United States of America v. Approximately 335 Counterfeit NFL Jerseys

Filing 17

ORDER Denying 13 Motion for Default Judgment Without Prejudice signed by Magistrate Judge Gary S. Austin on 1/24/2014. (Martinez, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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1:13-cv-341 AWI GSA

UNITED STATES OF AMERICA,

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Plaintiff,

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v.

ORDER DENYING MOTION FOR
DEFAULT JUDGMENT WITHOUT
PREJUDICE

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APPROXIMATELY 335 COUNTERFEIT
NFL JERSEYS,

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(Doc. 13)

Defendant.

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INTRODUCTION

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In this in rem forfeiture action, Plaintiff United States of America (the “Government” or

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“Plaintiff”) filed an Ex Parte Motion for Default Judgment and for Final Judgment of Forfeiture.

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(Doc. 52). No opposition to the government's motion was filed. The matter was taken under

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submission without oral argument pursuant to Local Rule 230(g) and the hearing set for this

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matter was VACATED. (Doc. 13). For the reasons set forth below, the Court denies the motion

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without prejudice.
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RELEVANT FACTUAL BACKGROUND

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The Verified Complaint for Forfeiture In Rem (hereafter “Complaint”) filed on March 8,

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2013, alleges that the defendant counterfeit jerseys (“the jerseys”) constitutes property bearing or

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consisting of a counterfeit mark in violation of 18 U.S.C. § 2320(a), and is therefore subject to
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forfeiture to the United States pursuant to 18 U.S.C. § 2323. (Doc. 1 at ¶ 1).

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The basis for the complaint was that in December 2011, the Department of Homeland

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Security commenced an investigation into the business activities of the Shoe Farm, a business

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located at 20370 Avenue 232 in Lindsay, California. The complaint alleges that the owners of the

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Shoe Farm were involved in the trafficking and distribution of counterfeit NFL jerseys. As part

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of the investigation, on August 29, 2012, a federal search warrant was executed at the business

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and approximately 335 counterfeit jerseys were seized.
During the execution of the search warrant, Sami Ali Muthana was interviewed. He

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indicated that he was 33% owner of both of the Shoe Farm and the Chevron which are both

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located in the same building. (Doc. 1, pg. 3-4, ¶¶ 17-18). He also identified two other owners,

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Muneer Muqbel Saeed and Saleh Maqbel Saeed, each with a 33% ownership. Id. He stated that

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Saleh Muqbel Saeed took care of the Shoe Farm and was responsible for ordering and delivering
merchandize for the Shoe Farm. Id.

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Muneer Muqbel Saeed was also interviewed. He stated that he was the manager of the

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Chevron part of the business and had nothing to do with the Shoe Farm business. He stated that

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Saleh Maqbel Saeed would leave receipts for the Shoe Farm in the Chevron Mini Mart, but that

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Saleh Muqbel Saeed did not discuss the Shoe Farm business with Muneer. (Doc. 1, pgs. 5-6, ¶¶

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21-22). The complaint does not address Muneer’s ownership interest, nor does the pleading

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indicate whether Saleh Maqbel Saeed was ever interviewed as part of this investigation. (Doc. 1,

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pgs. 4-6, ¶¶ 17- 22).
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Another employee, Elizabeth Chavez was also interviewed. She indicated that she had

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worked as a cashier at the establishment since 2008, and that Saleh Muqbel Saeed ordered the

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merchandise for Shoe Farm. When merchandise would arrive via United Parcel Services (UPS),

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the parcels were addressed to Saleh Muqbel Saeed. (Doc. 1, Pg. 5, ¶¶ 19-20).
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Pending before the Court is Plaintiff’s Ex Parte Application for Default Judgment and

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Final Judgment of Forfeiture wherein the government seeks entry of judgment against the

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interests of Shaleh Maqbel Saeed and the Shoe Farm, as well as a final judgment of forfeiture

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vesting the United States with all rights, title, and interest in the jerseys.

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DISCUSSION
As part of the forfeiture procedure, on or about March 15, 2013, both Shaleh Maqbel

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Saeed and the Shoe Farm were served with copies of the following documents : a Verified
Complaint for Forfeiture In Rem, a Warrant for Arrest of Articles In Rem, an Order Setting

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Mandatory Scheduling Conference, a Standing Order in All Civil Cases Assigned to District

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Court Lawrence J. O’Neill, an Order Recusing Magistrate Judge and Reassigning to Another

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Magistrate Judge, a Minute Order, a Notice of Availability of Voluntary Dispute Resolution, a

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Notice of Availability of a Magistrate Judge, and a Notice of Forfeiture Letter dated March 15,
2013. These documents were sent first class and certified mail to Saleh Muqbel Saeed at his last-

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known address located at 1109 West Brown Avenue in Porterville, California 93257. (Doc. 8-1,

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pg. 2 ). On or about April 8, 2013, the United States received the signed certified mail receipt.

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(Doc.8-1, pg. 7).

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Also, on or about March 15, 2013, copies of the above-listed documents were sent via first
class mail and certified mail to the Shoe Farm at its last-known address located at 20370 Avenue
232 in Lindsay, California 93247, care of the owner/proprietor Saleh Maqbel Saeed. (Doc. 8,
pg.11). On or about March 16, 2013, the United States Attorney’s Office received the signed

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certified mail receipt signed by Sahel Maqbel Saeed. (Doc.8-1, pg. 11).
Additionally, notice of this action was posted on the official government internet site
www.forfeiture.gov for at least thirty (30) consecutive days, beginning March 16, 2013, and proof

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of publication was filed with the Court on May 1, 2013. (Doc. 7).
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Although the government has served Saleh Maqbel Saeed and the Shoe Farm with notice

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of these proceedings, the complaint indicates that there may be two others owners of the Shoe

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Farm that could have a potential claim to jerseys. Specifically, Sami Ali Muthana indicated that

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he and Saleh Maqbel Saeed and Muneer Muqbel Saeed were all equal owners in the Shoe Farm.

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The extent of Muneer Muqbel Saeed’s ownership was not clarified in the complaint. Pursuant to

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the Supplemental Rules for Admiralty Claims or Maritime Claims and Asset Forfeiture, the

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government must send notice of the action and a copy of the complaint to any person who
reasonably appears to be a potential claimant on the facts known to the government before the

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end of the time for filing a claim under Rule G(5)(a)(ii)(B). Fed. R. Civ. P. Supp. G (4)(b)(i).

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Here, the Shoe Farm was served but service was directed to Saleh Maqbel Saeed as the owner of

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the business. (Doc.8-1, pg. 11). Based on the information presented in the complaint, Sami Ali

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Muthana and Muneer Muqbel Saeed may be potential claimants, who were not properly served
with notice of the forfeiture proceedings. Because the United States seeks a final judgment of

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forfeiture as to all rights, title and interest in the jerseys, this Court will not grant default judgment

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until the ownership of the Shoe Farm, as well as the potential interests of Sami Ali Muthana and

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Muneer Muqbel Saeed are more clearly explained, or until these two parties are properly served

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with notice of these proceedings.

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CONCLUSION
Based on the above, the government’s Ex Parte Motion for Default Judgment and Final

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Judgment of Forfeiture is DENIED without prejudice. No later than April 30, 2014, the United
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States shall file an Amended Motion for Default Judgment that includes a proof of service of the

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required doucments on the above individuals, or alternatively, submit evidence that neither of

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these individuals have an ownership interest in the Shoe Farm or the defendant jerseys. Failure to

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file the amended motion as ordered may result in dismissal of this action for a failure to
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prosecute.

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IT IS SO ORDERED.

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Dated:

January 24, 2014

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

DEAC_Signature-END:

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