United States of America v. Mask of Ka-Nefer-Nefer
Filing
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OPINION MEMORANDUM AND ORDER IT IS HEREBY ORDERED that claimants motion to dismiss the verified complaint [Doc. #11] is GRANTED.A separate Order of Dismissal shall accompany this Memorandum and Order. Signed by Honorable Henry E. Autrey on 3/31/12. (CLA)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
THE UNITED STATES OF AMERICA, )
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Plaintiff,
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v.
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MASK OF KA-NEFER-NEFER,
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Defendant.
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No. 4:11CV504 HEA
OPINION, MEMORANDUM AND ORDER
The United States of America (“the Government”) brings this action pursuant
to 19 U.S.C. § 1595a, seeking forfeiture of all right, title, and interest in an Egyptian
artifact known as the Mask of Ka-Nefer-Nefer (“the Mask”), currently located in
Gallery 130 of the St. Louis Art Museum (“the Museum”), the only claimant in this
action. The Museum has filed a motion to dismiss the Government’s civil forfeiture
complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) and the Supplemental
Rules for Admiralty or Maritime Claims and Asset Forfeiture Actions (“the
Supplemental Rules”). For the reasons set forth below, claimant’s motion will be
granted.
Background
In its verified complaint, the Government boldly states that it seeks the
forfeiture of all rights, title and interest in a 3,200 year old Egyptian Mask because
“the circumstances” indicate it was stolen property at the time it was imported into
the United States. To support its legal conclusion that the Mask was stolen, the
Government alleges that the Mask was excavated at Saqqara, Eqypt, in 1952, placed
in storage in Saqqara following its excavation where it remained until 1959, and then
was “packed for shipping” to Cairo, Egypt, in preparation for an exhibit in Tokyo,
Japan. The complaint further states that the Mask was “received by police guards” in
Cairo in July of 1959, but instead of traveling to Tokyo, it remained in Cairo until
1962 when it was transferred back to Saqqara.
The verified complaint further states that the Mask was removed from Saqqara
in 1966 and “traveled” to Cairo in “box number fifty-four,” the “last documented
location of the Mask in Egypt.” The complaint then goes on to state that in 1973, an
inventory was taken of box number fifty-four, whereupon it was discovered the Mask
was “missing.” The complaint states, “The register did not document that the Mask
was sold or given to a private party during the time frame of 1966 to 1973.”
Claimant, the Museum, asserts that the Government’s verified complaint is
subject to dismissal because it fails to state a claim pursuant to Fed.R.Civ.P. 12(b)(6)
and Federal Rule of Civil Procedure Supplemental Rule G(8)(b). Claimant
additionally argues that the complaint is time-barred by the applicable statute of
limitations and the equitable doctrine of laches. The Government opposes claimant’s
arguments for dismissal.
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Legal Standard
Pleading requirements in a civil forfeiture action are governed by the
Supplemental Rules. Supplemental Rule E(2)(a) requires that the Government set
forth its claims in the complaint “with such particularity that the defendant or
claimant will be able, without moving for a more definite statement, to commence an
investigation of the facts and to frame a responsive pleading.” Supplemental Rule
G(2)(f) requires that the Government “state sufficiently detailed facts to support a
reasonable belief that the government will be able to meet its burden of proof at
trial.” Accordingly, the Government’s verified complaint must “assert specific facts
supporting an inference that the property is subject to forfeiture.” United States v.
All Funds on Deposit in Dime Savings Bank of Williamsburg Account No.
58-400738-1 in the Name of Ishar Abdi and Barbar Abdi (“Dime Savings”), 255
F.Supp.2d 56, 66-67 (E.D.N.Y.2003) (quotation marks omitted). Accord United
States v. Approximately $25,829,681.80 in Funds, plus Interest, in Court Registry
Investment Sys., No. 98 Civ. 2682, 1999 WL 1080370, at *7 (S.D.N.Y. Nov. 30,
1999) (citing United States v. All Right, Title & Interest in Real Property &
Appurtenances Known as 288-290 N. St., Middletown, New York, 743 F.Supp.
1068, 1074 (S.D.N.Y.1990); United States v. All Right, Title & Interest in Real
Property & a Bldg. Known as 16 Clinton St., New York, New York, 730 F.Supp.
1265, 1267 (S.D.N.Y.1990)). However, the Government is not required to allege in
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the complaint all of the facts and evidence at its disposal. It is sufficient for the
Government to simply plead enough facts for the claimant to understand the theory
of forfeiture, to file a responsive pleading, and to undertake an adequate
investigation. See Dime Savings, 255 F.Supp.2d at 69. Accord United States v.
$109,086.00, No. Civ.A.H-04-3727, 2005 WL 1923613, at *5 (S. D. Tex. Aug. 10,
2005 (holding that the Government need not set out the evidence of its allegations in
its complaint or plead every fact at its disposal).
The Federal Rules of Civil Procedure apply to forfeiture actions so long as
they are not “inconsistent with” the Supplemental Rules. Fed.R.Civ.P.Supp.R.A(2).
Accord United States v. $8,221,877.16 in U.S. Currency, 330 F.3d 141, 149 (3d Cir.
2003). See also, Fed.R.Civ.P.Supp.R.G. Advisory Comm. Note (“The Civil Rules
continue to provide the procedural framework within which Rule G and the other
Supplemental Rules operate.”). The pleading requirements provided by the
Supplemental Rules have traditionally been considered “more stringent than the
general pleading requirements . . . [,] an implicit accommodation to the drastic nature
of the civil forfeiture remedy.” United States v. $15,270,885.69, No. 99 Civ. 10255,
2000 WL 1234593, *at *2-3 (S.D.N.Y. Aug. 31, 2000) (quoting United States v.
Daccarett, 6 F.3d 37, 47 (2d Cir. 1993)). However, the Supreme Court's recent
landmark decisions in Bell Atlantic Corporation v. Twombly, 550 U.S. 544 (2007),
and Ashcroft v. Iqbal, 556 U.S. 662 (2009), have arguably shifted general pleading
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standards to a more heightened form of pleading, requiring that allegations in a
complaint meet a standard of “plausibility” to survive a motion to dismiss. It is not
entirely clear whether the “plausibility” standards enunciated in Iqbal apply to civil
forfeiture cases, given that Iqbal was based on an interpretation of Federal Rule of
Civil Procedure 8(a), and the Supplemental Rules expressly state that Supplemental
Rule G(2) governs the sufficiency of civil forfeiture complaints. Given the fairly
stringent pleading standards enunciated in the Supplemental Rules for civil forfeiture
actions, the Court will not concern itself with application of the plausibility standards
to civil forfeiture actions at this time.
Discussion
The Government bases its claim for forfeiture on Section 1595a of Title 19.
Section 1595a(c) provides in relevant part:
Merchandise which is introduced or attempted to be introduced into the
United States as contrary to law shall be treated as follows: (1) the
merchandise shall be seized and forfeited if it – (A) is stolen, smuggled,
or clandestinely imported or introduced.
In order to exercise the seizure and forfeiture of the Mask, the statute requires
pleading the following: (1) facts relevant to whether the Mask was “stolen, smuggled
or clandestinely imported or introduced” and (2) facts related to some predicate
unlawful offense, presumably a law with some “nexus” to international commerce
from which the Title 19 customs regulation arises. See, e.g., U.S. v. Davis, 648 F.3d
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84 (2d Cir. 2011) (“contrary to law” means “the government may seize and forfeit
merchandise introduced in the [USA] illegally, unlawfully, or in a manner conflicting
with established law. . .”). The Government’s verified complaint lacks both of these
pleading prerequisites. Indeed, the verified complaint fails to state sufficiently
detailed facts to support a reasonable belief that the government will be able to meet
its burden of proof at trial. See Fed.R.Civ.P.Supp.G(2)(f).
The verified complaint does not provide a factual statement of theft,
smuggling, or clandestine importation. Rather, the complaint merely states that the
Mask was found to be “missing” from Egypt in 1973. Although the Government
alleges, in a conclusory fashion, that “the register did not document that the Mask
was sold or given to a private party during the time frame of 1966 to 1973,” the
complaint is completely devoid of any facts showing that the Mask was “missing”
because it was stolen and then smuggled out of the country. The closest the
Government comes to any type of allegation of theft or smuggling is in paragraphs
19 and 20 of the complaint, which note that in 2006 “the Egyptian Supreme Council
of Antiquities became aware that the Mask was accessioned by the Saint Louis Art
Museum . . . and [t]o date, the Saint Louis Art Museum has refused to return the
Mask.” The Government’s legal conclusion, in paragraph 22 of the verified
complaint, that “[b]ecause the Mask was stolen, it could not have been lawfully
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exported from Egypt or lawfully imported into the United States,” misses a number
of factual and logical steps, namely: (1) an assertion that the Mask was actually
stolen; (2) factual circumstances relating to when the Government believes the Mask
was stolen and why; (3) facts relating to the location from which the Mask was
stolen; (4) facts regarding who the Government believes stole the Mask; and (5) a
statement or identification of the law which the Government believes applies under
which the Mask would be considered stolen and/or illegally exported.
The Government cannot simply rest on its laurels and believe that it can
initiate a civil forfeiture proceeding on the basis of one bold assertion that because
something went missing from one party in 1973 and turned up with another party in
1998, it was therefore stolen and/or imported or exported illegally. The Government
is required under the pleading standards set forth in the Federal Rules of Civil
Procedure to provide specific facts, or plead “with such particularity,” that the
claimant will be able, without moving for a more definite statement, to commence an
investigation of the facts and to frame a responsive pleading.
Fed.R.Civ.P.Supp.E(2)(a). As it now stands, claimant cannot even be sure of the
who, what, when or where of the alleged events surrounding the alleged “stealing,”
nor can the Museum ascertain if the Government is pursuing seizure of the Mask
based on an alleged theft or a unlawful import/export, or both. (The Court presumes
that the Government is not accusing any unnamed parties of clandestinely smuggling
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the Mask out of Egypt and into the United States; however, given the lack of
specificity in the verified complaint, perhaps the Court should not make any
assumptions on the Government’s behalf.)
Additionally, as noted previously, the Government has been completely remiss
in addressing the law under which the Mask would be considered stolen. The phrase
“contrary to law” under § 1595a refers to how merchandise, such as the Mask, is
introduced in the United States illegally, unlawfully, or in a manner conflicting with
established law. The Government has completely failed to identify, in its verified
complaint, the established law that was violated when the Mask was purportedly
brought illegally into the United States or purportedly stolen from Egypt or some
other undisclosed party, and it has failed to provide any facts relating to the time
period surrounding these supposed events. Thus, the Government's verified
complaint fails to assert specific facts supporting an inference that the Mask is
subject to forfeiture.
Given that the Court has already determined that the verified complaint is
subject to dismissal under the relevant pleading standards, the Court need not address
the Museum’s arguments concerning its affirmative defenses to the Government’s
seizure attempts. The Court notes, however, that because these arguments refer to
factually intensive matters that cannot be decided without looking outside the
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pleadings, they are better suited for consideration under Federal Rule of Civil
Procedure 56.
Accordingly,
IT IS HEREBY ORDERED that claimant’s motion to dismiss the verified
complaint [Doc. #11] is GRANTED.
A separate Order of Dismissal shall accompany this Memorandum and Order.
Dated this 31st day of March, 2012.
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE
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