Govt Motion to Dismiss Rivera Complaint

8/14/2019 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: [email protected]

[email protected]

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)

/ / /

/ / /

Case 2:09-cv-02435-FMC-VBK Document 50 Filed 11/09/2009 Page 1 of 19


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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.

4

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

10

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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Govt Motion to Dismiss Rivera Complaint

Documents