The opinion of the court was delivered by: Gladys Kessler United States District Judge
Plaintiff CHS Industries, LLC ("CHS" or "Plaintiff") brings this action against Defendants United States Customs and Border Protection ("Customs"), United States Environmental Protection Agency ("EPA"), Unknown Employees of United States Customs and Border Protection, and Unknown Employees of United States Environmental Protection Agency (collectively, "Defendants") pursuant to Rule 41(g) of the Federal Rules of Criminal Procedure (Count I) and Bivens v. Six Unknown Federal Agents, 403 U.S. 388 (1971) (Count II).
This case is now before the Court on Defendants' Motion to Dismiss. Upon consideration of the Motion, Opposition, Reply, the entire record herein, and for the reasons set forth below, Defendants' Motion is granted.
Plaintiff is located and incorporated in Edgewater, Florida. It purchases stationary generators with nonroad engines*fn2 from Fuan Lujuan Electrical Machinery Company, Limited ("Fuan") in Fujian, China and imports them into the United States. Fuan manufactures the generators, packs and labels them, and delivers them to Plaintiff's Edgewater location. The generators have been sold to buyers prior to their delivery to Edgewater.
On August 7, 2006, a container of generators destined for Plaintiff's facilities arrived in Port of Savannah, Georgia and was detained by Customs.*fn3 That same day, Plaintiff contacted Customs to determine why the container was detained and how to procure its release. On August 21, 2006, while Customs waited for the EPA to review the shipment, it sent Plaintiff a Notice of Detention regarding the container. In the Notice, Customs informed Plaintiff that the wood shipping materials used in the container were not permitted to enter the United States.
On September 21, 2006, Customs seized CHS' "goods"*fn4 because they did not comply with 40 C.F.R. § 90.1003(a)(1)(i), which requires a certificate of conformity with emissions regulations for nonroad engines. Compl. ¶ 18. On September 27, 2008, Plaintiff "submitted an application to manipulate and exported [sic] the noncompliant wood packing materials."*fn5 Id. ¶ 17.
On October 11, 2006, Plaintiff submitted a petition for relief to Customs. On November 13, 2006, Defendant Jeffrey A. Kodish ("Kodish"),*fn6 an Attorney-Advisor for the EPA, recommended to Customs that it refuse to release the generators because they failed to comply with 40 C.F.R. §§ 89.1003(a)(1)(ii) and 89.1003(a)(6), both of which also require a certificate of conformity with emissions regulations for nonroad engines.
On November 14, 2006, Defendant Frank Jaramillo ("Jaramillo"),*fn7 Area Port Director for Customs in Savannah, or Defendant Mary C. Bensel Mills ("Mills"),*fn8 a Fines, Penalties and Forfeitures Officer at Customs' Savannah location, denied Plaintiff's October 11, 2006 petition based on 40 C.F.R. § 90.1003(a)(1)(ii). However, he/she "permit[ted]" Plaintiff to export the noncompliant wood, and to export the generators to a non-contiguous country. Compl. ¶ 25, Ex. D. On June 13, 2007, Customs sold the generators at auction. [Dkt. No. 5-3, filed June 12, 2009.]
Plaintiff alleges that, as a result of Defendants' detention of its container, it lost orders from customers, suffered "manifest injustice" and "irreparable injury," and had its business "effectively shut down." Compl. ¶¶ 29-30. It also alleges that it lost $2592.50 as a result of needing to export the noncompliant wood, three wholesale business accounts with potential annual sales of $201,000 per year, and "all retail accounts which have a potential net profit of $270,000 with a potential bill of $40,500 in potential service and a potential sales [sic] of $27,000 for replacement parts." Id. ¶¶ 37-40. It further states that these losses caused it to decrease its payroll, use credit to purchase materials, and alter its normal course of business.
On December 26, 2006, Plaintiff filed the instant Complaint,*fn9 alleging that it is entitled to "Return of Property Pursuant to Rule 41(g)" of the Federal Rules of Criminal Procedure (Count I) and "Monetary Damages Pursuant [t]o Bivens" (Count II). Id. at 5, 6. Plaintiff cites a violation of its Fifth Amendment rights as the basis for its Bivens claim. See id. ¶¶ 1, 33, 35, 43.
In September 2007, Plaintiff filed an administrative petition with Customs seeking the proceeds of the auction of the generators. The record is not clear as to whether the petition has been decided.*fn10
On March 24, 2008, in response to a March 10, 2008 Order for parties to submit praecipes regarding further proceedings, Plaintiff filed an Amended Motion Opposing Defendants' Motion to Dismiss or in the Alternative to Transfer and its Points and Authorities [Dkt. No. 16]. In this document, Plaintiff stated that it seeks damages "as an equitable remedy or under the Federal Tort Claims Act," referencing Federal Rule of Criminal Procedure 41(g) in its request for equitable relief.*fn11 Pl.'s Am. Mot. Opp'ing at 2.
To survive a motion to dismiss, a plaintiff need only plead "enough facts to state a claim to relief that is plausible on its face" and to "nudge [his or her] claims across the line from conceivable to plausible." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "[O]nce a claim has been stated adequately, it may be supported by ...