DASTMALCHIAN v. DEPARTMENT OF JUSTICE et al

Filing 17

MEMORANDUM AND OPINION. Signed by Judge Ellen S. Huvelle on October 20, 2014. (AG)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_________________________________________
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SHABNAM DASTMALCHIAN,
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)
Plaintiff,
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v.
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)
DEPARTMENT OF JUSTICE, et al.,
)
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Defendants.
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_________________________________________ )

Civil Action No. 14-0594 (ESH)

MEMORANDUM OPINION
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. Civ. 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, 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
1

Fed. R. Civ. P. 32.2(b)(2)(A) provides:
If the court finds that property is subject to forfeiture, it must promptly enter a
preliminary order of forfeiture setting forth the amount of any money judgment,
directing the forfeiture of specific property, and directing the forfeiture of any
substitute property if the government has met the statutory criteria. The court
must enter the order without regard to any third party’s interest in the property.
Determining whether a third party has such an interest must be deferred until any
third party files a claim in an ancillary proceeding under Rule 32.2(c).

2

Fed. R. Civ. P. 32.2(c)(1) provides:
If, as prescribed by statute, a third party files a petition asserting an interest in the
property to be forfeited, the court must conduct an ancillary proceeding, but no
ancillary proceeding is required to the extent that the forfeiture consists of a
money judgment.

3

21 U.S.C.A. § 853(n)(2) provides:
Any person, other than the defendant, asserting a legal interest in property which
has been ordered forfeited to the United States pursuant to this section may,
within thirty days of the final publication of notice or his receipt of notice under
paragraph (1), whichever is earlier, petition the court for a hearing to adjudicate
the validity of his alleged interest in the property. The hearing shall be held before
the court alone, without a jury.
2

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
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Marshal in the Central District of California, United States District Judge George Wu, the
presiding 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 (1971), 42 U.S.C. § 1985(3), and the Federal Tort Claims Act (“FTCA”), 18 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
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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 conviction” (Am Compl. ¶ 4); and that the Senate Judiciary
Committee violated plaintiff’s rights by its “approval of a judge who does not have regard for the
U.S. Constitution and separation of powers.” (Am. Compl. ¶ 5.) Plaintiff claims to be seeking
both injunctive relief and damages.
Defendants have filed a motion to dismiss for lack of subject matter jurisdiction, Fed. R.
Civ. P. 12(b)(1), improper venue, Fed. R. Civ. P. 12(b)(3), and failure to state a claim, Fed. R.
Civ. P. 12(b)(6).
ANALYSIS
Read liberally,4 the complaint appears to include the following claims: (1) a Fifth
Amendment claim against each of the named defendants except the Senate Judiciary Committee;
(2) a Bivens claim for damages against each individual defendant based on the alleged Fifth
Amendment violation5; (3) a § 1985(3) claim against the DOJ, USMS, Wu, Tait and Moseley
based on an alleged conspiracy to violate plaintiff’s Fifth Amendment rights; (4) an FTCA claim
for damages based on the allegedly tortious acts of Tait and Moseley; and (5) an unspecified
constitutional claim against the Senate Judiciary Committee for its approval of Judge Wu during
the nomination process.
4

The pleadings of pro se litigants are to be “liberally construed, and a pro se complaint, however
inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by
lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007).
5

In Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971),
the Supreme Court held that an individual could sue a federal officer, in his individual capacity,
for money damages for constitutional violations.
5

With the exception of the claim against the Senate Judiciary Committee, all of plaintiff’s
claims are based on actions that took place in the Central District of California in conjunction
with the entry and enforcement of the forfeiture order in plaintiff’s husband’s criminal case and
all of the individual defendants reside in the Central District of California. Accordingly, the only
proper venue for plaintiff’s Bivens and FTCA claims is the Central District of California. See
Lamont v. Haig, 590 F.2d 1124, 1135 (D. C. Cir. 1978) (venue must be established as to each
cause of action). Venue for a Bivens claim is governed by the general venue rule, 28 U.S.C. §
1391(b). See Gonzalez v. Holder, 763 F. Supp. 2d 145, 152-53 (D.D.C. 2011). Under 28 U.S.C.
§ 1391(b), a civil action may be brought in
(1) a judicial district in which any defendant resides, if all defendants are residents
of the State in which the district is located;
(2) a judicial district in which a substantial part of the events or omissions giving
rise to the claim occurred, or a substantial part of property that is the subject of
the action is situated; or
(3) if there is no district in which an action may otherwise be brought as provided
in this section, any judicial district in which any defendant is subject to the court’s
personal jurisdiction with respect to such action.
In the present case, only subsection (2) would apply, making the proper venue for plaintiff’s
Bivens claims the Central District of California. Similarly, plaintiff’s FTCA claim must be
brought in “the judicial district where the plaintiff resides or wherein the act or omission
complained of occurred,” 28 U.S.C. § 1402, making the Central District of California again the
only proper venue. Where venue is improper, the district court “shall dismiss, or if it be in the
interest of justice, transfer such case to any district or division in which it could have been
brought.” 28 U.S.C. § 1406(a). Transfer is the preferred option, so the Court will transfer
plaintiff’s Bivens and FTCA claims to the Central District of California.

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As for plaintiff’s § 1985(3) claim and Fifth Amendment claims, venue is governed by 28
U.S.C. § 1391(e)(1), which provides:
A civil action in which a defendant is an officer or employee of the United States
or any agency thereof acting in his official capacity or under color of legal
authority, or an agency of the United States, or the United States, may, except as
otherwise provided by law, be brought in any judicial district in which (A) a
defendant in the action resides, (B) a substantial part of the events or omissions
giving rise to the claim occurred, or a substantial part of property that is the
subject of the action is situated, or (C) the plaintiff resides if no real property is
involved in the action.
As the DOJ and the USMS reside in the District of Columbia, venue is not improper for these
claims. See Galindo v. Gonzales, 550 F. Supp. 2d 115, 116-17 (D.D.C. 2008) (naming Bureau of
Prisons as defendant renders venue in the District proper under § 1391(e)). However, the
“propriety of venue in the District of Columbia . . . . does not resolve the matter since ‘[f]or the
convenience of parties and witnesses, in the interest of justice, a district court may transfer any
civil action to any other district or division where it might have been brought.’” Galindo, 550 F.
Supp. at 116 n.2 (quoting 28 U.S.C. § 1404(a)). The District of Columbia is not the only proper
venue for plaintiff’s § 1985(3) and Fifth Amendment claims; venue is also proper in the Central
District of California where “a substantial part of the events or omissions giving rise to the claim
occurred, or a substantial part of property that is the subject of the action is situated.” 28 U.S.C.
§ 1391(e). The Central District of California is also the more appropriate forum given that
plaintiff’s Bivens and FTCA claims, which arise out of the same events, must proceed there.
Accordingly, the Court will transfer plaintiff’s § 1985(3) and FTCA claims to the Central
District of California.
What remains is plaintiff’s unspecified constitutional claim against the Senate Judiciary
Committee based on the Committee’s approval of District Judge Wu during the confirmation
process. Unlike plaintiff’s other claims, the events giving rise to this claim took place in the
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District of Columbia and the only defendant resides in the District of Columbia. Thus, the
District of Columbia, not the Central District of California, is the proper venue for this claim.
The Court will, however, dismiss this claim for lack of subject matter jurisdiction as plaintiff
lacks standing to object to the confirmation process. In the alternative, even if plaintiff had
standing, the claim would be dismissed because the Committee has absolute legislative immunity
for the challenged action. See Chastain v. Sundquist, 833 F.2d 311, 314 (D.C. Cir. 1987)
(constitutional immunity provided by “the Speech or Debate Clause protects all lawmaking
activities undertaken in the House and Senate,” including “actions taken in committee hearings,
proceedings, and reports, or by vote, even though not always literally ‘words spoken in debate’”
(quoting Kilbourn v. Thompson, 103 U.S. (13 Otto) 168, 204, (1880)). The Senate Judiciary
Committee’s allegedly unconstitutional decision to approve Judge Wu clearly falls within the
parameters of this immunity
CONCLUSION
For the reasons stated above, the Court will dismiss plaintiff’s claim against the Senate
Judiciary Committee and transfer the remaining claims to the Central District of California. A
separate Order accompanies this Memorandum Opinion.

/s/ Ellen Segal Huvelle
ELLEN SEGAL HUVELLE
United States District Judge
Date: October 20, 2014

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