Govt Motion to Dismiss Rivera Complaint
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GEORGE S. CARDONAActing United States AttorneyCHRISTINE C. EWELLAssistant United States AttorneyChief, Criminal DivisionSTEVEN R. WELK
California Bar No. 149883Assistant United States AttorneyChief, Asset Forfeiture SectionFRANK D. KORTUMCalifornia Bar No. 110984Assistant United States AttorneyAsset Forfeiture Section
Federal Courthouse, 14 Floorth
312 North Spring StreetLos Angeles, California 90012Telephone: (213) 894-6166/5710Facsimile: (213) 894-7177E-mail: Steven.Welk@usdoj.gov
Frank.Kortum@usdoj.gov
Attorneys for Defendants
UNITED STATES DISTRICT COURT
FORTHE CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION
RAMON RIVERA, ))
Plaintiff, ))
v. ))
RONNIE A. CARTER, ETC., )ET AL. )
)Defendants. )
))
))))
NO. CV 09-2435 FMC (VBKx)
GOVERNMENTS NOTICE OFMOTION TO DISMISS FORFAILURE TO STATE A CLAIMUPON WHICH RELIEF CAN BEGRANTED
DATE: December 14, 2009TIME: 10:00 a.m.CTRM: 750(Roybal)
/ / /
/ / /
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TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
I. INTRODUCTION.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1II. STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
III. ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
A. Dismissal Is Proper Pursuant to Rule 12(b)(1) Because Plaintiff LacksStanding. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
1. Plaintiff Lacks Article III Standing. . . . . . . . . . . . . . . . . . . . . . 5
a. Plaintiff has suffered no injury in fact. . . . . . . . . . . . . . . 7
b. Plaintiff can establish no causal connection between theaction alleged and his alleged injury. . . . . . . . . . . . . . . . 7
c. There is no likelihood that Plaintiffs claim can beredressed by a favorable decision. . . . . . . . . . . . . . . . . . 8
2. The Court Should Decline to Assume Jurisdiction onPrudential Standing Grounds. . . . . . . . . . . . . . . . . . . . . . . . . . 8
B. Plaintiff Has Failed to Allege Facts Sufficient to State A Claim forInjunctive of Declaratory Relief. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
1. Applicable Legal Standard.. . . . . . . . . . . . . . . . . . . . . . . . . . . 10
IV. CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
i
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TABLE OF AUTHORITIES
FEDERAL CASES Page
Aetna Life Insurance Of Hartford v. Haworth,300 U.S. 227 (1937)........................................................................................ 6
Aulson v. Blanchard,83 F.3d 1 (1st Cir. 1996). .............................................................................. 10
Balistreri v. Pacifica Police Department,901 F.2d 696 (9th Cir. 1990). ....................................................................... 10
Bennett v. Spears ,520 U.S. 154 (1997).................................................................................... 6, 9
Campanelli v. Bockrath,100 F.3d 1476 (9th Cir. 1996). ..................................................................... 10
Cervantes v. City of San Diego,5 F.3d 1273 (9th Cir. 1993). ......................................................................... 11
In re Daou Systems, Inc.,411 F.3d 1006 (9th Cir. 2005). ..................................................................... 10
Day v. Moscow,955 F.2d 807 (2d Cir. 1992). ........................................................................ 11
In re Delorean Motor Co.,991 F.2d 1236 (6th Cir. 1993). ..................................................................... 10
Elk Grove Unified School District v. Newdow ,
542 U.S. 1 (2004). ........................................................................................... 8Ewing v. Mytinger & Cassellberry ,
339 U.S. 594 (1950)........................................................................................ 5
Farr v. United States,990 F.2d 451 (9th Cir. 1993). ....................................................................... 11
Flast v. Cohen,392 U.S. 83 (1968)........................................................................................ 12
Gompper v. VISX, Inc.,298 F.3d 893 (9th Cir. 2002). ....................................................................... 10
Haase v. Sessions,835 F.2d 902 (D.C. Cir. 1987). ....................................................................... 5
Hall v. Beals ,396 U.S. 45 (1969).......................................................................................... 6
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TABLE OF AUTHORITIES (contd)
FEDERAL CASES Page
Headwaters, Inc. v. Bureau of Land Management,893 F.2d 1012 (9th Cir. 1989). ....................................................................... 5
Kokkonen v. Guardian Life Insurance Co. Of America,511 U.S. 375 (1994)........................................................................................ 4
Lone Star Cement Corp. v. FTC,339 F.2d 505 (9th Cir. 1964). ......................................................................... 7
Lujan v. Defenders of Wildlife,504 U.S. 555 (1992).................................................................................... 5, 6
MedicalImmune, Inc. v. Genetech, Inc.,549 U.S. 118 (2007)........................................................................................ 6
Pareto v. FDIC,139 F.3d 696 (9th Cir. 1998). ....................................................................... 10
Ramming v. United States,281 F.3d 158 (5th Cir. 2001). ......................................................................... 4
Roberts v. Corrothers ,812 F.2d 1173 (9th Cir. 1987). ....................................................................... 5
Schreiber District v. Serv-Well Furniture Co.,806 F.2d 1393 (9th Cir. 1986). ..................................................................... 12
Seven Words LLC v. Network Solutions,
260 F.3d 1089 (9th Cir. 2001). ................................................................... 5, 6Sprint Communications, Co., L.P. v. APCC Serv., Inc.,
___ U.S. ___, 128 S. Ct. 2531 (2008)............................................................. 8
In re Stac Electronics Securities Litigation ,89 F.3d 1399 (9th Cir. 1996). ................................................................... 3, 11
Stock West, Inc. v. Confederated Tribes,873 F.2d 1221 (9th Cir. 1989). ....................................................................... 4
Super Tire Engineering Co. v. McCorkle,416 U.S. 115 (1974)........................................................................................ 6
Transphase Systems, Inc. v. Southern Calif. Edison Co.,839 F. Supp. 711 (CD Cal 1993). ................................................................. 10
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TABLE OF AUTHORITIES (contd)
FEDERAL RULES Page
F.R.Civ.P. 12............................................................................................................. 3
F.R.Civ.P. 12(b). ....................................................................................................... 4
F.R.Civ.P. 12(b)(1). .......................................................................................... 2, 4, 5
F.R.Civ.P. 12(b)(6). ................................................................................ 2, 10, 11, 12
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I.INTRODUCTION
On October 16, 2009, plaintiff Ramon Rivera (plaintiff) filed a First
Amended Complaint (FAC) in this action, essentially updating developments in
this and a completely unrelated criminal case to which he is not a party (United
States v. Cavazos, CR 08-1202 FMC). Notwithstanding the amendment,
plaintiffs FAC, like his original complaint, arises entirely from a restraining order
entered in October 2008 (the October 22 Order) in Cavazos that, among other
things, authorized the government to seize items bearing a registered trademark in
which plaintiff freely admits he has no ownership or other interest. While adding
certain facts concerning developments since the filing of his complaint, plaintiff
carefully omits other material developments from his FAC, chief among them a
fact that is dispositive of this case, i.e., that the government, in a public filing in
Cavazos of which this court may take judicial notice, voluntarily discontinued its
enforcement of the portion of the October 22 Order permitting seizure of property
from non-defendants. As a result, plaintiff is now seeking injunctive and
declaratory relief to prevent the government from doing something that it did
initially pursuant to an express order of this Court (although never to him), and has
since stopped doing voluntarily.
In effect, plaintiff seeks to appoint himself the arbiter of this Courts actions
in connection with the forfeiture proceedings in Cavazos. However, the
fundamental principles of federal law and jurisdiction require that parties may only
bring a claim in federal court where there is a properly justiciable controversy, and
that courts only adjudicate actual controversies, not provide advisory opinions
about possible future actions that might result in some sort of constitutional
violation. As demonstrated below, there is no justiciable controversy as between
plaintiff and the defendants, and he is not entitled to the advisory opinion he seeks
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by his first amended complaint. His efforts to continue in his collateral attacks on
an ongoing criminal prosecution in which he has no stake should not be allowed.
For a host of reasons, including the doctrine of sovereign immunity, plaintiff
cannot be granted relief he seeks, and his action must be dismissed. Thegovernment seeks dismissal pursuant to Federal Rule of Civil Procedure 12(b)(1)
(lack of subject matter jurisdiction) and (6) (failure to state a claim upon which
relief can be granted).
II.
STATEMENT OF FACTS
The facts of this case have been exhaustively enumerated in the filings in
this matter. In the setting of this motion, the court may consider the facts alleged
in the FAC and those facts of which it may take judicial notice in determining the
Rule 12(b)(6) motion. It is not so limited in determining the motion under Rule
12(b)(1), since that presents a jurisdictional question.
Plaintiff alleges that he isa member of the criminal motorcycle gang known
as the Mongols, the principal members of which have been indicted in Cavazos on
RICO and other charges. Plaintiff seeks relief from a number of federal
government officials. FAC at 5-9. He correctly notes that as part of the
Cavazos prosecution, the government is seeking the criminal forfeiture of two
registered marks, one of which was restrained by this Court in the October 22
Order. The marks are symbols of the gang, and gang members, including plaintiff,
wear the symbols to identify themselves to others as members of the gang. FAC at
10-15, 25-26.Plaintiff admits that neither he nor any other members of the gang ever had
any property interest in either mark. FAC at 17. Plaintiff does not claim an
ownership or other property interest in either mark. FAC at 24. He alleges that
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The defendants ask that the court take judicial notice of the July 31 Order1
entered in this action. In determining a motion pursuant to Rule 12, a court may
consider documents referred to in the complaint and the full text of documents
which the complaint quotes only in part. In re Stac Electronics Securities
Litigation, 89 F.3d 1399, 1405 n.4 (9 Cir. 1996).th
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government agents seized items bearing the mark from other gang members, but
never from plaintiff. Indeed, plaintiff alleges no personal knowledge of any items
having been seized. He merely has been informed of the seizures. FAC at 18-
20. He alleges that he was told by a local police officer that if federal agents sawplaintiff wearing the mark, they would confiscate it pursuant to the October 22
Order, but does not allege that anything was ever, in fact, confiscated from him.
FAC at 21.
He alleges that on July 31, 2009, this Court granted a preliminary injunction
barring the government from seizing any items bearing the mark, but fails to note
that the Courts July 31 Order applied only to plaintiff. Plaintiff then goes on to1
allege certain actions taken by the Court and the government in Cavazos, but self-
servingly neglects to include the material fact that the government voluntarily
suspended its enforcement of the seizure provisions of the October 22 Order as
against non-defendants in a public filing in Cavazos months ago. See exhibit to
defendants request for judicial notice filed contemporaneously herewith. FAC at
27-28. Plaintiff then alleges that
[d]ue to the governments threat to seize items displaying the [marks],and the actual seizure of such items from persons not indicted inCavazos, [plaintiff] has been chilled and deterred from publiclywearing or displaying the [marks] and has refrained from doing so.
FAC at 29. However, plaintiff fails to allege when, how or by whom he was
ever threatened in such a manner, or any factual basis for his purported fear that
property will be seized from him for the reasons alleged in the FAC.
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This assumes no change in other circumstances, of course. For example,2
the portion of the October 22 Order barring the transfer, assignment or other
disposition of the marks remains in effect. Thus, if plaintiff attempted to accept a
transfer or assignment of the marks, he would then be in violation of the Order,
but he does not challenge that portion of the Order or allege that he is
constitutionally entitled to violate that portion of the Order.
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III.ARGUMENT
A. Dismissal Is Proper Pursuant to Rule 12(b)(1) Because PlaintiffLacks Standing
A federal court may adjudicate only those cases which the Constitution and
Congress authorize it to adjudicate. Kokkonen v. Guardian Life Ins. Co. Of
America, 511 U.S. 375, 377 (1994). Plaintiff bears the burden of establishing
jurisdiction. Id.; Stock West, Inc. v. Confederated Tribes, 873 F.2d 1221, 1225 (9th
Cir. 1989). In determining a motion to dismiss, a court should first determine
issues bearing upon jurisdiction, since if the court lacks jurisdiction to adjudicate
the purported claim, that finding is dispositive of the motion and will require
dismissal. Ramming v. United States, 281 F.3d 158, 161 (5 Cir. 2001). Here,th
plaintiff seeks injunctive and declaratory relief against federal officials acting in
their official capacities to prevent said officials from taking action that the
government has publicly acknowledged in court filings that it does not intend to
take without a further court order. Specifically, plaintiff seeks to bar the
defendants from seizing property from him pursuant to the October 22 Order. But
the undisputed facts demonstrate not only that plaintiff was never actually affected
by the October 22 Order, but that there is no chance whatsoever that he might have
any action taken against him pursuant to that Order.2
A defendant may move to dismiss an action under Rule 12(b)(1) for lack of
subject matter jurisdiction. Unlike other motions under Rule 12(b), in determining
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such a motion, the court is not necessarily limited to consideration of the
allegations of the complaint. It may consider extrinsic evidence and, if the
evidence is disputed, it may weigh the evidence and determine the facts necessary
to resolve the jurisdictional question. Roberts v. Corrothers, 812 F.2d 1173, 1177(9 Cir. 1987).th
1. Plaintiff Lacks Article III Standing
In order to prosecute a civil case in federal court, a plaintiff must
demonstrate that the suit constitutes a justiciable case or controversy within
the Article III jurisdiction of the federal courts. Lujan v. Defenders of
Wildlife, 504 U.S. 555, 561 (1992). A Rule 12(b)(1) motion is an appropriate
vehicle to challenge a plaintiffs standing. Haase v. Sessions, 835 F.2d 902 (D.C.
Cir. 1987).
As a preliminary matter, injunctions against the government require far
more than a mere claim that the government might take some action that could
result in some sort of injury to the plaintiff. It has never been held that the hand
of government must be stayed until the courts have an opportunity to determine
whether the government is justified in instituting suit in the courts. Ewing v.
Mytinger & Cassellberry, 339 U.S. 594, 599 (1950). Moreover, where a plaintiff
seeks injunctive and declaratory relief concerning conduct which the defendant
has abandoned, the action must be dismissed for mootness, as there is no longer
any case or controversy as required by Article III of the Constitution. Seven
Words LLC v. Network Solutions, 260 F.3d 1089, (9 Cir. 2001). A case orth
controversy exists justifying declaratory relief only where the challenged . . .activity . . . is not contingent, has not evaporated or disappeared, and, by its
continuing and brooding presence, casts what may well be a substantial adverse
effect on the interests of the . . . parties.Headwaters, Inc. v. Bureau of Land
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The Super Tire Court held that dismissal for mootness might be avoided3
where the party seeking relief was challenging a fixed or definite government
policy, but that is not the case here. The acts complained of by plaintiff were
undertaken in accord with this Courts October 22 Order.
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Mgmt., 893 F.2d 1012, 1015 (9 Cir. 1989), quoting Super Tire Engg Co. v.th
McCorkle, 416 U.S. 115, 122 (1974). Even where constitutional issues may be3
interesting and difficult, a court should avoid advisory opinions. Seven Words
LLC, 260 F.3d at 1099, citingHall v. Beals, 396 U.S. 45, 48 (1969).Aside from the general prohibition on advisory opinions, the irreducible
constitutional minimum of Article III standing is a threshold requirement that
must be satisfied by a plaintiff before a case can proceed, and requires:
(1) that the plaintiff have suffered an injury in fact - an invasion ofa judicially cognizable interest which is (a) concrete and
particularized and (b) actual or imminent, not conjectural orhypothetical; (2) that there be a causal connection between the injuryand the conduct complained of - the injury must be fairly traceable to
the challenged action of the defendant, and not the result of theindependent action of some third party not before the court; and (3)that it be likely, as opposed to merely speculative, that the injury will
be redressed by a favorable decision.
Bennett, 520 U.S. at 167, citingDefenders of Wildlife, 504 U.S. at 560-561.
Plaintiff fails to meet these requirements for several reasons, not the least of which
is that he has never suffered an actual legally compensable injury as a result of the
October 22 Order, and can demonstrate no possibility of future legal injury as the
government has voluntarily suspended enforcement of the portion of the Order
against non-defendants. Plaintiffs claim is therefore for nothing more than an
opinion advising what the law would be upon a hypothetical set of facts, which
federal courts simply will not entertain. MedImmune, Inc. v. Genetech, Inc., 549
U.S. 118, 142 (2007), quoting Aetna Life Ins. Of Hartford v. Haworth, 300 U.S.
227, 241 (1937).
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a. Plaintiff has suffered no injury in fact
Plaintiffs first hurdle with respect to Article III standing is the fact that he
has suffered no injury in fact. Nothing was ever seized from him; no attempt was
ever made to seize anything from him; no federal agent or officer ever threatenedor attempted to seize any item from him, either pursuant to the October 22 Order
or otherwise. He lacks personal knowledge of anyone having had property seized
from them pursuant to the October 22 Order. At best, plaintiff has a baseless and
amorphous fear that someone from the federal government is going to seize
something from him, but that fear has no reasonable basis since the government
has voluntarily suspended enforcement of the seizure authority provided under the
October 22 Order with respect to non-defendants in Cavazos.
To the extent that plaintiff seeks to prevent the government from seizing
property on some other basis, his non-particularized fear in that regard is simply
not a basis for hauling the defendants into court and presents a classic example of
an advisory opinion. Such actions are strongly disfavored. See Lone Star Cement
Corp. v. FTC, 339 F.2d 505, 510 (9th Cir. 1964) (Except in very unusual and
limited circumstances, . . . Congress did not contemplate a grant of jurisdiction to
the courts to prevent abuse or misuse of administrative power by prior restraint of
the exercise of such powers.) (internal citations omitted).
Plaintiffs characterization of his claims as constitutional in nature does not
change the result. The requirement of injury in fact applies regardless of the basis
of a plaintiffs claim.
b. Plaintiff can establish no causal connection between theaction alleged and his alleged injury
This element is closely related to the first, but demonstrates the lack of
jurisdiction here even more clearly. Plaintiffs original complaint was filed at a
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time when the October 22 Order was in full force and effect and the government
was enforcing the order. Nevertheless, plaintiff never had anything seized from
him. Now, however, the setting is materially different. While plaintiff still has
had nothing seized from him, there is now no chance that anything ever will beseized from him pursuant to the October 22 Order. The potential injury he claims
is now a legal and factual impossibility. Since he cannot suffer an injury in fact,
he obviously can show no causal connection to the action alleged, i.e.,
enforcement of the seizure authority of the October 22 Order against non-
defendants.
c. There is no likelihood that Plaintiffs claim can be
redressed by a favorable decision
Finally, Plaintiff cannot demonstrate a likelihood of redress. The
defendants have already suspended enforcement of the seizure authority of the
October 22 Order against non-defendants in Cavazos. There is no need for or
purpose to an order compelling the defendants to stop doing something that the
government has already stopped doing.
2. The Court Should Decline to Assume Jurisdiction onPrudential Standing Grounds
In addition to Article III standing, courts may consider a doctrine known as
prudential standing, which embodies judicially self-imposed limits on the exercise
of federal jurisdiction. Elk Grove Unified School District v. Newdow, 542 U.S. 1,
11 (2004); Sprint Communications, Co., L.P. v. APCC Serv., Inc., ___ U.S. ___,
128 S.Ct. 2531, 2544 (2008).
The federal judiciary [adheres] to a set of prudential principles thatbear on the question of standing. Like their constitutionalcounterparts, these judicially self-imposed limits on the exercise offederal jurisdiction are founded in concern about the proper - and
properly limited - role of the courts in a democratic society; butunlike their constitutional counterparts, they can be modified orabrogated by Congress. Numbered among these prudential
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requirements is the doctrine . . . that a plaintiffs grievance mustarguably fall within the zone of interests protected or regulated by thestatutory provision or constitutional guarantee invoked in the suit.
Bennett v. Spears, 520 U.S. 154, 162 (1997) (internal quotes and citations
omitted). The prudential standing doctrine applies in federal civil actions unless itis expressly negated by statute. Id. at 164.
Here, the constitutional guarantees invoked by plaintiff are free speech
under the First Amendment and due process under the Fifth Amendment. Neither
are actually implicated. Plaintiffs request that his property not be subject to
seizure pursuant to the October 22 Order is a nullity since there is no chance of
such seizures. Plaintiffs due process concerns are similarly baseless, as the
government has indicated that it will only resume seizures against non-defendants
in connection with Cavazos pursuant to a further court order (which it has yet to
seek). Plaintiff is attempting to prevent the government from doing something in
the future that plaintiff thinks it might do, but which it has given no indication that
it will do. To the extent that the government might seek renewed seizure
authority, the decision whether to grant it will be up to the Court based on the facts
and law relating to the request. Plaintiff has no right to presume what the
government might do in the context of an ongoing criminal prosecution, and the
Court should not prohibit the government from even asking for such relief in the
future. Plaintiff may as well ask that he be consulted before any of his brethren
are sentenced in Cavazos on the ground that a harsh sentence against one of his
fellow gang members might make him uncomfortable or afraid that he too might
go to prison someday.The issue to be determined under the zone of interest test is whether
Plaintiffs claim falls within the zone of interests that the bases for his claims are
intended to protect or regulate. Plaintiffs claims fails that test here. There is
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In other words, a court need not swallow the plaintiffs invective hook,4
line and sinker; bald assertions, unsupported conclusions, periphrastic
circumlocutions, and the like need not be credited. Aulson v. Blanchard, 83 F.3d
1, 3 (1 Cir. 1996).st
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simply no support for the proposition that First and Fifth Amendments were
intended to provide prior judicial review of relief that the government mightseek
in the future.
B. Plaintiff Has Failed to Allege Facts Sufficient to State A Claim forInjunctive of Declaratory Relief
1. Applicable Legal Standard
A motion to dismiss a complaint under Rule 12(b)(6) for failure to state a
claim upon which relief can be granted should be granted where the complaint
fails to assert a cognizable legal theory or contains insufficient factual allegations
to support a cognizable legal theory. Balistreri v. Pacifica Police Dept., 901 F.2d
696, 699 (9 Cir. 1990). A court determining a Rule 12(b)(6) motion must acceptth
the plaintiffs allegations as true and construe them in the light most favorable to
plaintiffs. In re Daou Systems, Inc., 411 F.3d 1006, 1013 (9th Cir. 2005). In
addition, all reasonable inferences that can be drawn from the complaint are
taken to be true, although conclusory allegations alone are insufficient. Pareto v.
FDIC, 139 F.3d 696, 699 (9th Cir. 1998) (citing Campanelli v. Bockrath, 100 F.3d
1476, 1479 (9th Cir. 1996));see also Gompper v. VISX, Inc., 298 F.3d 893, 896
(9th Cir. 2002) (reviewing the totality of facts and inferences from the
complaint). Of substantial importance here, the court need not accept a plaintiffs
legal characterizations. In re Delorean Motor Co., 991 F.2d 1236, 1240 (6 Cir.th
1993); Transphase Systems, Inc. v. Southern Calif. Edison Co., 839 F.Supp. 711,
718 (CD Cal 1993). Generally, review is limited to the complaint; evidence4
outside the pleadings . . . cannot normally be considered in deciding a 12(b)(6)
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motion. Cervantes v. City of San Diego, 5 F.3d 1273, 1274 (9th Cir. 1993)
(quotingFarr v. United States, 990 F.2d 451, 454 (9th Cir. 1993)).
A Rule 12(b)(6) motion attacks defects that appear on the face of the
complaint, but may also be based on documents attached to the complaint orincorporated by reference in the complaint, or matters of judicial notice. Day v.
Moscow, 955 F.2d 807, 811 (2d Cir. 1992) (granting Rule 12(b)(6) motion by
taking judicial notice of or courts own records to uphold res judicata defense).
The court may also consider documents referred to in the complaint and the full
text of documents which the complaint quotes only in part. In re Stac Electronics
Securities Litigation, 89 F.3d 1399, 1405 n.4 (9 Cir. 1996).th
Plaintiff here seeks a declaration that defendants may not seize or ask or
direct any other person or entity to seize any item or property from Plaintiff that
bears the marks sought for forfeiture in Cavazos, and a permanent injunction
enjoining defendants, their successors, agents, servants, and employees, and
anyone acting in concert with defendants from seizing any such items or property
from Plaintiff or asking or directing any other person or entity to make such
seizure. FAC at 11. In support of these requests, plaintiff alleges nothing more
than that the government obtained the October 22 Order and that the court
subsequently barred the government from seizing property from plaintiff pursuant
to that order. Those allegations alone are arguably enough to compel dismissal of
this action, because those facts make it clear that plaintiff faces no risk of injury
based on the operative facts alleged in the FAC, i.e., the execution of the October
22 Order.However, there are additional material facts that plaintiff opted to omit from
his FAC, but from which he cannot hide. For example, while describing the July
31 Order of this Court and noting that the Court denied the defendants motion to
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reconsider that order, plaintiff neglects to acknowledge that he too sought
amendment of the courts July 31 Order, which was also denied. The court held
that an Order from this Court enjoining unauthorized activity in which the
Government may not have engaged, would amount to an advisory opinion, whichfederal courts are not authorized to issue. See Flast v. Cohen, 392 U.S. 83, 96
n.14, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968). In amending his complaint to ask
for the same relief denied him in his motion to amend the July 31 Order, plaintiff
has done nothing more than make his request for an advisory opinion in a different
setting. But he is no more entitled to an advisory opinion in response to his first
amended complaint than he was in connection with his earlier motion. More
importantly, there has been a material alteration in facts which renders plaintiffs
requests for declaratory and injunctive relief entirely moot. Plaintiff is not entitled
to an order restricting the government from exercising authority it has abandoned
or with respect to a court order which it has yet to request. To the extent the
government makes such a request, it will be up to the court to decide in the first
instance whether such a request should be granted, not plaintiff.
IV.CONCLUSION
While leave to amend is generally granted where a plaintiff has failed to
plead a claim under Rule 12(b)(6), leave to amend should be denied where
allegations of other facts consistent with the challenged pleadings could not
possible cure the defect. Schreiber Dist. v. Serv-Well Furniture Co., 806 F.2d
1393, 1401 (9 Cir. 1986). Here, notwithstanding plaintiffs attempts to disguiseth
the obvious mootness of his claim in order to keep this litigation alive, it is clear
that this action arose entirely from the October 22 Order. It is equally clear that
the governments decision to suspend its seizure authority of property from non-
defendants in Cavazos pursuant to that Order renders plaintiff without a justiciable
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