, claimants Chee Kuen Yim, Chee Kwan Yim, Chee Ching Yim, Yi Rong Liu, Rui Zhu Zheng, Qiao Chen, Regina Ngan, Swee Choo Ngan, and Shu Yu Lin (the " Claimants" ) moved pursuant to Federal Rule of Civil Procedure (" Fed. R. Civ. P." ) 12 to dismiss this in rem civil forfeiture action for lack of subject matter jurisdiction on the ground tat there is a prior pending civil forfeiture proceeding against the Defendant New York Properties in Supreme Court, Suffolk County, captioned Spota v. Yim, No. 13-7703 (the " State Civil Action" ), and pending orders of attachment against the New York Properties in that proceeding. For the reasons set forth, the motion is denied.

I. BACKGROUND

In deciding a Fed.R.Civ.P. 12(b)(1) motion, the court " may refer to evidence outside the pleadings." Id. Notably, " [t]he standard for reviewing a [Fed. R. Civ. P.12(b)(1)] motion to dismiss is essentially identical to the [Fed. R. Civ. P.]12(b)(6) standard," except that '[a] plaintiff asserting subject matter jurisdiction has the burden of proving by a preponderance of the evidence that it exists.'" Taylor v. New York State Office for People with Developmental Disabilities, 13-cv-740 (NAM/CFH), 2014 WL 1202587, slip op. at *3 (N.D.N.Y. Mar. 24, 2014) (quoting Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000).

A. The State Actions

In or about December 2010, the Suffolk County District Attorney's Office, Asset Forfeiture Unit (the " SCDA" ) initiated an investigation involving the importation, transportation, distribution, and sale of trademark counterfeit goods in the New York Metropolitan area and elsewhere.

The SCDA identified, among others, Chee Kuen Yim (" Janice Yim" ), Chee Kwan Yim (" Jimmy Yim" ), Chee Ching Yim (" Steve Yim" ), and Regina Ngan (" Tina Ngan" ) of Queens, New York, as well as Anthony Moresco (" Moresco" ) of Rutherford, New Jersey as main targets

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(collectively the " Targets" ). These persons allegedly participated in a scheme to knowingly import and sell counterfeit designer handbags, boots, jackets, pocketbooks, sunglasses, jewelry, and other merchandise (the " Trademark Counterfeit Scheme" ). The Targets allegedly conspired to import this counterfeit merchandise from China, store it at facilities in Queens, New York, and then distribute it to " street sellers" throughout the New ...


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