United States v. Mask of Ka-Nefer-Nefer, 4:11CV504 HEA

• Decision Date: 31 March 2012
• Docket Number: No. 4:11CV504 HEA,4:11CV504 HEA
• Parties: THE UNITED STATES OF AMERICA, Plaintiff, v. MASK OF KA-NEFER-NEFER, Defendant.
• Court: U.S. District Court — Eastern District of Missouri

THE UNITED STATES OF AMERICA, Plaintiff,

v.MASK OF KA-NEFER-NEFER, Defendant.

No. 4:11CV504 HEA

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION

Dated: March 31, 2012

OPINION, MEMORANDUM AND ORDER

The United States of America ("the Government") brings this action pursuant to 19 U.S.C. § 1595a, seeking forfeiture of all right, title, and interest in an Egyptian artifact known as the Mask of Ka-Nefer-Nefer ("the Mask"), currently located in Gallery 130 of the St. Louis Art Museum ("the Museum"), the only claimant in this action. The Museum has filed a motion to dismiss the Government's civil forfeiture complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) and the Supplemental Rules for Admiralty or Maritime Claims and Asset Forfeiture Actions ("the Supplemental Rules"). For the reasons set forth below, claimant's motion will be granted.

Background

In its verified complaint, the Government boldly states that it seeks the forfeiture of all rights, title and interest in a 3,200 year old Egyptian Mask because"the circumstances" indicate it was stolen property at the time it was imported into the United States. To support its legal conclusion that the Mask was stolen, the Government alleges that the Mask was excavated at Saqqara, Eqypt, in 1952, placed in storage in Saqqara following its excavation where it remained until 1959, and then was "packed for shipping" to Cairo, Egypt, in preparation for an exhibit in Tokyo, Japan. The complaint further states that the Mask was "received by police guards" in Cairo in July of 1959, but instead of traveling to Tokyo, it remained in Cairo until 1962 when it was transferred back to Saqqara.

The verified complaint further states that the Mask was removed from Saqqara in 1966 and "traveled" to Cairo in "box number fifty-four," the "last documented location of the Mask in Egypt." The complaint then goes on to state that in 1973, an inventory was taken of box number fifty-four, whereupon it was discovered the Mask was "missing." The complaint states, "The register did not document that the Mask was sold or given to a private party during the time frame of 1966 to 1973."

Claimant, the Museum, asserts that the Government's verified complaint is subject to dismissal because it fails to state a claim pursuant to Fed.R.Civ.P. 12(b)(6) and Federal Rule of Civil Procedure Supplemental Rule G(8)(b). Claimant additionally argues that the complaint is time-barred by the applicable statute of limitations and the equitable doctrine of laches. The Government opposes claimant's arguments for dismissal.

Legal Standard

Pleading requirements in a civil forfeiture action are governed by the Supplemental Rules. Supplemental Rule E(2)(a) requires that the Government set forth its claims in the complaint "with such particularity that the defendant or claimant will be able, without moving for a more definite statement, to commence an investigation of the facts and to frame a responsive pleading." Supplemental Rule G(2)(f) requires that the Government "state sufficiently detailed facts to support a reasonable belief that the government will be able to meet its burden of proof at trial." Accordingly, the Government's verified complaint must "assert specific facts supporting an inference that the property is subject to forfeiture." United States v. All Funds on Deposit in Dime Savings Bank of Williamsburg Account No. 58-400738-1 in the Name of Ishar Abdi and Barbar Abdi ("Dime Savings"), 255 F.Supp.2d 56, 66-67 (E.D.N.Y.2003) (quotation marks omitted). Accord United States v. Approximately $25,829,681.80 in Funds, plus Interest, in Court Registry Investment Sys., No. 98 Civ. 2682, 1999 WL 1080370, at *7 (S.D.N.Y. Nov. 30, 1999) (citing United States v. All Right, Title & Interest in Real Property & Appurtenances Known as 288-290 N. St., Middletown, New York, 743 F.Supp. 1068, 1074 (S.D.N.Y.1990); United States v. All Right, Title & Interest in Real Property & a Bldg. Known as 16 Clinton St., New York, New York, 730 F.Supp. 1265, 1267 (S.D.N.Y.1990)). However, the Government is not required to allege inthe complaint all of the facts and evidence at its disposal. It is sufficient for the Government to simply plead enough facts for the claimant to understand the theory of forfeiture, to file a responsive pleading, and to undertake an adequate investigation. See Dime Savings, 255 F.Supp.2d at 69. Accord United States v. $109,086.00, No. Civ.A.H-04-3727, 2005 WL 1923613, at *5 (S. D. Tex. Aug. 10, 2005 (holding that the Government need not set out the evidence of its allegations in its complaint or plead every fact at its disposal).

The Federal Rules of Civil Procedure apply to forfeiture actions so long as they are not "inconsistent with" the Supplemental Rules. Fed.R.Civ.P.Supp.R.A(2). Accord United States v. $8,221,877.16 in U.S. Currency, 330 F.3d 141, 149 (3d Cir. 2003). See also, Fed.R.Civ.P.Supp.R.G. Advisory Comm. Note ("The Civil Rules continue to provide the procedural framework within which Rule G and the other Supplemental Rules operate."). The pleading requirements provided by the Supplemental Rules have traditionally been considered "more stringent than the general pleading requirements . . . [,] an implicit accommodation to the drastic nature of the civil forfeiture remedy." United States v. $15,270,885.69, No. 99 Civ. 10255, 2000 WL 1234593, *at *2-3 (S.D.N.Y. Aug. 31, 2000) (quoting United States v. Daccarett, 6 F.3d 37, 47 (2d Cir. 1993)). However, the Supreme Court's recent landmark decisions in Bell Atlantic Corporation v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009), have arguably shifted general pleadingstandards to a more heightened form of pleading, requiring that allegations in a complaint meet a standard of "plausibility" to survive a motion to dismiss. It is not entirely clear whether the "plausibility" standards enunciated in Iqbal apply to civil forfeiture cases, given that Iqbal was based on an interpretation of Federal Rule of Civil Procedure 8(a), and the Supplemental Rules expressly state that Supplemental Rule G(2) governs the sufficiency of civil forfeiture complaints. Given the fairly stringent pleading standards enunciated in the Supplemental Rules for civil forfeiture actions, the Court will not concern itself with application of the plausibility standards to civil forfeiture actions at this time.

Discussion

The Government bases its claim for forfeiture on Section 1595a of Title 19. Section 1595a(c) provides in relevant part:

Merchandise which is introduced or attempted to be introduced into the United States as contrary to law shall be treated as follows: (1) the merchandise shall be seized and forfeited if it - (A) is stolen, smuggled, or clandestinely imported or introduced.

In order to exercise the seizure and forfeiture of the Mask, the statute requires pleading the following: (1) facts relevant to whether the Mask was "stolen, smuggled or clandestinely imported or introduced" and (2) facts related to some predicate unlawful offense, presumably a law with some "nexus" to international commerce from which the Title 19 customs...