USA v. $2,221.25 from First Security Service Bank Account xxxxx63 et al
MEMORANDUM AND ORDER denying the claimants' 10 Motion to Dismiss Complaint. Signed by Judge Susan Webber Wright on 10/27/11. (vjt)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
UNITED STATES OF AMERICA,
$2,221.25 from First Security Service
Bank Account, et al.,
No. 4:10CV01866 SWW
Memorandum and Order
The government filed a civil forfeiture complaint alleging the defendant property
represents funds used in the structuring of transactions to evade the reporting requirements of 31
U.S.C. § 5313 and in violation of 31 U.S.C.§§ 5317 and 5324 and 18 U.S.C. § 981. The
claimants, Richard and April Helus, filed a motion to dismiss, disputing the facts that are the
basis for the complaint and alleging their constitutional rights were violated. The government
responded in opposition to the motion.
In deciding a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6) of
the Federal Rules of Civil Procedure, all facts alleged in the complaint are assumed to be true.
Doe v. Northwest Bank Minn., N.A., 107 F.3d 1297, 1303-04 (8th Cir. 1997). The complaint must
be reviewed in the light most favorable to the plaintiff, McMorrow v. Little, 109 F.3d 432, 434
(8th Cir. 1997), and should not be dismissed unless it is clear beyond doubt that the plaintiff can
prove no set of facts thereunder which would entitle him or her to relief. Hafley v. Lohman, 90
F.3d 264, 266 (8th Cir. 1996). The Court may grant a motion to dismiss on the basis of a
dispositive issue of law. Neitzke v. Williams, 490 U.S. 319, 326 (1989).
A motion to dismiss is not a device for testing the truth of what is asserted or for
determining whether the plaintiff has any evidence to back up what is in the complaint. ACLU
Foundation v. Barr, 952 F.2d 457, 467 (D.C. Cir. 1991). The issue is not whether the plaintiff
will ultimately prevail but whether the plaintiff is entitled to offer evidence to support the claims,
irrespective of a judge’s disbelief of a complaint’s factual allegations or a judge’s belief that the
plaintiff cannot prove what the complaint asserts. Id. See also Hickman v. Tosco Corp., 840
F.2d 564, 565 (8th Cir. 1988); Fusco v. Xerox Corp., 676 F.2d 332, 334 (8th Cir. 1982). Thus, a
motion to dismiss should be granted “as a practical matter . . . only in the unusual case in which
a plaintiff includes allegations that show on the face of the complaint that there is some
insuperable bar to relief.” Frey v. City of Herculaneum, 44 F.3d 667, 671 (8th Cir. 1995)
(quoting Hishon v. King & Spalding, 467 U.S. 69, 73 (1984)).
The Court finds claimants fail to establish they are entitled to dismissal of the complaint.
Therefore, their motion [docket entry 10] is denied.
DATED this 27th day of October, 2011.
/s/Susan Webber Wright
UNITED STATES DISTRICT JUDGE
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