SOUROVELIS et al v. CITY OF PHILADELPHIA et al

Filing 202

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 03/30/2017. 03/30/2017 ENTERED AND COPIES E-MAILED.(nds)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
CHRISTOS SOUROVELIS, et al.,
Plaintiffs,
v.
CITY OF PHILADELPHIA, et al.,
Defendants.

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CIVIL ACTION
NO. 14-4687

M E M O R A N D U M
EDUARDO C. ROBRENO, J.

March 30, 2017

Table of Contents
I.

INTRODUCTION............................................ 2

II.

FACTUAL BACKGROUND...................................... 4
A.

Civil Forfeiture Procedures Prior to October 2015.. 7

B.

Defendants’ Interim Measures....................... 9

C.

Civil Forfeiture Procedures Adopted in 2016....... 10

III. PROCEDURAL HISTORY..................................... 11
IV.

LEGAL STANDARDS........................................ 14
A.
B.

V.

Rule 12(b)(1)..................................... 14
Rule 12(b)(6)..................................... 16

THE FJD DEFENDANTS’ MOTION TO DISMISS ................. 17
A.

Rule 12(b)(1)..................................... 18
1.

Standing, Mootness, and Ripeness............. 19
a.

Challenge to Prior Procedures........... 22

b.
2.
B.

Challenge to Current Procedures......... 27

Federalism and Comity........................ 30

Rule 12(b)(6)..................................... 32
1.

Count Three.................................. 34

2.

Count Seven.................................. 38
a.
b.

VI.

Use of Criminal Procedures.............. 40

c.
3.

Adjudication............................ 38

Adequate Notice......................... 41

Proper Defendants............................ 42

THE CITY DEFENDANTS’ MOTION TO DISMISS................. 43

VII. CONCLUSION............................................. 47
I.

INTRODUCTION
Plaintiffs filed this putative class action on August

11, 2014, challenging Philadelphia’s civil forfeiture policies
and practices.

Plaintiffs originally filed six claims under 42

U.S.C. § 1983 against the City of Philadelphia, the Mayor, and
the Police Commissioner (the “City Defendants”); and the
Philadelphia District Attorney and D.A.’s Office (the “D.A.
Defendants”).

After all of Plaintiffs’ claims survived a motion

to dismiss and the parties settled Counts One and Two,
Plaintiffs filed a Second Amended Complaint, adding four state
court administrators as defendants and adding a seventh claim.
The new defendants - the Honorable Sheila A. Woods-Skipper, in
her official capacity as Chair of the Administrative Governing
2

Board of the First Judicial District of Pennsylvania (the
“FJD”); the Honorable Jacqueline F. Allen, in her official
capacity as a member of the Administrative Governing Board of
the FJD; Joseph H. Evers, in his official capacity as Court
Administrator of the FJD; and Charles A. Mapp, in his official
capacity as Chief Deputy Court Administrator of the FJD (the
“FJD Defendants”) – have moved to dismiss all of the claims
against them (Counts Three, Four, Six, and Seven).

The City

Defendants have moved to dismiss Counts Four and Six against
them.

Plaintiffs oppose both motions.

to address the FJD Defendants’ motion.1

The Court held a hearing
As the City Defendants

had previously moved to dismiss the same claims against them
that are the subject of their instant motion, the Court
determined to consider the City’s motion on submission without a
hearing.
For the reasons that follow, the Court will deny both
the FJD Defendants’ motion to dismiss and the City Defendants’
motion to dismiss.

1

At the hearing, the Court also considered the parties’
joint report, pursuant to Federal Rule of Civil Procedure 26(f),
as to Count Five. The Court subsequently entered a scheduling
order as to Count Five. See ECF No. 195.
3

II.

FACTUAL BACKGROUND
In their Second Amended Complaint, Plaintiffs allege

the following facts, which are presumed to be true for the
purposes of the instant motions to dismiss.
Civil forfeiture statutes permit states and the
federal government to file actions, under certain circumstances,
to obtain ownership of private real and personal property that
is related to certain categories of criminal activity.

In

Pennsylvania, the Controlled Substances Forfeiture Act, 42 Pa.
Cons. Stat. Ann. §§ 6801 and 6802 (the “CSFA”), provides that
certain real and personal property that is connected to a
violation of Pennsylvania’s Controlled Substance, Drug, Device
and Cosmetic Act, 35 Pa. Cons. Stat. Ann. §§ 780-101 to 780-144,
is subject to forfeiture by the Commonwealth of Pennsylvania.
42 Pa. Cons. Stat. Ann. § 6801.

The CSFA sets forth the

property that is subject to forfeiture by the Commonwealth, see
id., and provides a procedure for the forfeiture proceedings,
which must be filed in the court of common pleas of the judicial
district where the property is located, see id. § 6802.
Plaintiffs’ claims in this action relate to property
forfeited through civil forfeiture proceedings brought by the
D.A.’s Office in the Court of Common Pleas of Philadelphia
County.

The majority of the property, Plaintiffs allege, was

4

forfeited pursuant to the CSFA.2

Second Am. Compl. ¶ 41

[hereinafter SAC], ECF No. 157.

According to Plaintiffs,

Philadelphia’s civil forfeiture program is one of the largest
municipal forfeiture programs in the country, and “unprecedented
in scale.”

Id. at 14, ¶ 54. Plaintiffs allege that the D.A.’s

Office forfeited over $90 million worth of property from 1987 to
2012 through civil forfeiture proceedings, id. ¶ 53, yielding an
average of $5.6 million in forfeiture revenue each year, id.
¶ 54.

Forfeiture data Plaintiffs obtained from the Pennsylvania

Office of the Attorney General indicates that the D.A.’s Office
collected over $72.6 million in forfeiture revenue from fiscal
years 2002 through 2014.

Id. ¶ 57.

Plaintiffs allege that this

amount constitutes nearly one-fifth of the general budget of the
D.A.’s Office as appropriated by the City of Philadelphia.

Id.

¶ 60.
Plaintiffs allege that the City and D.A. Defendants
seize large quantities of personal property for forfeiture,
including cash, cell phones, clothing, jewelry, prescription
medication, and licensed firearms.

Id. ¶ 81.

Plaintiffs claim

that the majority of the cash seized involves small amounts of
money.

Id. ¶ 73.

For example, in 2010, Philadelphia filed

8,284 currency forfeiture petitions, with an average of $550 at
2

According to Plaintiffs, there are at least 29 other
Pennsylvania statutes authorizing civil forfeiture. See Pls.’
Notice of Suppl. Authority at 1, ECF No. 196.
5

issue in each case.

Id. ¶ 74.

Plaintiffs also allege that the

City and D.A. Defendants file civil forfeiture petitions on 300
to 500 real properties (mostly private residences) each year.
Id. ¶ 83.

Approximately 100 of these real properties are

forfeited and sold at auction annually; and a significant
majority of the remaining cases settle under threat of civil
forfeiture.

Id.

Plaintiffs allege that the City Defendants, the D.A.
Defendants, and the FJD Defendants had various roles in creating
and implementing Philadelphia’s civil forfeiture procedures.
Those procedures have changed over the course of this lawsuit in
response to the partial settlement of Plaintiffs’ claims and
negotiations among the parties in response to the remaining
claims.

As such, Plaintiffs’ Second Amended Complaint contains

allegations relating to three sets of procedures: (1) the civil
forfeiture procedures that existed at the time they filed this
action, which Plaintiffs allege were in place from approximately
January 2, 2007, through October 19, 2015 (“the Prior
Procedures”); (2) the civil forfeiture procedures in place from
October 19, 2015, through July 25, 2016, pursuant to interim
measures adopted by Defendants in response to the instant
lawsuit; and (3) the current civil forfeiture procedures, which
the First Judicial District adopted on July 25, 2016 (“the

6

Current Procedures”).

The relevant details of each of these

three sets of procedures are set forth below.
A.

Civil Forfeiture Procedures Prior to October 2015
Plaintiffs allege that, prior to January 2007, the

court administrators of the First Judicial District,
predecessors of the FJD Defendants, assigned forfeiture matters
to a criminal court judge or criminal motions judge of the Court
of Common Pleas.

See SAC ¶¶ 114-19.

From 1999 to 2004, a

criminal court judge heard all forfeiture cases in a dedicated
courtroom in the Criminal Justice Center, with a complete court
staff, including a stenographer, a Clerk of Quarter Sessions,
and criminal listing support staff.

Id. ¶ 115.

At some point

between 2004 and 2007, a shortage of personnel resulted in no
Clerk of Quarter Sessions or stenographer in the forfeiture
courtroom.

Id. ¶ 122.

In January 2007, the FJD Defendants notified Assistant
District Attorneys that forfeiture and related proceedings would
be transferred to the Civil Court Division.

Id. ¶ 123.

Accordingly, the FJD Defendants transferred forfeiture
proceedings to Courtroom 478 in City Hall.

Id.

Courtroom 478

lacked a presiding judge or any officer with adjudicative
ability, and had no stenographer, court reporter, or Clerk of
Quarter Sessions.

Id. ¶ 124.

Instead, Assistant District

7

Attorneys with the Public Nuisance Task Force – the unit of the
D.A.’s Office that filed and litigated civil forfeiture
petitions – fully controlled the proceedings.

Id. ¶ 129.

Cases

involving personal property were frequently assigned to a
paralegal instead of a prosecutor.

Id. ¶ 130.

Under this procedure, upon the filing of a civil
forfeiture petition, property owners were required to appear in
Courtroom 478 at 9 a.m. to attempt to reclaim their property.
Id. ¶ 127.

If a property owner failed to appear, prosecutors

marked the case for default judgment without any determination,
judicial or otherwise, as to the reason the property owner did
not appear.

Id. ¶ 132.

If the property owner did appear, the

assigned prosecutor or paralegal would discuss the case with the
property owner, frequently advising the owner that he or she did
not need an attorney.

Id. ¶ 135.

Plaintiffs allege that

prosecutors and paralegals (1) routinely gave property owners a
set of over 50 pattern interrogatories, to be answered under
penalty of perjury; (2) compelled owners of real property to
execute agreements to unseal their residences on certain
conditions, including barring specific individuals from entering
indefinitely and waiving statutory and constitutional defenses;
and (3) relisted civil proceedings an average of five times
each, requiring property owners to appear each time or risk
default of their property.

See id. ¶¶ 136-41.
8

B.

Defendants’ Interim Measures
Plaintiffs filed this suit on August 11, 2014,

challenging the constitutionality of the above procedures.
Plaintiffs allege that on or about June 25, 2015, the FJD
Defendants met with the D.A.’s Office to discuss changes to the
administration of civil forfeiture proceedings.

Id. ¶ 143.

As

an interim measure, beginning on October 19, 2015, Court of
Common Pleas Trial Commissioners, who are not judges,3 began
presiding over all forfeiture and related proceedings in
Courtroom 478.

See id. ¶ 144.

These proceedings were recorded,

and the Trial Commissioners were assisted by courtroom clerks.
See id.

The Trial Commissioners began referring all disputed

matters to a criminal motions judge.

Id.

In January 2016, the

FJD Defendants moved civil forfeiture proceedings from Courtroom
478 to a criminal courtroom.

Id. ¶ 145.

Following a seizure of

property, property owners are served with civil forfeiture
petitions, which contain a date for a pretrial conference.
¶ 146.

Id.

Property owners are required to answer forfeiture

petitions within 30 days, often before the pretrial conference,
3

The website of the First Judicial District Municipal
Court, Civil Division, explains that Trial Commissioners are
“not judges but they do have the authority to handle all
requests that do not require . . . judicial determination.”
First Jud. Dist. of Pa., Mun. Ct., Civ. Div.,
http://www.courts.phila.gov/municipal/civil (last visited March
16, 2017). As Plaintiffs point out, the website specifically
states that “legal determination[s]” are “beyond” the “accepted
scope of responsibilities” for Trial Commissioners. Id.
9

at which the owners are informed of their rights.

Id. ¶ 147.

Forfeiture petitions are docketed as criminal matters unless the
property owner requests a jury trial.
C.

Id. ¶ 150.

Civil Forfeiture Procedures Adopted in 2016
Plaintiffs allege that on July 25, 2016, the FJD

Defendants posted General Court Regulation No. 2 of 2016 (the
“GCR”),4 entitled “Proceedings Seeking Civil Forfeiture of Real
Estate and Seized Property,” on the First Judicial District’s
website.

See id. ¶ 152.
Plaintiffs allege that the GCR is problematic because,

inter alia, it: (1) requires civil forfeiture petitions to be
administered by criminal judges applying criminal rules of
procedure; (2) implicates Fifth Amendment rights by requiring an
answer to be filed, with default judgment as a penalty, without
any notice that the answer may be used in related criminal
proceedings; (3) increases a risk of erroneous deprivation by
deferring an explanation of the forfeiture process until the
pretrial conference; (4) authorizes Trial Commissioners, who are
not judges, to perform adjudicative acts, such as deciding
whether a case presents any genuine issues of material facts or
whether property owners knowingly and voluntarily waive their
right to a jury trial; (5) fails to advise property owners of
4

The nature of this regulation and its source of
authority are discussed below. See infra at 25-26.
10

the burdens of proof they must meet; (6) fails to advise
property owners of their right to request a prompt postdeprivation hearing; and (7) does not clarify any of the
procedures that will apply in a post-deprivation hearing.

See

id. ¶ 154.
III. PROCEDURAL HISTORY
Plaintiffs initiated this action on August 11, 2014,
ECF No. 1, and amended their complaint on November 17, 2014, ECF
No. 40.

Plaintiffs filed a Second Amended Complaint on

September 15, 2016.

ECF No. 157.

Plaintiffs Sourovelis, Welch,

and Hernandez are the owners of real property against which the
D.A. Defendants commenced, under the CSFA, forfeitures that were
pending in the Court of Common Pleas of Philadelphia County at
the time the First Amended Complaint was filed.

SAC ¶¶ 9-17.

Plaintiff Geiger is the owner of personal property against which
the D.A. Defendants commenced a civil forfeiture proceeding.
Id. ¶¶ 18-22.

Plaintiffs’ Second Amended Complaint asserts the

following seven claims:
(1)

the City and D.A. Defendants’ policy and practice
of failing to provide notice or a hearing before
seizing real property violates the Due Process
Clause of the Fourteenth Amendment (Count One);

(2)

the City and D.A. Defendants’ policy and practice
of requiring real property owners to waive their
constitutional and statutory rights in order to
obtain access to their property or have the
forfeiture petition withdrawn violates the Due
11

Process Clause of the Fourteenth Amendment (Count
Two);
(3)

Defendants’ policy and practice of failing to
provide a prompt, post-deprivation hearing
violates the Due Process Clause of the Fourteenth
Amendment (Count Three);

(4)

Defendants’ policy and practice of repeatedly
“relisting” forfeiture proceedings violates the
Due Process Clause of the Fourteenth Amendment
(Count Four);

(5)

the City and D.A. Defendants’ retention of
forfeited property and its proceeds violates the
Due Process Clause of the Fourteenth Amendment
(Count Five);

(6)

Defendants’ policy and practice of prosecutors
controlling forfeiture hearings violates the Due
Process Clause of the Fourteenth Amendment (Count
Six);

(7)

Defendants’ administration of civil forfeiture
and related proceedings, including notices to
property owners, the timing of filings, and
access to court hearings, violates the Due
Process Clause of the Fourteenth Amendment (Count
Seven).

Id. ¶¶ 290-360.

The instant motions to dismiss relate to Counts

Three, Four, Six, and Seven.
On March 16, 2015, Defendants filed a joint motion to
dismiss Plaintiffs’ claims.
motion on May 28, 2015.

ECF No. 52.

The Court denied the

ECF Nos. 66, 67.

Defendants

subsequently sought reconsideration of the Court’s order, which
the Court denied on September 7, 2016.

12

ECF No. 150.

The parties settled Counts One and Two in an agreement
the Court approved on November 4, 2015.5

ECF No. 104.

On August

1, 2016, Plaintiffs filed a motion seeking to (1) join the FJD
Defendants with respect to Counts Three, Four, and Six; (2) file
a Second Amended Complaint adding a Seventh Claim and other new
allegations; and (3) sever Count Five.

ECF No. 139.

granted the motion on September 14, 2016.6

The Court

ECF No. 155.

On September 15, 2016, Plaintiffs filed the Second
Amended Complaint, which (1) substituted current Mayor of
Philadelphia James F. Kenney for former Mayor Michael A. Nutter;
(2) substituted current Philadelphia Police Department
Commissioner Richard Ross, Jr., for former Commissioner Charles

5

The agreement, in essence, (1) prohibited the City
Defendants and D.A. Defendants from seeking any ex parte “seize
and seal” order against real property under the CSFA unless
certain specific criteria are met; (2) required the D.A.
Defendants to move to vacate any ex parte “seize and seal” order
presently in effect using model forms agreed upon by the
parties; (3) required the D.A. Defendants to provide notice to
civil forfeiture respondents who have entered into an unsealing
agreement or settlement agreement – all of which are now void
and unenforceable – that the conditions of those agreements no
longer applied; and (4) required the D.A. Defendants to produce
certain documents to Plaintiffs regarding “seize and seal”
applications filed in civil forfeiture cases. See ECF No. 104.
6

Pursuant to the Court’s September 14, 2016, order,
Count Five (the conflict of interest claim) is now severed from
the claims at issue in the instant motions: Counts Three, Four,
Six, and Seven.
13

H. Ramsey; (3) added the FJD Defendants; and (4) added Count
Seven.7

ECF No. 157.
In response to the Second Amended Complaint, the City

Defendants filed a motion to dismiss Counts Four and Six of the
Second Amended Complaint, ECF No. 158, the D.A. Defendants filed
an answer, ECF No. 161, and the FJD Defendants moved to dismiss
all claims against them, ECF No. 173.

Plaintiffs have opposed

both the City Defendants’ motion to dismiss, ECF No. 165, and
the FJD Defendants’ motion to dismiss, ECF No. 175.

The City

Defendants filed a motion for leave to file a reply brief on
October 5, 2016.

ECF No. 166.

The FJD Defendants filed a

motion for leave to file a reply brief on February 1, 2017.
No. 180.

ECF

Plaintiffs filed a motion for leave to file a sur-

reply brief in opposition to the FJD Defendants’ motion to
dismiss on February 14, 2017.

ECF No. 186.

The Court held a hearing, and is now ready to rule on
both motions to dismiss.
IV.

LEGAL STANDARDS
A.

Rule 12(b)(1)
A party may move to dismiss a complaint for lack of

subject matter jurisdiction.

Fed. R. Civ. P. 12(b)(1).

7

The

The City, Mayor Kenney, and Commissioner Ross are
referred to herein as the “City Defendants.” The District
Attorney’s Office and District Attorney Williams are referred to
herein as the “D.A. Defendants.”
14

Court’s method of review is determined by whether the Rule
12(b)(1) motion presents a “facial” or “factual” attack on the
claim at issue.

Constitution Party of Pa. v. Aichele, 757 F.3d

347, 357 (3d Cir. 2014).

A facial attack “contests the

sufficiency of the pleadings,” In re Schering-Plough Corp., 678
F.3d 235, 243 (3d Cir. 2012), “whereas a factual attack concerns
the actual failure of [a plaintiff’s] claims to comport
[factually] with the jurisdictional prerequisites,” CNA v.
United States, 535 F.3d 132, 139 (3d Cir. 2008) (alterations in
original) (quoting U.S. ex rel. Atkinson v. Pa. Shipbuilding
Co., 473 F.3d 506, 514 (3d Cir. 2007)).
“In reviewing a facial attack, the court must only
consider the allegations of the complaint and documents
referenced therein and attached thereto, in the light most
favorable to the plaintiff.”

Gould Elecs. Inc. v. United

States, 220 F.3d 169, 176 (3d Cir. 2000).

“Thus, a facial

attack calls for a district court to apply the same standard of
review it would use in considering a motion to dismiss under
Rule 12(b)(6), i.e., construing the alleged facts in favor of
the nonmoving party.”

Aichele, 757 F.3d at 358.

By contrast, “[i]n reviewing a factual attack, the
court may consider evidence outside the pleadings.”
Elecs., 220 F.3d at 176.

Gould

A factual attack places the burden of

proof on plaintiff to show “that jurisdiction does in fact
15

exist.”

Mortensen v. First Fed. Sav. & Loan Ass’n, 549 F.2d

884, 891 (3d Cir. 1977).

Accordingly, “no presumptive

truthfulness attaches to plaintiff's allegations, and the
existence of disputed material facts will not preclude the trial
court from evaluating for itself the merits of jurisdictional
claims.”
B.

Id.8
Rule 12(b)(6)
A party may move to dismiss a complaint for failure to

state a claim upon which relief can be granted.
12(b)(6).

Fed. R. Civ. P.

When considering such a motion, the Court must

“accept as true all allegations in the complaint and all
reasonable inferences that can be drawn therefrom, and view them
in the light most favorable to the non-moving party.”
DeBenedictis v. Merrill Lynch & Co., 492 F.3d 209, 215 (3d Cir.
2007) (quoting Rocks v. City of Phila., 868 F.2d 644, 645 (3d
Cir. 1989)).

To withstand a motion to dismiss, the complaint’s

“[f]actual allegations must be enough to raise a right to relief
above the speculative level.”
U.S. 544, 555 (2007).

Bell Atl. Corp. v. Twombly, 550

This “requires more than labels and

conclusions, and a formulaic recitation of the elements of a
cause of action will not do.” Id.

8

Although a plaintiff is

As discussed below, the FJD Defendants’ motion to
dismiss Plaintiffs’ Second Amended Complaint pursuant to Rule
12(b)(1) is a facial attack. See infra 18-19.
16

entitled to all reasonable inferences from the facts alleged, a
plaintiff’s legal conclusions are not entitled to deference and
the Court is “not bound to accept as true a legal conclusion
couched as a factual allegation.”

Papasan v. Allain, 478 U.S.

265, 286 (1986).
The pleadings must contain sufficient factual
allegations so as to state a facially plausible claim for
relief.

See, e.g., Gelman v. State Farm Mut. Auto. Ins. Co.,

583 F.3d 187, 190 (3d Cir. 2009).

“A claim has facial

plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).

Id. (quoting

In deciding a

Rule 12(b)(6) motion, the Court limits its inquiry to the facts
alleged in the complaint and its attachments, matters of public
record, and undisputedly authentic documents if the
complainant’s claims are based upon these documents.

See Jordan

v. Fox, Rothschild, O’Brien & Frankel, 20 F.3d 1250, 1261 (3d
Cir. 1994); Pension Benefit Guar. Corp. v. White Consol. Indus.,
Inc., 998 F.2d 1192, 1196 (3d Cir. 1993).
V.

THE FJD DEFENDANTS’ MOTION TO DISMISS
The FJD Defendants move to dismiss all four claims

against them pursuant to Rules 12(b)(1) and 12(b)(6).

17

See ECF

No. 173.

The FJD Defendants argue that (1) Plaintiffs lack

standing to challenge the FJD’s civil forfeiture procedures
because they cannot allege a real and imminent threat of future
injury; (2) Plaintiffs’ claims regarding the new civil
forfeiture procedures are not ripe because there are no factual
allegations about how the FJD’s Current Procedures are applied;
(3) Plaintiff’s claims regarding the previous civil forfeiture
procedures are moot because the challenged procedures no longer
exist; (4) the FJD’s civil forfeiture procedures provide due
process; (5) federalism and comity principles bar this Court
from hearing Plaintiffs’ claims; and (6) the FJD Defendants are
not proper defendants for Plaintiffs’ claims that certain state
statutes are unconstitutional because the FJD did not enact and
does not enforce those statutes.

See FJD Defs.’ Mem. Law. Supp.

Mot. Dismiss [hereinafter “FJD Mem.”], ECF No. 173.
A.

Rule 12(b)(1)
The FJD Defendants move to dismiss all of the claims

against them under Rule 12(b)(1) on the basis that (1)
Plaintiffs lack standing; (2) Plaintiffs’ claims are not ripe;
(3) Plaintiffs’ claims are moot; and (4) principles of
federalism and comity prevent this Court from hearing
Plaintiffs’ claims.

See FJD Mem. at 10-19; 27-30.

18

Plaintiffs argue that the FJD Defendants’ motion
presents a facial, rather than factual, attack on Plaintiffs’
claims, because it contests the sufficiency of Plaintiffs’
pleadings.

See Pls.’ Opp. at 14-15, ECF No. 175.

The FJD

Defendants do not state whether they intend to make a facial or
factual attack, do not respond to Plaintiffs’ assertion that
their motion presents a facial attack, and do not contest any of
Plaintiffs’ alleged facts through declarations or documentary
evidence.

Accordingly, the Court will treat the FJD Defendants’

motion as a facial attack.

The Court will therefore consider

only the allegations of Plaintiffs’ Second Amended Complaint and
the documents referenced therein, and construe the alleged facts
in favor of Plaintiffs.
1.

See Gould Elecs., 220 F.3d at 176.

Standing, Mootness, and Ripeness

The FJD Defendants argue that Plaintiffs lack standing
to challenge the Current Procedures because Plaintiffs’ property
was subject to civil forfeiture under the Prior Procedures,
which are no longer in effect, and therefore they cannot allege
a future injury with respect to the Current Procedures.
Mem. at 10-14.

See FJD

The FJD Defendants also argue that, to the

extent Plaintiffs have standing to challenge the Current
Procedures, their claims are not ripe.

See id. at 14-17.

Finally, the FJD Defendants argue that Plaintiffs’ claims

19

regarding the Prior Procedures are moot because the procedures
Plaintiffs complain about are no longer in effect.

See id. at

17-19.
Plaintiffs respond that the FJD Defendants
fundamentally misunderstand their claims.

Plaintiffs contend

that they are not bringing separate challenges to the Prior
Procedures and the Current Procedures.

Rather, according to

Plaintiffs, they allege that Philadelphia’s civil forfeiture
procedures were, and still are, unconstitutional, and that the
changes the FJD Defendants have implemented have not rendered
the procedures constitutional.

Plaintiffs further argue that

this Court already determined that they had standing at the
outset of this litigation, and Plaintiffs’ claims have not
become moot during the litigation because (1) their claims are
inherently transitory, and (2) their anticipated classcertification motion will relate back to August 11, 2014, when
they filed the original complaint and motion for class
certification.

See Pls.’ Opp. at 16-21.

Article III of the United States Constitution limits
federal court jurisdiction to justiciable cases or
controversies.

In order for a federal court to hear a

plaintiff’s claim, the plaintiff must have standing, and the
claim must be both ripe and not moot.

Article III standing

requires (1) injury in fact, (2) causation, and (3)
20

redressability.
560 (1992).

See Lujan v. Defs. of Wildlife, 504 U.S. 555,

“The requirements for standing do not change in the

class action context.”

In re Horizon Healthcare Servs. Data

Breach Litig., 846 F.3d 625, 634 (3d Cir. 2017).

Accordingly,

“[n]amed plaintiffs who represent a class must allege and show
that they personally have been injured, not that injury has been
suffered by other, unidentified members of the class to which
they belong and which they purport to represent.”

Id. (quoting

Lewis v. Casey, 518 U.S. 343, 357 (1996)).
“The ripeness doctrine determines ‘whether a party has
brought an action prematurely, and counsels abstention until
such time as a dispute is sufficiently concrete to satisfy the
constitutional and prudential requirements of the doctrine.’”
Pittsburgh Mack Sales & Serv., Inc. v. Int'l Union of Operating
Eng'rs, Local Union No. 66, 580 F.3d 185, 190 (3d Cir. 2009)
(quoting Peachlum v. City of York, 333 F.3d 429, 433 (3d Cir.
2003)).
A plaintiff’s claim becomes moot “when ‘the issues
presented are no longer live or the parties lack a legally
cognizable interest in the outcome.’”

United Steel Paper &

Forestry Rubber Mfg. Allied Indus. & Serv. Workers, 842 F.3d
201, 208 (3d Cir. 2016) (quoting Cnty of Los Angeles v. Davis,
440 U.S. 625, 631 (1979)).

“The central question of all

mootness problems is whether changes in circumstances that
21

prevailed at the beginning of the litigation have forestalled
any occasion for meaningful relief.”

Id. (quoting Rendell v.

Rumsfeld, 484 F.3d 236, 240 (3d Cir. 2007)).
a.

Challenge to Prior Procedures

As Plaintiffs point out, this Court already determined
that Plaintiffs had standing to challenge Philadelphia’s civil
forfeiture procedures at the beginning of this litigation.

See

Sourovelis v. City of Phila., 103 F. Supp. 3d 694, 700-06 (E.D.
Pa. 2015).

Accordingly, Plaintiffs have standing to challenge

the civil forfeiture procedures that were in place when this
litigation was filed.

Further, this Court permitted Plaintiffs

to amend their complaint to assert claims against the FJD
Defendants for their part in creating the civil forfeiture
procedures in place prior to October 2015.
The FJD Defendants seek to distinguish the Court’s
prior ruling, claiming that the Court’s previous determination
that Plaintiffs have standing to challenge past civil forfeiture
is irrelevant, because “Plaintiffs’ requested relief against the
FJD is only forward-looking, injunctive relief.”
at 11.

This assertion is simply incorrect.

See FJD Mem.

Plaintiffs

challenge both the past practices that were in place at the time
they filed this litigation, as well as the interim measures and
Current Procedures that Defendants, including the FJD

22

Defendants, have enacted after the filing of this action.

In

the Second Amended Complaint, Plaintiffs seek many forms of
relief, including the retrospective relief of the return of
their property and a declaration that previous civil forfeiture
procedures were unconstitutional.9

See SAC at 70.

The FJD Defendants also argue that Plaintiffs
“concede” that the previous civil forfeiture procedures no
longer exist, and therefore that Plaintiffs’ claims regarding
those procedures are “futile.”

FJD Mem. at 18.

However, this

Court previously held that Plaintiffs had standing to challenge
past civil forfeiture procedures, even though the District
Attorney’s Office had already made changes to the Prior
Procedures by that time, because Plaintiffs have standing to
seek retrospective relief to remedy the alleged past deprivation
of their constitutional rights.

See Sourovelis, 103 F. Supp. 3d

at 702 (holding that Plaintiffs have standing to seek a
declaration that past, changed practices are unconstitutional
and violated due process); Houchins v. KQED, Inc., 438 U.S. 1,
25-26 (1978) (“[A] defendant’s corrective action . . . following
commencement of suit does not deprive the court of power to
decide whether the previous course of conduct was unlawful.”).
9

As a result, the cases the FJD Defendants cite, in
which courts have held that plaintiffs solely seeking
prospective injunctive relief must allege a future injury, do
not establish that Plaintiffs here lack standing to challenge
the Prior Procedures. See FJD Mem. at 11-13.
23

Finally, the FJD Defendants argue that any claims
based on past practices are now moot because, as discussed
above, the civil forfeiture procedures have changed.
Mem. at 17-19.

See FJD

As Plaintiffs argue, the Court previously

considered and rejected this same argument.

The Court

explained:
[A] defendant cannot automatically moot a
case simply by ending its unlawful conduct
once sued.
Otherwise, a defendant could
engage in unlawful conduct, stop when sued
to have the case declared moot, then pick up
where he left off, repeating this cycle
until he achieves all his unlawful ends.
Sourovelis, 103 F. Supp. 3d at 701 (quoting Already, LLC v.
Nike, Inc., 133 S. Ct. 721, 727 (2013)).
The FJD Defendants argue that, unlike the interim
changes that were made prior to the Court’s previous ruling, the
GCR is a “court order,” which is “not some informal policy that
was drafted to get out from under litigation.”

FJD Mem. at 18.

Accordingly, there is “no indication” that the FJD will simply
abandon the GCR and Local Rule 588 when the case is over.
at 19.

Id.

As the Court previously explained, “the Supreme Court

has held that ‘a defendant claiming that its voluntary
compliance moots a case bears the formidable burden of showing
that it is absolutely clear that the allegedly wrongful behavior
could not reasonably be expected to recur.’”

Sourovelis, 103 F.

Supp. 3d at 701 (quoting Friends of the Earth, Inc. v. Laidlaw
24

Envt’l Servs. (TOC), Inc., 528 U.S. 167, 190 (2000)).
Plaintiffs argue that a “court order” is not sufficient to meet
this burden, as the Supreme Court and Third Circuit have both
held that even legislative repeal of an unconstitutional
practice is insufficient to moot a claim.

See Pls.’ Opp. at 24

(citing Ne. Fla. Chapter of Assoc. Gen. Contractors of Am. v.
City of Jacksonville, Fla., 508 U.S. 656, 662 (1993); People
Against Police Violence v. City of Pittsburgh, 520 F.3d 226, 231
n.2 (3d Cir. 2008)).
The FJD Defendants seem to imply that the GCR is akin
to a judicial order issued in a state court case, and therefore
that this Court should give it greater deference than, for
example, a legislative order, or the informal practices
implemented by the D.A.’s Office prior to the Court’s previous
motion to dismiss ruling.

That is not so.

The GCR is an

administrative, procedural rule signed by Judge Allen in her
capacity as an administrative judge, and does not have the
imprimatur of a judicial order.
No. 173.

See GCR, FJD Mot. Ex. A, ECF

As the Supreme Court of Pennsylvania has explained,

“[a]dministrative judges . . . are charged with the
administration of their respective divisions.”
Blake, 593 A.2d 1267, 1269 (Pa. 1991).

Petition of

In that capacity, they

are classed with the appointment and assignment of the personnel
of their division, and have “a host of other supervisory duties
25

to facilitate the speedy and proper administration of justice.”
Id.

Under this power and directive, the administrative judge of

the FJD – whether Judge Allen or some future administrative
judge – would have the power to promulgate a new general court
regulation further changing the FJD’s civil forfeiture
procedures, including reverting to the procedures in place from
2007 through October 2015.10
Indeed, Plaintiffs allege that, prior to 2007, civil
forfeiture proceedings were handled by judges, until the FJD,
facing a shortage of resources, decided to give those
responsibilities to prosecutors and paralegals in Courtroom 478
instead.

See SAC ¶¶ 114-30.

While there may be “no indication”

that the FJD will “abandon” the GCR, there is also no indication
that it will not; particularly if it again faces resource
constraints.

The FJD Defendants’ assertions that the FJD will

not revert to the Prior Procedures are simply not enough to meet
their “formidable burden” of demonstrating that the previous
civil forfeiture procedures will not reoccur.

10

At the hearing, counsel for the FJD Defendants
represented that general court regulations such as the GCR are
provided to the state rules procedure committee to ensure that
the draft general court regulation is not in conflict with the
state procedural rules, but there is no notice and comment
period, and a draft general court regulation is not provided to
the Board of Judges for a vote. See Hr’g Tr. 46:6-25; 47:1,
Mar. 15, 2017, ECF No. 200.
26

As a result, the Court find that Plaintiffs have
standing to assert claims against the FJD Defendants for their
role in creating and implementing past civil forfeiture
procedures, and that Plaintiffs’ claims have not become moot.
b.

Challenge to Current Procedures

The FJD Defendants argue that Plaintiffs lack standing
to seek prospective relief regarding the new civil forfeiture
procedures implemented under the GCR, because Plaintiffs do not
plausibly allege that they will be subject to civil forfeiture
proceedings in the future, and thus they cannot allege an injury
with respect to those practices.

See FJD Mem. at 10-14.

The

FJD Defendants also argue that Plaintiffs’ claims regarding the
new practices are not “ripe” because Plaintiffs do not have
ongoing forfeiture proceedings, and therefore they are basing
their claims on speculation about how the GCR might be applied
in the future.

See FJD Mem. at 14-17.

With respect to both arguments, Plaintiffs respond
that the FJD Defendants misconstrue their claims, and that
Plaintiff’s claims “are not (and need not be) specific to the
court regulation or Local Rule 588.”

Pls.’ Opp. at 25.

Plaintiffs argue that they are challenging “the FJD Defendants’
procedures generally, having alleged that they were
unconstitutional when this litigation commenced and remain

27

unconstitutional today.”

Id.

Plaintiffs contend, therefore,

that because the Court determined that Plaintiffs had standing
to challenge the FJD Defendants’ procedures at the outset of
this litigation, and none of the FJD Defendants’ changes have
mooted their claims, they still have standing now.

See id.

Plaintiffs argue that the FJD Defendants’ ripeness argument
fails for the same reason: Plaintiffs are not making a separate,
pre-enforcement challenge to the GCR.

Instead, Plaintiffs

argue, they challenge the constitutionality of the procedures
that were in place, and allege that new changes the FJD
Defendants have made have not remedied the constitutional
deficiencies.
The FJD Defendants respond that Plaintiffs have added
“a new claim based on new facts (and against a new party),”
which is “no different for standing purposes than if they
brought a separate case with prospective claims challenging the
FJD’s current forfeiture procedures.”
180.

FJD Reply at 3, ECF No.

According to the FJD Defendants, Plaintiffs must establish

standing separately for each claim and form of relief sought,
which they have not done with respect to their claims
challenging the Current Procedures.

See id.

Plaintiffs respond in their surreply that the FJD
Defendants’ argument that the Second Amended Complaint must be
treated like a new case for standing purposes is not supported
28

by any authority, and would drag the Court into an endless
“black hole” of litigation, defeating the point of the
“inherently transitory” exception to the mootness doctrine.
Pls.’ Surreply Ex. A, at 1-3, ECF No. 186-1 (citing Williams v.
City of Phila., 270 F.R.D 208, 220 (E.D. Pa. 2010)).

Plaintiffs

explain that if the Court concluded that Plaintiffs lack subject
matter jurisdiction to challenge the new aspects of the civil
forfeiture procedures, they would move for leave to amend their
complaint to add new named plaintiffs who own property against
which civil forfeiture petitions have been filed under the
procedures currently in effect.

See id.

At that point, the FJD

Defendants could make cosmetic changes to their procedures
again, and the cycle would continue.

See id. at 3.

The Court agrees with Plaintiffs’ characterization of
their claims.

Every one of the four counts asserted against the

FJD Defendants – Counts Three, Four, Six, and Seven – contains
allegations that the pre-October 2015 civil forfeiture
procedures were unconstitutional, and then alleges that the
changes to the procedures have not fixed these deficiencies.
Therefore, Plaintiffs do not need to add new named plaintiffs in
order to allege that changes to the procedures did not remedy
the constitutional deficiencies.

This is not like a new case

being brought based on the Current Procedures; instead,

29

Plaintiffs claim that the procedures were unconstitutional, and
still are, despite the enactment of the Current Procedures.
Accordingly, the Court finds that Plaintiffs have
standing with respect to all of their claims against the FJD
Defendants, and that those claims are ripe.
2.

Federalism and Comity

The FJD Defendants’ final argument in support of their
Rule 12(b)(1) motion is that the Court should abstain from
hearing Plaintiffs’ claims because “[f]ederalism and comity
principles prevent this Court from dictating to the FJD how to
operate its courts.”

FJD Mem. at 27-30.

In response, Plaintiffs argue that (1) federal courts
regularly exercise jurisdiction over challenges to the
constitutional adequacy of state-court administration; (2)
Plaintiffs’ requested relief would not entail impermissible
federal supervision of state court operations; (3) this Court
previously considered and rejected the argument that this case
raises abstention issues under Younger v. Harris, 401 U.S. 37
(1971); and (4) this Court invited Plaintiffs to join the FJD
Defendants to this lawsuit to establish jurisdiction over them.
See Pls.’ Opp. at 28-31.
The Court finds Plaintiffs’ arguments - which the FJD
Defendants do not even address in their reply - persuasive.

30

The

issue is not the power of the federal court to intervene to
redress the violation, but rather the degree and nature of the
intervention.

The FJD Defendants rely primarily on O’Shea v.

Littleton, 414 U.S. 488 (1974), in which the Supreme Court
refused to enter an injunction that would require it to
continuously supervise and monitor state court operations,
including “periodic reporting,” because it would raise issues
under Younger, 401 U.S. 37.

O’Shea, 414 U.S. at 501.

However,

in this case, Plaintiffs do not seek any ongoing monitoring of
the civil forfeiture procedures, nor any type of remedy that
would entangle this Court with the management of the First
Judicial District.

Rather, Plaintiffs seek a declaration that

the Prior Procedures and Current Procedures are
unconstitutional, and an injunction enjoining those practices.
If Plaintiffs obtain their desired relief, the FJD would be free
to design any appropriate procedures, provided those procedures
accord with due process.

Accordingly, it does not violate

notions of federalism and comity for this Court to exercise
jurisdiction over the FJD to remedy any due process violations.11

11

The Supreme Court and the Third Circuit have generally
approved of this practice. See, e.g., Gerstein v. Pugh, 420
U.S. 103, 107 & n.8 (1975) (exercising jurisdiction over class
action in which the plaintiffs alleged that the defendants,
various state officials including judges, had violated the
plaintiffs’ constitutional rights by detaining them without
holding judicial hearings on the issue of probable cause for
detention); Georgevich v. Strauss, 772 F.2d 1078, 1088 (3d Cir.
31

Indeed, this Court previously rejected the City and D.A.
Defendants’ arguments that it abstain from exercising its
jurisdiction over Plaintiffs’ claims.
*

*

*

For the foregoing reasons, the Court will deny the FJD
Defendants’ motion to dismiss Plaintiffs’ Second Amended
Complaint under Rule 12(b)(1) for lack of subject matter
jurisdiction.
B.

Rule 12(b)(6)
The FJD Defendants argue that the Court should dismiss

the claims against them for failure to state a claim because (1)
the FJD’s procedures provide due process in accordance with the
Fourteenth Amendment; and (2) the FJD Defendants are not the
proper defendants because the FJD did not enact the Control
Substances Forfeiture Act.

See FJD Mem. at 19-27; 30.

The FJD Defendants specifically argue that the FJD’s
current civil forfeiture procedures provide adequate due process
because (1) Local Rule 588 provides a procedure for a postdeprivation hearing; (2) respondents receive a hearing before an
impartial judicial officer; (3) the FJD is not required to
1985) (discussing various Supreme Court decisions “set[ting] to
rest any concerns about the propriety of suing state judges in
federal court”). In Georgevich, the Third Circuit ultimately
abstained from exercising jurisdiction, after concluding that
state law already required the relief that the plaintiffs
sought. See Georgevich, 772 F.2d at 1094-95.
32

advise claimants of their rights; (4) the GCR does not implicate
Fifth Amendment rights; and (5) Plaintiffs fail to allege that
the FJD’s Current Procedures for common law forfeitures are
unconstitutional.

See FJD Mem. at 19-27.

As an initial matter, it is unclear which claims the
FJD Defendants intend to attack with these arguments, as they do
not refer to specific claims.

The Second Amended Complaint

contains four claims against the FJD Defendants, alleging that
the following policies and procedures violate due process:
(1) failure to provide a prompt post-deprivation hearing (Count
Three); (2) repeated re-listing of civil forfeiture proceedings
(Count Four); (3) allowing prosecutors, as opposed to neutral
arbitrators, to control the civil forfeiture courtroom (Count
Six); and (4) failure to provide adequate notice and use civil
rules of procedure (Count Seven).

As Plaintiffs note, the FJD

Defendants’ arguments could apply only to Counts Three and
Seven: (1) none of the arguments relate to re-listing hearings
(Count Four); and (2) the arguments relate to the procedures
currently in place, and therefore cannot apply to Count Six,
which solely relates to the procedures in place prior to October
2015.

Accordingly, the Court will discuss the applicability of

the FJD Defendants’ arguments to Counts Three and Seven.

33

1.

Count Three

In Count Three, Plaintiffs allege that the FJD
Defendants fail to provide for a prompt post-deprivation hearing
following the seizure of property subject to civil forfeiture.
See SAC ¶¶ 319-29.

The FJD Defendants argue that Plaintiffs’

allegations fail to state a claim because Local Rule 588, which
the First Judicial District enacted prior to the filing of the
instant action, provides for a prompt post-deprivation hearing.
See FJD Mem. at 19-23.

Plaintiffs argue that (1) the Court

already considered and rejected this exact same argument with
respect to State Rule 588, and (2) whether or not Local Rule 588
actually provides constitutionally adequate due process
protections involves questions of fact not resolvable on a
motion to dismiss.

See Pls.’ Opp. at 34-37.

Plaintiffs’ allegations regarding Count Three in the
Second Amended Complaint are virtually unchanged from those in
the First Amended Complaint, with the exception of additional
allegations relating to the FJD Defendants and the procedures
implemented following the filing of this lawsuit.

Plaintiffs

allege that the FJD Defendants have a “policy and practice of
administering civil-forfeiture proceedings against seized or
restrained property when they know or should reasonably know
that those proceedings afford property owners no meaningful
opportunity to contest the seizure or restraint at a meaningful
34

time before the ultimate hearing on the merits.”

SAC ¶ 325.

With respect to the Current Procedures, Plaintiffs allege that
the GCR fails to cure the due process deprivation because it
“forces property owners to wait at least 60 days before being
informed of the availability of post-deprivation relief and then
an indefinite amount of time before a prompt, post-deprivation
hearing is scheduled.”

Id. ¶ 327.

The FJD Defendants argue that, contrary to Plaintiffs’
allegations, persons against whose property civil forfeiture
proceedings are filed are provided with a prompt, postdeprivation hearing in accordance with Local Rule 588, which the
First Judicial District adopted on August 11, 2016 (over two
years after the instant action was filed).
23.

See FJD Mem. at 20-

Local Rule 588 states that the Office of Judicial Records

“shall schedule a prompt hearing” on a motion for the return of
property.

See FJD Mot. Ex. B, Local R. 588, ECF No. 173.

The

FJD Defendants argue that this rule provides constitutionally
adequate due process.

See FJD Mem. at 20-23.

As Plaintiffs point out in response, the Court already
considered and rejected similar arguments with respect to
Pennsylvania Rule of Criminal Procedure 588 in its decision
denying the City and D.A. Defendants’ motion to dismiss the
First Amended Complaint.
708.

See Sourovelis, 103 F. Supp. 3d at

The Court held that, regardless of cases finding
35

Pennsylvania Rule 588 to provide sufficient post-deprivation
process in other contexts, it is not clear as a matter of law
that a Pennsylvania Rule 588 motion would provide a
constitutionally sufficient chance to contest the basis for the
deprivation at a meaningful time and in a meaningful manner in
this context.

See id. at 708.

The FJD Defendants attempt to

distinguish this Court’s previous opinion by arguing that the
Court discussed only Pennsylvania Rule 588, and, unlike that
rule, the newly-enacted Local Rule 588 specifically states that
a “prompt hearing” will be scheduled.

See FJD Mem. at 22.

Plaintiffs argue that Local Rule 588, just like
Pennsylvania Rule 588, does not provide a definitive time frame
for a hearing.

See Pls.’ Opp. at 35.

Plaintiffs explain that

they allege that property owners must wait an “indefinite”
period of time before a hearing is scheduled, and that Local
Rule 588 does not contradict this allegation, as it states only
that a “prompt hearing” will be scheduled, without defining the
term “prompt” or providing any particular timeframe.
35-36.

See id. at

Plaintiffs assert that the FJD Defendants’ argument that

property owners are in fact provided with “prompt” hearings
introduces factual questions not appropriate for resolution on a
motion to dismiss.

See id.

The Court finds that Plaintiffs have the better of
this argument.

Local Rule 588 provides only that a “prompt
36

hearing” shall be scheduled, without suggesting, even as a
general rule, what may be a reasonable time period depending on
the circumstances of any one case, or what procedures will be
followed at the hearing - basic information necessary for the
Court to evaluate whether property owners may contest the
deprivation “at a meaningful time and in a meaningful manner” as
required under Mathews v. Eldrige, 424 U.S. 319, 333 (1976)
(quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965)).
Determining whether constitutional due process is actually
provided under the circumstances would thus require the
determination of factual questions not resolvable on a motion to
dismiss.12

None of the cases the FJD Defendants cite suggest

otherwise.13
As a result, the Court will deny the FJD Defendants’
motion to dismiss Count Three for failure to state a claim.
12

The Court is not suggesting that the FJD needs to
commit to a specific time table, a matter left to the discretion
of that court, or that this Court purports to superintend the
FJD’s determination of its own practices and procedures.
However, some basic information is needed for this Court to
evaluate the constitutionality of the Current Procedures.
13

With one exception, the cases the FJD Defendants cite
holding that Pennsylvania Rule 588 provides adequate due process
in other contexts are the same cases the City and D.A.
Defendants previously cited, and that the Court considered and
distinguished in its previous opinion. See Sourovelis, 103 F.
Supp. 3d at 708. The sole new case, Williams v. Sminkey, No.
13-2057, 2016 WL 161498 (E.D. Pa. Jan. 14, 2016), does not apply
to civil forfeiture proceedings and thus is distinguishable for
the same reasons the Court distinguished the remainder of the
cases the FJD Defendants cite.
37

2.

Count Seven

Count Seven relates to the FJD Defendants’ role in
administering civil forfeiture proceedings.

Specifically,

Plaintiffs allege that the procedures violate due process by (1)
allowing criminal judges and trial commissioners to adjudicate
civil forfeiture proceedings, (2) applying criminal procedures
to civil proceedings, and (3) failing to provide property owners
with adequate notice of their constitutional rights and legal
responsibilities.

See SAC ¶¶ 354-60.

The FJD Defendants argue that Plaintiffs have failed
to state a claim because (1) there is no constitutional issue
with having criminal judges adjudicate civil forfeiture
proceedings; (2) there is no constitutional requirement to
provide individualized notice to property owners under City of
West Covina v. Perkins, 525 U.S. 234, 241 (1999); and (3)
Plaintiffs do not provide any factual basis to support their
allegation that common law forfeiture procedures violate due
process.

See FJD Mem. at 23-27.
a.

Adjudication

First, the FJD Defendants argue that it is not
unconstitutional for criminal judges to adjudicate civil
forfeiture proceedings.

Plaintiffs respond that they also

allege that Trial Commissioners – who are not judges and do not

38

have the authority to make legal determinations – are actually
adjudicating legal issues at civil forfeiture proceedings.

See

Pls.’ Opp. at 37-38 (citing SAC ¶ 154(d), which alleges that
Trial Commissioners “perform adjudicative acts beyond the scope
of their authorities, such as deciding whether a case presents
any genuine issue of material fact, or whether property owners
are knowingly and voluntarily waiving their right to a jury
trial”).

The FJD Defendants reply that the GCR provides that

all motions for default or summary judgment are assigned to a
judge for disposition, and if the parties reach an agreement at
or before the pretrial conference, the matter is scheduled
before a judge.

See FJD Reply at 5 (citing GCR §§ 10, 12(f)).

In their surreply, Plaintiffs argue that the question of which
acts Trial Commissioners perform is a factual issue not suitable
for resolution on this motion to dismiss.

See Pls.’ Surreply at

4-5.
As an initial matter, while Plaintiffs’ well-pleaded
allegations must be accepted as true for purposes of this
motion, the Court need not accept as true allegations that are
directly contradicted by indisputably authentic documents on
which the complaint relies, or matters of public record.

See

Pension Benefit, 998 F.3d at 1197; ALA, Inc. v. CCAIR, Inc., 29
F.3d 855, 859 n.8 (3d Cir. 1994).

39

Thus, the Court need not

accept Plaintiffs’ allegations as true to the extent that they
directly contradict the unambiguous text of the GCR.
However, the Court disagrees with the FJD Defendants’
assertions that the GCR directly contradicts the allegations in
Count Seven.

Instead, Plaintiffs appear to have based their

allegations on the GCR itself.

While the FJD Defendants are

correct that the GCR provides that all motions will be assigned
to a judge for disposition, the GCR also allows Trial
Commissioners to preside over pretrial conferences, at which
certain binding legal determinations may be made.
FJD Mot. Ex. A, ECF No. 173.

See GCR § 12,

Specifically, a Trial Commissioner

may determine at a pretrial conference “[w]hether there are any
genuine issues of material fact,” and whether property owners
would like to waive their rights to a jury trial.

See id.

Therefore, at this stage of the proceedings, Plaintiffs have
plausibly alleged that permitting non-judicial Trial
Commissioners to adjudicate these legal questions deprives
property owners of due process, including the fair
administration of justice.
b.

Use of Criminal Procedures

Second, the FJD Defendants argue that there is no
constitutional issue with using criminal judges and criminal
procedures for civil forfeiture proceedings, because criminal

40

judges are impartial adjudicators, as due process requires.
Plaintiffs respond that the FJD Defendants mischaracterize their
allegations: they do not allege that criminal judges are not
impartial, but instead that reliance upon criminal procedures by
criminal judges causes the repeated re-listing of proceedings,
which in turn denies due process.

See Pls.’ Opp. at 38-39

(citing SAC ¶¶ 154, 334, 357-58).

The Court agrees with

Plaintiffs that their allegations of repeated and unjustified
re-listing of civil forfeiture petitions state a plausible claim
for a due process violation.
c.

Adequate Notice

Third, the FJD Defendants argue that Plaintiffs have
failed to state a claim with respect to notice because the
Supreme Court held in Perkins, 525 U.S. at 241, that
individualized notice of state law remedies is not required when
the remedies are “established by published, generally available
state statutes and case law.”
Perkins, 525 U.S. at 241).

FJD Mem. at 24-25 (quoting

Because the GCR discusses the rights

of property owners, the FJD Defendants argue, no additional
notice is required.

See id.

Plaintiffs respond that Perkins

did not establish that statutory notice is always sufficient to
satisfy due process, and a determination of whether it is
sufficient requires consideration of factual issues, such as the

41

content of the notice provided through the statutes.
Opp. at 39-40.

See Pls.’

Plaintiffs’ characterization of Perkins is

correct; the case involved a motion for summary judgment, and
the Supreme Court concluded statutory notice was sufficient to
satisfy due process based on the factual circumstances of that
case.

See Perkins at 238.

Plaintiffs have therefore plausibly

alleged that the FJD Defendants provide insufficient notice to
property owners.
Accordingly, the Court will deny the FJD Defendants’
motion to dismiss Count Seven for failure to state a claim.
3.

Proper Defendants

Finally, the FJD Defendants argue that they are “not
proper defendants” for Plaintiffs’ challenge to the
constitutionality of Sections 6801 and 6802 of the Controlled
Substances Forfeiture Act, because the FJD did not enact the
statutes and does not defend them.

See FDJ Mem. at 30.

As

Plaintiffs point out, however, they are not solely challenging
the constitutionality of any section of the Controlled
Substances Forfeiture Act, which did not establish all of the
policies and procedures that Plaintiffs challenge.

Rather,

Plaintiffs are challenging various aspects of Philadelphia’s
civil forfeiture policies and practices.

42

With respect to the FJD Defendants, in particular,
Plaintiffs allege that the FJD Defendants had a role in
establishing the unconstitutional policies and practices of
(1) failing to provide a prompt post-deprivation hearing; (2)
repeatedly re-listing civil forfeiture hearings; (3) allowing
prosecutors and paralegals, as opposed to neutral arbitrators,
to control civil forfeiture proceedings; and (4) failing to
establish constitutionally adequate procedures for notice and
procedural rules.

None of these alleged policies and

procedures, or lack thereof, are governed by the CSFA.

As

Plaintiffs allege that the FJD Defendants had a role in creating
these policies and procedures, the FJD Defendants are “proper
defendants” for Plaintiffs’ claims.
*

*

*

For the foregoing reasons, the Court will deny the FJD
Defendants’ motion to dismiss Plaintiffs’ Second Amended
Complaint under Rule 12(b)(6) for failure to state a claim.
VI.

THE CITY DEFENDANTS’ MOTION TO DISMISS
The City Defendants move to dismiss Counts Four and

Six of the Second Amended Complaint on the basis that (1)
Plaintiffs have not plausibly alleged that the City’s policies
or customs caused the conduct at issue in Counts Four and Six;
and (2) Plaintiffs have failed to alleged conduct by a City

43

policymaker in connection with those two claims.
Defs.’ Mot. Dismiss, ECF No. 158.

See City

The City Defendants request

dismissal with prejudice, on the basis that Plaintiffs have
already had two opportunities to amend their complaint, as well
as fifteen months of discovery.

Id.

Plaintiffs respond that

(1) Federal Rule of Civil Procedure 12(g) precludes the City
Defendants’ motion, as it is a successive motion to dismiss
raising arguments previously available to them; and (2) the City
Defendants’ arguments are meritless.

See Pls.’ Opp. to City

Defs.’ Mot. Dismiss [hereinafter Pls.’ City Opp.], ECF No. 165.
The Court agrees that Rule 12(b) precludes the City Defendants’
motion.
Rule 12(g)(2) states that, “[e]xcept as provided in
Rule 12(h)(2) or (3), a party that makes a motion under this
rule must not make another motion under this rule raising a
defense or objection that was available to the party but omitted
from its earlier motion.”

Fed. R. Civ. P. 12(g)(2).

Rule

12(h)(2), in turn, provides that “[f]ailure to state a claim
upon which relief can be granted . . . may be raised: (A) in any
pleading allowed or ordered under Rule 7(a); (B) by motion under
Rule 12(c); or (C) at trial.”

Fed. R. Civ. P. 12(h)(2).

Under

Rule 12(h)(3), “[i]f the court determines at any time that it
lacks subject-matter jurisdiction, the court must dismiss the
action.”

Fed. R. Civ. P. 12(h)(3).
44

The Court denied Defendants’ joint motion to dismiss
the First Amended Complaint on May 12, 2015.

ECF Nos. 66, 67.

The Court specifically rejected Defendants’ arguments that
Counts Four and Six failed to state a claim for relief under
Rule 12(b)(6).

See Sourovelis, 103 F. Supp. 3d at 708-09.

The

only changes Plaintiffs have made to Counts Four and Six in
their Second Amended Complaint are the addition of a single
paragraph to each count explaining how the GCR does not cure the
problems alleged in each claim.

As Plaintiffs point out, filing

an amended complaint does not affect Rule 12(g)’s prohibition
against successive motions to dismiss.

See Pls.’ City Opp. at

2-3 (quoting 5C Charles Alan Wright & Arthur R. Miller, Federal
Practice and Procedure § 1388 (“The filing of an amended
complaint will not revive the right to present by motion
defenses that were available but were not asserted in timely
fashion prior to the amendment of the pleading.”)).
While the City Defendants make new arguments in the
instant motion that Defendants did not make in their motion to
dismiss the First Amended Complaint, none of those arguments
relate to the only new material in Counts Four and Six:
Plaintiffs’ allegations regarding the GCR.

Instead, the City

Defendants’ arguments in the instant motion relate solely to
allegations that appeared in the First Amended Complaint.

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The

City Defendants therefore could have (and should have) made
those arguments in their previous motion to dismiss.
In response, the City Defendants argue that Rule
12(h)(2) permits a defense based on failure to state a claim “to
be presented through a Rule 12(b)(6) motion filed before an
answer, a Rule 12(c) motion filed after an answer, or even
during trial,” and therefore that they are able to file a motion
to dismiss pursuant to Rule 12(b)(6) at this stage of the case.
See City Reply at 1 (citing Fed. R. Civ. P. 12(h)(2)(C)), ECF
No. 166-1.

The City Defendants misunderstand Rule 12(h)(2).

The rule does not permit a party to file duplicative, successive
motions to dismiss under Rule 12(b)(6), as the City Defendants
have done here, but instead permits a party to raise the defense
of a failure to state a claim at one of three additional stages
in the litigation: in any pleading allowed or ordered under Rule
7(a), in a Rule 12(c) motion for judgment on the pleadings, or
at trial.

See Fed. R. Civ. P. 12(h)(2)(C).
As the Third Circuit has explained, “[t]he procedural

bar of Rule 12(g)(2) . . . covers all motions to dismiss for
failure to state a claim, regardless of the grounds asserted.”
Leyse v. Bank of Am. Nat’l Ass’n, 804 F.3d 316, 321 (3d Cir.
2015).

A successive motion to dismiss filed under Rule 12(b)(6)

is “plainly neither a Rule 7(a) pleading nor a motion raised a
trial,” nor is it a Rule 12(c) motion.
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Id. at 320-21.

As a

result, no exception to Rule 12(h)(2) covers a successive motion
to dismiss, and it is “improper” for a district court to
consider such a motion.

Id. at 321.

Therefore, the Court will deny the City Defendants’
motion to dismiss Counts Four and Six of Plaintiffs’ Amended
Complaint pursuant to Rule 12(g)(2).
VII. CONCLUSION
For the foregoing reasons, the Court will deny the FJD
Defendants’ motion to dismiss Plaintiffs’ Second Amended
Complaint pursuant to Federal Rules of Civil Procedure 12(b)(1)
and 12(b)(6).

The Court will also deny the City Defendants’

Partial Motion to Dismiss Counts Four and Six of Plaintiffs’
Second Amended Complaint.
An appropriate order follows.

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