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Nassereddine v. United States Custom And Border Protection

United States District Court, E.D. Michigan, Southern Division

January 18, 2018

MOUHDEE NASSERDDINE, Plaintiff,
v.
UNITED STATES CUSTOM AND BORDER PROTECTION, and R. GIL KERLIKOWSKE, in his official capacity as the Commissioner of the United States Custom and Border Protection, Defendants.

          OPINION AND ORDER GRANTING DEFENDANTS' MOTION TO DISMISS

          LINDA V. PARKER U.S. DISTRICT COURT JUDGE.

         This lawsuit arises from the administrative seizure of $15, 675 in U.S. currency from Plaintiff Mouhdee Nasserddine at the Detroit Metropolitan Airport on August 4, 2015. Defendant United States Customs and Border Protection (“CBP”) provided formal notice to Plaintiff and an opportunity to respond to the forfeiture proceedings on August 7, 2015. Plaintiff seeks to set aside the administrative seizure pursuant to 18 U.S.C. § 983(e), alleging the forfeiture was constitutionally deficient. (ECF No. 1.)

         Presently before the Court is Defendants' motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and (6), filed April 17, 2017. (ECF No. 20.) Plaintiff filed a brief responding to the motion on June 8, 2017. (ECF No. 24.) Defendants filed a reply brief on June 20, 2017. (ECF No. 25.) Finding the facts and legal arguments sufficiently presented in the parties' briefs, the Court is dispensing with oral argument pursuant to Eastern District of Michigan Local Rule 7.1(f).

         I. Factual Background

         On August 4, 2015, Plaintiff and his mother were at the Detroit Metropolitan Airport scheduled to depart on an international flight. (ECF No. 1 at Pg ID 5.) Plaintiff and his mother were selected for a routine examination, and the CBP officer noticed they were carrying large sums of cash. (Id. at Pg ID 18.) When inquiring as to the amount of cash they each were carrying, Plaintiff indicated he and his mother were carrying $8, 000 each. (Id.) Upon further inspection, the CBP officer discovered all of the money belonged to Plaintiff, which totaled $15, 675. (Id. at Pg ID 17-18.) Plaintiff was in violation 31 U.S.C. § 5316(a)[1] for failing to report cash that exceeded $10, 000 for international travel. Plaintiff told the CBP officer he gave his mother some of his money because he did not want to be over $10, 000. (Id. at Pg ID 18.) CBP seized the unreported funds pursuant to 31 U.S.C. § 5317(c)(2), which permits civil forfeiture for violations of § 5316.

         On August 7, 2015, CBP sent Plaintiff a letter through certified mail, titled “Notice of Seizure” advising Plaintiff that his property was seized and subject to civil forfeiture. (Id. at Pg ID 17.) In the letter, Plaintiff was given several options, including: (1) to file a petition within thirty days from the date of letter seeking release of the property; (2) to seek court action no later than September 12, 2015; or (3) to take no action and CBP would initiate nonjudicial forfeiture proceedings within thirty-five days from the date of the letter. (Id. at Pg ID 17-18.)

         Plaintiff, though his attorney, sent CBP a letter on September 3, 2015 requesting a 60 day extension in order for Plaintiff to gather documents to support his claim, many of which were from Lebanon. (Id. at Pg ID 15.) On October 9, 2015, Plaintiff, through his attorney, sent CBP a second letter requesting that CBP halt the forfeiture proceedings and stated, “we have been attempting to gather the required bank statements, tax returns, medical documentation, affidavits, and other evidence to make your determination as easy as possible. There has also been delay due to the Muslim holiday and getting documents from overseas.” (Id. at Pg ID 23.) Finally, on October 23, 2015, Plaintiff submitted his petition to CBP with supporting documents. (Id. at Pg ID 25.)

         On February 26, 2016, CBP sent Plaintiff a formal letter advising Plaintiff that the petition filed on October 23, 2015 was “untimely and would not be considered and that administrative forfeiture proceedings had been initiated.” (Id. at Pg ID 13.)

         II. Applicable Standards

         A motion to dismiss pursuant to Rule 12(b)(1) challenges the Court's subject matter jurisdiction. Fed.R.Civ.P. 12(b)(1). Where subject matter jurisdiction is challenged under this rule, the plaintiff bears the burden of proving jurisdiction. Moir v. Cleveland Reg'l Transit Auth., 895 F.2d 266, 269 (6th Cir. 1990). Rule 12(b)(1) motions to dismiss for lack of subject matter jurisdiction fall into two general categories: facial attacks and factual attacks. Fed.R.Civ.P. 12(b)(1); United States v. Ritchie, 15 F.3d 592, 598 (6th Cir. 1994).

         A facial attack challenges the sufficiency of the pleading itself. In that instance, the court accepts the material allegations in the complaint as true and construes them in the light most favorable to the nonmoving party. Ritchie, 15 F.3d at 598 (citing Scheuer v. Rhodes, 416 U.S. 232, 235-37 (1974)). In contrast, a factual attack is “not a challenge to the sufficiency of the pleading's allegation, but a challenge to the factual existence of subject matter jurisdiction.” Id. Where the motion presents a factual attack, the court does not afford a presumption of truthfulness to the allegations but weighs the evidence to determine whether subject matter jurisdiction exists. On a factual attack, the court has broad discretion to consider extrinsic evidence, including affidavits and documents, and can conduct a limited evidentiary hearing if necessary. See DLX, Inc. v. Kentucky, 381 F.3d 511, 516 (6th Cir. 2004); Ohio Nat'l Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir.1990).

         II. Applicable Law and Analysis

         The Civil Asset Forfeiture Recovery Act of 2000, 18 U.S.C. § 983, (“CAFRA”) sets forth the procedures for civil forfeitures. 18 U.S.C. § 983(a)(1)(A)(i) provides, in pertinent part, what ...


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