Govt Motion To Dismiss Rivera Complaint

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GEORGE S. CARDONA Acting United States Attorney CHRISTINE C. EWELL Assistant United States Attorney Chief, Criminal Division STEVEN R. WELK California Bar No. 149883 Assistant United States Attorney Chief, Asset Forfeiture Section FRANK D. KORTUM California Bar No. 110984 Assistant United States Attorney Asset Forfeiture Section th Federal Courthouse, 14 Floor 312 North Spring Street Los Angeles, California 90012 Telephone: (213) 894-6166/5710 Facsimile: (213) 894-7177 E-mail: [email protected] [email protected]

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Attorneys for Defendants 12 13 14

UNITED STATES DISTRICT COURT

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FOR THE CENTRAL DISTRICT OF CALIFORNIA

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WESTERN DIVISION RAMON RIVERA,

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Plaintiff,

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v. RONNIE A. CARTER, ETC., ET AL.

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Defendants. 22 23 24 25 26

///

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///

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) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

NO. CV 09-2435 FMC (VBKx) GOVERNMENT’S NOTICE OF MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED DATE: December 14, 2009 TIME: 10:00 a.m. CTRM: 750(Roybal)

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TABLE OF CONTENTS

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Page

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TABLE OF AUTHORITIES.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

4

I.

INTRODUCTION.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

5

II.

STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

6

III.

ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 A.

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Dismissal Is Proper Pursuant to Rule 12(b)(1) Because Plaintiff Lacks Standing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

8

1.

Plaintiff Lacks Article III Standing. . . . . . . . . . . . . . . . . . . . . . 5

9

a.

Plaintiff has suffered no injury in fact. . . . . . . . . . . . . . . 7

b.

Plaintiff can establish no causal connection between the action alleged and his alleged injury. . . . . . . . . . . . . . . . 7

c.

There is no likelihood that Plaintiff’s claim can be redressed by a favorable decision. . . . . . . . . . . . . . . . . . 8

10 11 12 13

2. 14

B.

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The Court Should Decline to Assume Jurisdiction on Prudential Standing Grounds. . . . . . . . . . . . . . . . . . . . . . . . . . 8

Plaintiff Has Failed to Allege Facts Sufficient to State A Claim for Injunctive of Declaratory Relief. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

16

1.

Applicable Legal Standard.. . . . . . . . . . . . . . . . . . . . . . . . . . . 10

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IV.

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

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TABLE OF AUTHORITIES

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FEDERAL CASES

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Aetna Life Insurance Of Hartford v. Haworth, 300 U.S. 227 (1937)........................................................................................ 6

4 5 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

7 8 9

Bennett v. Spears, 520 U.S. 154 (1997).................................................................................... 6, 9 Campanelli v. Bockrath, 100 F.3d 1476 (9th Cir. 1996). ..................................................................... 10

10 11 12

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

13 14 15

Day v. Moscow, 955 F.2d 807 (2d Cir. 1992). ........................................................................ 11 In re Delorean Motor Co., 991 F.2d 1236 (6th Cir. 1993). ..................................................................... 10

16 17 18

Elk Grove Unified School District v. Newdow, 542 U.S. 1 (2004)............................................................................................ 8 Ewing v. Mytinger & Cassellberry, 339 U.S. 594 (1950)........................................................................................ 5

19 20 21

Farr v. United States, 990 F.2d 451 (9th Cir. 1993). ....................................................................... 11 Flast v. Cohen, 392 U.S. 83 (1968)........................................................................................ 12

22 23 24

Gompper v. VISX, Inc., 298 F.3d 893 (9th Cir. 2002). ....................................................................... 10 Haase v. Sessions, 835 F.2d 902 (D.C. Cir. 1987). ....................................................................... 5

25 26

Hall v. Beals, 396 U.S. 45 (1969).......................................................................................... 6

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TABLE OF AUTHORITIES (cont’d)

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FEDERAL CASES

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Headwaters, Inc. v. Bureau of Land Management, 893 F.2d 1012 (9th Cir. 1989). ....................................................................... 5

4 5 6

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

7 8 9

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992).................................................................................... 5, 6 MedicalImmune, Inc. v. Genetech, Inc., 549 U.S. 118 (2007)........................................................................................ 6

10 11 12

Pareto v. FDIC, 139 F.3d 696 (9th Cir. 1998). ....................................................................... 10 Ramming v. United States, 281 F.3d 158 (5th Cir. 2001). ......................................................................... 4

13 14 15

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

16 17 18

Seven Words LLC v. Network Solutions, 260 F.3d 1089 (9th Cir. 2001). ................................................................... 5, 6 Sprint Communications, Co., L.P. v. APCC Serv., Inc., ___ U.S. ___, 128 S. Ct. 2531 (2008)............................................................. 8

19 20 21

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

22 23 24

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 (cont’d)

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FEDERAL RULES

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F.R.Civ.P. 12............................................................................................................. 3 4

F.R.Civ.P. 12(b). ....................................................................................................... 4 5

F.R.Civ.P. 12(b)(1). .......................................................................................... 2, 4, 5 6

F.R.Civ.P. 12(b)(6). ................................................................................ 2, 10, 11, 12 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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I. INTRODUCTION

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On October 16, 2009, plaintiff Ramon Rivera (“plaintiff”) filed a First 3

Amended Complaint (“FAC”) in this action, essentially updating developments in 4

this and a completely unrelated criminal case to which he is not a party (United 5

States v. Cavazos, CR 08-1202 FMC). Notwithstanding the amendment, 6

plaintiff’s FAC, like his original complaint, arises entirely from a restraining order 7

entered in October 2008 (the “October 22 Order”) in Cavazos that, among other 8

things, authorized the government to seize items bearing a registered trademark in 9

which plaintiff freely admits he has no ownership or other interest. While adding 10

certain facts concerning developments since the filing of his complaint, plaintiff 11

carefully omits other material developments from his FAC, chief among them a 12

fact that is dispositive of this case, i.e., that the government, in a public filing in 13

Cavazos of which this court may take judicial notice, voluntarily discontinued its 14

enforcement of the portion of the October 22 Order permitting seizure of property 15

from non-defendants. As a result, plaintiff is now seeking injunctive and 16

declaratory relief to prevent the government from doing something that it did 17

initially pursuant to an express order of this Court (although never to him), and has 18

since stopped doing voluntarily. 19

In effect, plaintiff seeks to appoint himself the arbiter of this Court’s actions 20

in connection with the forfeiture proceedings in Cavazos. However, the 21

fundamental principles of federal law and jurisdiction require that parties may only 22

bring a claim in federal court where there is a properly justiciable controversy, and 23

that courts only adjudicate actual controversies, not provide advisory opinions 24

about possible future actions that might result in some sort of constitutional 25

violation. As demonstrated below, there is no justiciable controversy as between 26

plaintiff and the defendants, and he is not entitled to the advisory opinion he seeks 27 28

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by his first amended complaint. His efforts to continue in his collateral attacks on

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an ongoing criminal prosecution in which he has no stake should not be allowed.

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For a host of reasons, including the doctrine of sovereign immunity, plaintiff

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cannot be granted relief he seeks, and his action must be dismissed. The

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government seeks dismissal pursuant to Federal Rule of Civil Procedure 12(b)(1)

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(lack of subject matter jurisdiction) and (6) (failure to state a claim upon which

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relief can be granted).

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II.

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STATEMENT OF FACTS

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The facts of this case have been exhaustively enumerated in the filings in

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this matter. In the setting of this motion, the court may consider the facts alleged

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in the FAC and those facts of which it may take judicial notice in determining the

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Rule 12(b)(6) motion. It is not so limited in determining the motion under Rule

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12(b)(1), since that presents a jurisdictional question.

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Plaintiff alleges that he isa member of the criminal motorcycle gang known

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as the Mongols, the principal members of which have been indicted in Cavazos on

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RICO and other charges. Plaintiff seeks relief from a number of federal

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government officials. FAC at ¶¶ 5-9. He correctly notes that as part of the

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Cavazos prosecution, the government is seeking the criminal forfeiture of two

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registered marks, one of which was restrained by this Court in the October 22

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Order. The marks are symbols of the gang, and gang members, including plaintiff,

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wear the symbols to identify themselves to others as members of the gang. FAC at

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¶¶ 10-15, 25-26.

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Plaintiff admits that neither he nor any other members of the gang “ever had

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any property interest in” either mark. FAC at ¶17. Plaintiff “does not claim an

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ownership or other property interest” in either mark. FAC at ¶ 24. He alleges that

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government agents seized items bearing the mark from other gang members, but

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never from plaintiff. Indeed, plaintiff alleges no personal knowledge of any items

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having been seized. He merely “has been informed” of the seizures. FAC at ¶ 18-

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20. He alleges that he was told by a local police officer that if federal agents saw

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plaintiff wearing the mark, they would confiscate it pursuant to the October 22

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Order, but does not allege that anything was ever, in fact, confiscated from him.

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FAC at ¶ 21.

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He alleges that on July 31, 2009, this Court granted a preliminary injunction

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barring the government from seizing any items bearing the mark, but fails to note

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that the Court’s July 31 Order applied only to plaintiff.1 Plaintiff then goes on to

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allege certain actions taken by the Court and the government in Cavazos, but self-

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servingly neglects to include the material fact that the government voluntarily

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suspended its enforcement of the seizure provisions of the October 22 Order as

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against non-defendants in a public filing in Cavazos months ago. See exhibit to

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defendants’ request for judicial notice filed contemporaneously herewith. FAC at

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¶ 27-28. Plaintiff then alleges that

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[d]ue to the government’s threat to seize items displaying the [marks], and the actual seizure of such items from persons not indicted in Cavazos, [plaintiff] has been chilled and deterred from publicly wearing or displaying the [marks] and has refrained from doing so.

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FAC at ¶ 29. However, plaintiff fails to allege when, how or by whom he was 20

ever threatened in such a manner, or any factual basis for his purported fear that 21

property will be seized from him for the reasons alleged in the FAC. 22 23 24 25 26 27 28

The defendants ask that the court take judicial notice of the July 31 Order 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 (9th Cir. 1996). 1

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III. ARGUMENT

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A.

Dismissal Is Proper Pursuant to Rule 12(b)(1) Because Plaintiff Lacks Standing

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A federal court may adjudicate only those cases which the Constitution and 5

Congress authorize it to adjudicate. Kokkonen v. Guardian Life Ins. Co. Of 6

America, 511 U.S. 375, 377 (1994). Plaintiff bears the burden of establishing 7

jurisdiction. Id.; Stock West, Inc. v. Confederated Tribes, 873 F.2d 1221, 1225 (9th

8

Cir. 1989). In determining a motion to dismiss, a court should first determine 9

issues bearing upon jurisdiction, since if the court lacks jurisdiction to adjudicate 10

the purported claim, that finding is dispositive of the motion and will require 11

dismissal. Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001). Here,

12

plaintiff seeks injunctive and declaratory relief against federal officials acting in 13

their official capacities to prevent said officials from taking action that the 14

government has publicly acknowledged in court filings that it does not intend to 15

take without a further court order. Specifically, plaintiff seeks to bar the 16

defendants from seizing property from him pursuant to the October 22 Order. But 17

the undisputed facts demonstrate not only that plaintiff was never actually affected 18

by the October 22 Order, but that there is no chance whatsoever that he might have 19

any action taken against him pursuant to that Order.2

20

A defendant may move to dismiss an action under Rule 12(b)(1) for lack of 21

subject matter jurisdiction. Unlike other motions under Rule 12(b), in determining 22 23

This assumes no change in other circumstances, of course. For example, 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. 2

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such a motion, the court is not necessarily limited to consideration of the

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allegations of the complaint. It may consider extrinsic evidence and, if the

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evidence is disputed, it may weigh the evidence and determine the facts necessary

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to resolve the jurisdictional question. Roberts v. Corrothers, 812 F.2d 1173, 1177

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(9th Cir. 1987).

6

1.

7

Plaintiff Lacks Article III Standing

In order to prosecute a civil case in federal court, a plaintiff must

8

demonstrate that the suit constitutes a justiciable “case” or “controversy” within

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the Article III jurisdiction of the federal courts. Lujan v. Defenders of

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Wildlife, 504 U.S. 555, 561 (1992). A Rule 12(b)(1) motion is an appropriate

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vehicle to challenge a plaintiff’s standing. Haase v. Sessions, 835 F.2d 902 (D.C.

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Cir. 1987).

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As a preliminary matter, injunctions against the government require far

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more than a mere claim that the government might take some action that could

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result in some sort of injury to the plaintiff. “It has never been held that the hand

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of government must be stayed until the courts have an opportunity to determine

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whether the government is justified in instituting suit in the courts.” Ewing v.

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Mytinger & Cassellberry, 339 U.S. 594, 599 (1950). Moreover, where a plaintiff

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seeks injunctive and declaratory relief concerning conduct which the defendant

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has abandoned, the action must be dismissed for mootness, as there is no longer

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any case or controversy as required by Article III of the Constitution. Seven

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Words LLC v. Network Solutions, 260 F.3d 1089, (9th Cir. 2001). “A case or

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controversy exists justifying declaratory relief only where ‘the challenged . . .

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activity . . . is not contingent, has not evaporated or disappeared, and, by its

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continuing and brooding presence, casts what may well be a substantial adverse

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effect on the interests of the . . . parties.’” Headwaters, Inc. v. Bureau of Land

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Mgmt., 893 F.2d 1012, 1015 (9th Cir. 1989), quoting Super Tire Eng’g Co. v.

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McCorkle, 416 U.S. 115, 122 (1974).3 Even where constitutional issues may be

3

“interesting and difficult,” a court should avoid advisory opinions. Seven Words

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LLC, 260 F.3d at 1099, citing Hall v. Beals, 396 U.S. 45, 48 (1969).

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Aside from the general prohibition on advisory opinions, the “irreducible

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constitutional minimum” of Article III standing is a threshold requirement that

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must be satisfied by a plaintiff before a case can proceed, and requires:

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(1) that the plaintiff have suffered an “injury in fact” - an invasion of a judicially cognizable interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) that there be a causal connection between the injury and the conduct complained of - the injury must be fairly traceable to the challenged action of the defendant, and not the result of the independent 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.

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Bennett, 520 U.S. at 167, citing Defenders of Wildlife, 504 U.S. at 560-561.

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Plaintiff fails to meet these requirements for several reasons, not the least of which

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is that he has never suffered an actual legally compensable injury as a result of the

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October 22 Order, and can demonstrate no possibility of future legal injury as the

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government has voluntarily suspended enforcement of the portion of the Order

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against non-defendants. Plaintiff’s claim is therefore for nothing more than an

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“‘opinion advising what the law would be upon a hypothetical set of facts,’” which

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federal courts simply will not entertain. MedImmune, Inc. v. Genetech, Inc., 549

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U.S. 118, 142 (2007), quoting Aetna Life Ins. Of Hartford v. Haworth, 300 U.S.

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227, 241 (1937).

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The Super Tire Court held that dismissal for mootness might be avoided 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 Court’s October 22 Order. 3

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a.

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Plaintiff has suffered no injury in fact

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Plaintiff’s first hurdle with respect to Article III standing is the fact that he

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has suffered no injury in fact. Nothing was ever seized from him; no attempt was

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ever made to seize anything from him; no federal agent or officer ever threatened

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or attempted to seize any item from him, either pursuant to the October 22 Order

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or otherwise. He lacks personal knowledge of anyone having had property seized

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from them pursuant to the October 22 Order. At best, plaintiff has a baseless and

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amorphous fear that someone from the federal government is going to seize

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something from him, but that fear has no reasonable basis since the government

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has voluntarily suspended enforcement of the seizure authority provided under the

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October 22 Order with respect to non-defendants in Cavazos.

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To the extent that plaintiff seeks to prevent the government from seizing

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property on some other basis, his non-particularized fear in that regard is simply

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not a basis for hauling the defendants into court and presents a classic example of

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an advisory opinion. Such actions are strongly disfavored. See Lone Star Cement

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Corp. v. FTC, 339 F.2d 505, 510 (9th Cir. 1964) (“Except in very unusual and

17

limited circumstances, . . . Congress did not contemplate a grant of jurisdiction to

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the courts to prevent abuse or misuse of administrative power by prior restraint of

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the exercise of such powers.”) (internal citations omitted).

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Plaintiff’s characterization of his claims as constitutional in nature does not

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change the result. The requirement of injury in fact applies regardless of the basis

22

of a plaintiff’s claim.

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b.

Plaintiff can establish no causal connection between the action alleged and his alleged injury

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This element is closely related to the first, but demonstrates the lack of jurisdiction here even more clearly. Plaintiff’s 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

2

was enforcing the order. Nevertheless, plaintiff never had anything seized from

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him. Now, however, the setting is materially different. While plaintiff still has

4

had nothing seized from him, there is now no chance that anything ever will be

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seized from him pursuant to the October 22 Order. The potential injury he claims

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is now a legal and factual impossibility. Since he cannot suffer an injury in fact,

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he obviously can show no causal connection to the action alleged, i.e.,

8

enforcement of the seizure authority of the October 22 Order against non-

9

defendants. c.

10

There is no likelihood that Plaintiff’s claim can be redressed by a favorable decision

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Finally, Plaintiff cannot demonstrate a likelihood of redress. The

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defendants have already suspended enforcement of the seizure authority of the

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October 22 Order against non-defendants in Cavazos. There is no need for or

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purpose to an order compelling the defendants to stop doing something that the

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government has already stopped doing.

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2.

The Court Should Decline to Assume Jurisdiction on Prudential Standing Grounds

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In addition to Article III standing, courts may consider a doctrine known as 19

prudential standing, which embodies judicially self-imposed limits on the exercise 20

of federal jurisdiction. Elk Grove Unified School District v. Newdow, 542 U.S. 1, 21

11 (2004); Sprint Communications, Co., L.P. v. APCC Serv., Inc., ___ U.S. ___, 22

128 S.Ct. 2531, 2544 (2008). 23 24 25 26

The federal judiciary [adheres] to a set of prudential principles that bear on the question of standing. Like their constitutional counterparts, these judicially self-imposed limits on the exercise of federal jurisdiction are founded in concern about the proper - and properly limited - role of the courts in a democratic society; but unlike their constitutional counterparts, they can be modified or abrogated by Congress. Numbered among these prudential

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requirements is the doctrine . . . that a plaintiff’s grievance must arguably fall within the zone of interests protected or regulated by the statutory provision or constitutional guarantee invoked in the suit.

3

Bennett v. Spears, 520 U.S. 154, 162 (1997) (internal quotes and citations

4

omitted). The prudential standing doctrine applies in federal civil actions unless it

5

is expressly negated by statute. Id. at 164.

6

Here, the constitutional guarantees invoked by plaintiff are free speech

7

under the First Amendment and due process under the Fifth Amendment. Neither

8

are actually implicated. Plaintiff’s request that his property not be subject to

9

seizure pursuant to the October 22 Order is a nullity since there is no chance of

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such seizures. Plaintiff’s due process concerns are similarly baseless, as the

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government has indicated that it will only resume seizures against non-defendants

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in connection with Cavazos pursuant to a further court order (which it has yet to

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seek). Plaintiff is attempting to prevent the government from doing something in

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the future that plaintiff thinks it might do, but which it has given no indication that

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it will do. To the extent that the government might seek renewed seizure

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authority, the decision whether to grant it will be up to the Court based on the facts

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and law relating to the request. Plaintiff has no right to presume what the

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government might do in the context of an ongoing criminal prosecution, and the

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Court should not prohibit the government from even asking for such relief in the

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future. Plaintiff may as well ask that he be consulted before any of his brethren

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are sentenced in Cavazos on the ground that a harsh sentence against one of his

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fellow gang members might make him uncomfortable or afraid that he too might

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go to prison someday.

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The issue to be determined under the “zone of interest” test is whether

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Plaintiff’s claim falls within the zone of interests that the bases for his claims are

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intended to protect or regulate. Plaintiff’s claims fails that test here. There is

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simply no support for the proposition that First and Fifth Amendments were

2

intended to provide prior judicial review of relief that the government might seek

3

in the future.

4

B.

Plaintiff Has Failed to Allege Facts Sufficient to State A Claim for Injunctive of Declaratory Relief

5

1.

Applicable Legal Standard

6

A motion to dismiss a complaint under Rule 12(b)(6) for failure to state a 7

claim upon which relief can be granted should be granted where the complaint 8

fails to assert a cognizable legal theory or contains insufficient factual allegations 9

to support a cognizable legal theory. Balistreri v. Pacifica Police Dept., 901 F.2d 10

696, 699 (9th Cir. 1990). A court determining a Rule 12(b)(6) motion must “accept

11

the plaintiffs’ allegations as true and construe them in the light most favorable to 12

plaintiffs.” In re Daou Systems, Inc., 411 F.3d 1006, 1013 (9th Cir. 2005). In 13

addition, “all reasonable inferences” that can be drawn from the complaint are 14

taken to be true, although conclusory allegations alone are insufficient. Pareto v. 15

FDIC, 139 F.3d 696, 699 (9th Cir. 1998) (citing Campanelli v. Bockrath, 100 F.3d 16

1476, 1479 (9th Cir. 1996)); see also Gompper v. VISX, Inc., 298 F.3d 893, 896 17

(9th Cir. 2002) (reviewing the “totality of facts and inferences” from the 18

complaint). Of substantial importance here, the court need not accept a plaintiff’s 19

legal characterizations. In re Delorean Motor Co., 991 F.2d 1236, 1240 (6th Cir.

20

1993); Transphase Systems, Inc. v. Southern Calif. Edison Co., 839 F.Supp. 711, 21

718 (CD Cal 1993).4 Generally, “review is limited to the complaint; ‘evidence

22

outside the pleadings . . . cannot normally be considered in deciding a 12(b)(6) 23 24

27

In other words, a court need not “swallow the plaintiff’s invective hook, line and sinker; bald assertions, unsupported conclusions, periphrastic circumlocutions, and the like need not be credited.” Aulson v. Blanchard, 83 F.3d 1, 3 (1st Cir. 1996).

28

10

4

25 26

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motion.’” Cervantes v. City of San Diego, 5 F.3d 1273, 1274 (9th Cir. 1993)

2

(quoting Farr v. United States, 990 F.2d 451, 454 (9th Cir. 1993)).

3

A Rule 12(b)(6) motion attacks defects that appear on the face of the

4

complaint, but may also be based on documents attached to the complaint or

5

incorporated by reference in the complaint, or matters of judicial notice. Day v.

6

Moscow, 955 F.2d 807, 811 (2d Cir. 1992) (granting Rule 12(b)(6) motion by

7

taking judicial notice of or court’s own records to uphold res judicata defense).

8

The court may also consider documents referred to in the complaint and the full

9

text of documents which the complaint quotes only in part. In re Stac Electronics

10

Securities Litigation, 89 F.3d 1399, 1405 n.4 (9th Cir. 1996).

11

Plaintiff here seeks a declaration that “defendants may not seize or ask or

12

direct any other person or entity to seize any item or property from Plaintiff that

13

bears” the marks sought for forfeiture in Cavazos, and a permanent injunction

14

“enjoining defendants, their successors, agents, servants, and employees, and

15

anyone acting in concert with defendants from seizing any such items or property

16

from Plaintiff or asking or directing any other person or entity to make such

17

seizure.” FAC at 11. In support of these requests, plaintiff alleges nothing more

18

than that the government obtained the October 22 Order and that the court

19

subsequently barred the government from seizing property from plaintiff pursuant

20

to that order. Those allegations alone are arguably enough to compel dismissal of

21

this action, because those facts make it clear that plaintiff faces no risk of injury

22

based on the operative facts alleged in the FAC, i.e., the execution of the October

23

22 Order.

24

However, there are additional material facts that plaintiff opted to omit from

25

his FAC, but from which he cannot hide. For example, while describing the July

26

31 Order of this Court and noting that the Court denied the defendants’ motion to

27 28

11

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reconsider that order, plaintiff neglects to acknowledge that he too sought

2

amendment of the court’s July 31 Order, which was also denied. The court held

3

that “an Order from this Court enjoining unauthorized activity in which the

4

Government may not have engaged, would amount to an advisory opinion, which

5

federal courts are not authorized to issue. See Flast v. Cohen, 392 U.S. 83, 96

6

n.14, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968).” In amending his complaint to ask

7

for the same relief denied him in his motion to amend the July 31 Order, plaintiff

8

has done nothing more than make his request for an advisory opinion in a different

9

setting. But he is no more entitled to an advisory opinion in response to his first

10

amended complaint than he was in connection with his earlier motion. More

11

importantly, there has been a material alteration in facts which renders plaintiff’s

12

requests for declaratory and injunctive relief entirely moot. Plaintiff is not entitled

13

to an order restricting the government from exercising authority it has abandoned

14

or with respect to a court order which it has yet to request. To the extent the

15

government makes such a request, it will be up to the court to decide in the first

16

instance whether such a request should be granted, not plaintiff.

17

IV. CONCLUSION

18

While leave to amend is generally granted where a plaintiff has failed to 19

plead a claim under Rule 12(b)(6), leave to amend should be denied where 20

“allegations of other facts consistent with the challenged pleadings could not 21

possible cure the defect.” Schreiber Dist. v. Serv-Well Furniture Co., 806 F.2d 22

1393, 1401 (9th Cir. 1986). Here, notwithstanding plaintiff’s attempts to disguise

23

the obvious mootness of his claim in order to keep this litigation alive, it is clear 24

that this action arose entirely from the October 22 Order. It is equally clear that 25

the government’s decision to suspend its seizure authority of property from non26

defendants in Cavazos pursuant to that Order renders plaintiff without a justiciable 27 28

12

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