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Dastmalchian v. Department of Justice

United States District Court, D. Columbia.

October 20, 2014

SHABNAM DASTMALCHIAN, Plaintiff,
v.
DEPARTMENT OF JUSTICE, et al., Defendants

Shabnam Dastmalchian, Plaintiff, Pro se, San Fernando, CA.

For Department of Justice, U.S. Marshal Service, Anthony Moseley, U.S. Marshal, Monica Tait, AUSA, U.S. Senate Judiciary Committee, George H. WU, District Judge, Does 1-10, U.S. Attorney, For The Central District Of California, Defendants: Carl Ezekiel Ross, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Washington, DC USA.

Page 174

MEMORANDUM OPINION

ELLEN SEGAL HUVELLE, United States District Judge.

Before the Court is defendants' motion to dismiss plaintiff's pro se complaint. (Mot. to Dismiss, Sept. 3, 2014 [ECF No. 13].) For the reasons set forth herein, the Court will dismiss one claim and transfer the remaining claims to the Central District of California.

BACKGROUND

This civil case arises out of the criminal prosecution of plaintiff's husband (Masoud Bamdad) in the Central District of California. See United States v. Bamdad, 459 Fed. App'x 653, 655 (9th Cir. 2011). A jury convicted Bamdad on " ten counts of illegally prescribing oxycodone[,] . . . three counts of illegally prescribing oxycodone to persons under twenty-one years old . . . [, and] one count of criminal forfeiture of his medical office building." Id. After the jury's verdict and before sentencing, the court entered a preliminary order of forfeiture, see Fed. R. Crim. P. 32.2(b)(2), which (1) declared that " [a]ll right, title and interest of defendant Masoud Bamdad" in the medical office building was forfeited to the United States and (2) authorized seizure of the property by the United States Marshals Service (" USMS" ).[1] See Preliminary Order of Forfeiture at 2, United States v. Bamdad,

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No. 2:08-cr-00506 (C.D. Cal. Jan. 29, 2010) [ECF No. 212] (" Bamdad District Court Case" ). The order further provided that a third party could assert a legal interest in the property by filing a petition to commence an ancillary proceeding pursuant to Fed. R. Crim. P. 32.2(c)(1)[2] and 21 U.S.C. § 853(n)(2).[3] Id. at 3-4. Following the entry of the preliminary order of forfeiture, MSB Investment Group, LLC, timely filed a petition with the court claiming to be the sole owner of the medical building. See Notice of Third-Party Claimant at 1, Bamdad Criminal Case (Apr. 6, 2010) [ECF No. 230]. MSB's notice was not filed by an attorney, but rather filed by plaintiff as the " managing director" of MSB. Id. at 1. The United States moved to dismiss the petition on the ground that a limited liability company is not allowed to appear in court except through counsel. Motion To Dismiss Petition at 4, Bamdad Criminal Case (Apr. 21, 2010) [ECF No. 241]. The court granted the motion, but gave MSB additional time (until June 21, 2010), to retain counsel and file a new petition. Order, Bamdad Criminal Case (May 24, 2010) [ECF No. 245]. The court also gave plaintiff until the same date to file a petition " to determine her personal, individual interest" in the property. Id. Neither MSB nor plaintiff filed a petition. On July 29, 2010, Bamdad was sentenced to 300 months imprisonment, a $1 million fine, and the forfeiture of his interest in the medical office building where he had practiced. Judgment, Bamdad Criminal Case (Aug. 2, 2010) [ECF No. 285].) His conviction and sentence were affirmed on appeal. See United States v. Bamdad, 459 Fed. App'x at 656.

Subsequently, MSB and the United States entered into an agreement (which was signed by the prosecutor in Bamdad's criminal case, Assistant United States Attorney (" AUSA" ) Monica Tait, an attorney for MSB, and plaintiff, as the managing member of MSB), which provided that the medical office building would be sold for fair market value, with the net proceeds to be split evenly between MSB and the USMS. See Stipulation, Bamdad Criminal Case (Dec. 13, 2010) [ECF No. 330]. The court approved the agreement and entered a final order of forfeiture. See Final Order of Forfeiture, Resolving Ancillary Proceeding, Bamdad Criminal Case (Dec. 17, 2010) [ECF No. 332]. Several years later, the United States notified the court that it had reached a " buy-out" agreement with MSB and, pursuant to that agreement (again signed by AUSA Tait, an attorney for MSB, and plaintiff), it would accept a cash payment from MSB in lieu of a sale of the medical office building. See Gov't's Notice of Acceptance of Payment, Bamdad Criminal Case (July 22, 2013) [ECF No. 409].

On April 15, 2014, plaintiff filed the above-captioned case against the United States Department of Justice (" DOJ" ), AUSA Tait, the USMS, Anthony Mosely, a deputy United States Marshal in the Central District of California, United States District Judge George Wu, the presiding

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judge in plaintiff's husband's criminal case, and the United States Senate Judiciary Committee. According to the complaint, plaintiff, in addition to being Bamdad's wife and the managing member of MSB, is a licensed dentist whose practice was in the same building as her husband's medical practice. (Am. Compl. ¶ 13.) The complaint alleges that the forfeiture order in plaintiff's husband's criminal case caused the government, through AUSA Tait and Deputy Marshal Mosely, " to place constant pressure on Plaintiff, claiming that they want to sell and auction Plaintiff's property in order to recover half of the sale's price as part of Dr. Bamdad's share, while Dr. Bamdad's name has not been in the property title" (Am. Compl. ¶ 12), and further that the " above mentioned pressure was so much that it forced the Plaintiff to find a hard money lender to borrow hard money . . . in order to prevent the auctioning of her professional building and indirectly losing her own practice." (Am. Compl. ¶ 13.)

Although the complaint does not specifically identify the nature of the legal claim plaintiff is bringing against each defendant, it identifies the legal bases for her complaint as the Fifth Amendment to the United States Constitution, Bivens v. Six Unknown Federal Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), 42 U.S.C. § 1985(3), and the Federal Tort Claims Act (" FTCA" ), 28 U.S.C. § § 1346(b) & 2671-80. (Am. Compl. at 1, 6.) It alleges that the DOJ, the USMS, AUSA Tait, Deputy Marshal Mosely and District Judge Wu, individually and " in concert" have " deliberately violated and continue to violate Plaintiff's Constitutional and legal rights, and cause her serious emotional and mental distress." (Am. Compl. ¶ 16.) More specifically, it alleges that AUSA Tait and the DOJ (through AUSA Tait) violated plaintiff's rights " by misguiding and forcing her to unlawfully pay them a sum of money under duress and coercion" (Am. Compl. ¶ 2); that Deputy Marshal Moseley and the USMS (through Deputy Marshal Moseley) violated plaintiff's rights because they " misled and misinformed [her] that they could auction and sell [her] property . . . without [her] consent" (Am. Compl. ¶ 3); that District Judge Wu violated plaintiff's rights because he " unlawfully and wrongfully ordered forfeiture of a property which belongs to Plaintiff a non-party to a criminal ...


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