United States District Court, D. Columbia.
For HIMEX COMPANY, INC., Plaintiff: Peter S. Herrick, LEAD ATTORNEY, PETER S HERRICK PA, Miami, FL.
For UNITED STATES OF AMERICA, Defendant: Michelle Lo, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Washington, DC.
MEMORANDUM OPINION [Dkt. #11]
RICHARD J. LEON, United States District Judge.
Plaintiff Himex Co. (" plaintiff" or " Himex" ), a Los Angeles-based corporation, brings this action against the United States Customs and Border Patrol
(" CBP" ), seeking damages under the Federal Tort Claims Act (" FTCA" ). Now before the Court is the United States' Motion to Dismiss. [Dkt. #11]. Upon consideration of the parties' pleadings, relevant law, and the entire record herein, the Court concludes that plaintiff's claim fails for lack of subject-matter jurisdiction and accordingly, will GRANT the defendant's Motion to Dismiss.
STANDARD OF REVIEW
" In deciding a motion to dismiss, the court must accept as true all well-pleaded factual allegations and draw all reasonable inferences in favor of the plaintiffs." Am. Farm Bureau v. U.S. E.P.A., 121 F.Supp.2d 84, 90 (D.D.C. 2000) (internal quotations omitted). Because the court may not address the plaintiff's claims without subject-matter jurisdiction, a motion to dismiss under Rule 12(b)(1) imposes an affirmative obligation on the court to ensure that jurisdiction is proper. See Schmidt v. U.S. Capitol Police Bd., 826 F.Supp.2d 59, 65 (D.D.C. 2011); Grand Lodge of Fraternal Order of Police v. Ashcroft, 185 F.Supp.2d 9, 13 (D.D.C. 2001). When considering a motion to dismiss under 12(b)(1), the court may also consider materials outside the pleadings to assure itself that jurisdiction is proper. See Herbert v. National Academy of Sciences, 974 F.2d 192, 197, 297 U.S. App. D.C. 406 (D.C. Cir. 1992)).
On April 8, 2010, the United States Customs and Border Patrol seized 7,200 pairs of sunglasses belonging to the plaintiff at the port of Los Angeles, California. Compl. [Dkt. #1] at ¶ 6. The CBP seized the sunglasses because they bore marks that allegedly violated trademarks owned by the fashion house Louis Vuitton Malleteir (" Louis Vuitton" ). See Am. Compl. [Dkt. #10] at ¶ ¶ 6-7. On April 23, 2010, the Fines, Penalties and Forfeitures Office of CBP (" FPFO" ) informed Himex that the seized sunglasses were subject to forfeiture, but that plaintiffs could avoid it by obtaining the written consent of the trademark owner, pursuant to 19 C.F.R. § 133.52. See Ex. 1 to Def.'s Mot. to Dismiss (" Def.'s MTD" ) [Dkt. #11-1]. Alternatively, Himex could choose to abandon its claim to the seized goods, thereby waiving any future notice by CBP regarding the forfeiture proceedings. Id. FPFO also notified Himex that " [i]n addition to forfeiture, [it] may be liable for a penalty" pursuant to 19 U.S.C. § 1526(f). Id.
On May 13, 2010, a Himex representative signed a CBP " Notice of Abandonment and Assent to Forfeiture of Prohibited or Seized Merchandise" (" Notice of Abandonment" ). Ex. 2 to Def.'s MTD [Dkt. #11-2]. The notice references the 7,200 pairs of sunglasses and states, " I hereby abandon all claim to . . . and waive any further rights or proceeding relative to these articles." Id. On September 15, 2010, CBP issued a Disposition Order for the destruction of the seized goods, and on November 3, 2010, the FPFO destroyed the seized sunglasses. See Ex. B to Compl. [Dkt. #3-2].
Eight months later, in July 2011, the FPFO issued a civil penalty against Himex in the amount of $3,125,235 pursuant to 19 U.S.C. § 1526(f). See Am. Compl. at ¶ 9. The amount of the penalty equaled " the value the merchandise would have had if genuine, according to the manufacturer's suggested ...