USA v. Patriot Ordnance Factory USA Machine Gun P 416 Rifle et al

Filing 21

MEMORANDUM DECISION granting 19 Motion to Strike First Affirmative Defense re 18 Answer to Amended Complaint. Signed by Judge Ted Stewart on 5/1/19. (jlw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
UNITED STATES OF AMERICA,

MEMORANDUM DECISION AND
ORDER GRANTING GOVERNMENT’S
MOTION TO STRIKE CLAIMANT’S
FIRST AFFIRMATIVE DEFENSE

Plaintiff,
v.
PATRIOT ORDNANCE FACTORY USA
MACHINE GUN, P-416 RIFLE, SERIAL
NO. 08-00625, et al.,

Case No. 2:18-CV-285 TS

Defendant.

District Judge Ted Stewart

This matter is before the Court on the Government’s Motion to Strike Claimant’s First
Affirmative Defense. For the reasons discussed below, the Court grants the Government’s Motion
to Strike.
I. BACKGROUND
The following facts are taken from both the Government’s First Amended Verified
Complaint for Forfeiture in Rem and the Claimant’s (Adam Webber) Answer to First Amended
Civil Complaint for Forfeiture in Rem and Affirmative Defenses (“Answer”). 1
This case is an in rem civil forfeiture action. The Government filed the action against four
firearms seized during an ATF inspection of the Darkside Tactical (“Darkside”) facility on April
18, 2017. The firearms were found and subsequently seized as they were not registered in the
National Firearm Registration and Transfer Record (“NFRTR”) when originally transferred to the
facility.

1

Docket Nos. 13, 18.
1

In its civil forfeiture action, the Government contends that the firearms are subject to
forfeiture under 26 U.S.C. § 5872 and 26 U.S.C. § 5861(b). Under § 5872(a), “any firearm involved
in any violation of the provisions of [the National Firearms Act] shall be subject to seizure and
forfeiture.” 2 Additionally, § 5861(b) makes it unlawful for any person “to receive or possess a
firearm transferred to him in violation of the provisions of [the National Firearms Act].” 3 Because
Darkside allegedly accepted Claimant’s unregistered firearms, the Government posits Darkside
was in violation of § 5861(b). Consequently, the Government argues that the firearms are subject
to civil forfeiture under § 5872(a). Claimant’s Answer contests the forfeiture action, claiming as
his First Affirmative Defense (“Defense”) that the ATF illegally searched Darkside and seized the
firearms subject in this action. 4
On March 12, 2019, the Government filed its Motion to Strike Claimant’s Defense from
Claimant’s Answer under Federal Rules Civil Procedure 12(f), asserting that Claimant’s Defense
is insufficient. Claimant has not filed a response and the time for doing so has expired.
II. STANDARD OF REVIEW
Federal Rules of Civil Procedure 12(f) provides that a “court may strike from a pleading
an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” 5 Motions
to strike are generally “viewed with disfavor by the federal courts and are infrequently granted.”6

2

26 U.S.C. § 5872(a).
Id. § 5861(b).
4
Docket No. 18, at 7.
5
FED. R. CIV. P. 12(f).
6
Jorgenson v. Wright Medical Group, Inc., No. 2:18-CV-366 TS, 2018 WL 5792325, at
*2 (D. Utah Nov. 5, 2018) (citing 5C CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL
PRACTICE AND PROCEDURE § 1380 (3d ed. 2018)).
3

2

However, while “striking a defense is a drastic remedy,” it is within the “court’s discretion to grant
a motion to strike.” 7
III. DISCUSSION
DUCivR 7-1(b)(3)(B) states that response to a motion under Rule 12(f) must be filed within
fourteen days in order to contest a motion. 8 Claimant has failed to file a motion in response to the
Government’s Motion to Strike, and the time to do so has expired. 9 At this junction, the Court
could grant the Government’s Motion to Strike based on Claimant’s failure to file a timely
response alone. 10 However, the procedural timing issue aside, the Court also grants the
Government’s Motion on its merits.
The Government’s main contention in this case is that Claimant’s Defense is insufficient.
The Government’s motion can be reduced to two points: 1) Claimant cannot claim that his Fourth
Amendment rights against illegal searches and seizures were violated because he does not have
the legal basis to make such an argument; and 2) even if Claimant had a legal basis to claim a
Fourth Amendment violation, this type of a claim does not prevent a forfeiture claim from being
successful.
“A person who is aggrieved by an illegal search and seizure only through the introduction
of damaging evidence secured by a search of a third person’s premises or property has not had any

7

Tiscareno v. Frasier, No. 2:07-CV-336 CW, 2012 WL 1377886, at *13–14 (D. Utah
Apr. 29, 2012).
8

See DUCivR 7-1(b)(3)(B).

9

Id.

10

See DUCivR 7-1(d) (“Failure to respond timely to a motion . . . may result in the
court’s granting the motion without further notice.”).

3

of his Fourth Amendment rights infringed.” 11 Therefore, it is “proper to permit only defendants
whose Fourth Amendment rights have been violated to benefit from the [exclusionary] rule’s
protections.” 12
Here, Claimant’s Defense is that the search and seizure of the firearms was illegal.
However, Claimant cannot successfully contend that his Fourth Amendment rights were violated.
A third party’s property, not Claimant’s, was searched. Therefore, Claimant’s Fourth Amendment
rights were not infringed. Moreover, even if the search of Darkside and the subsequent seizure of
the firearms was illegal under the Fourth Amendment, such a violation has no bearing on
Claimant’s rights in the matter before the Court. Therefore, Claimant is not permitted to claim the
“benefit from the rule’s protections.”
Even if Claimant could plausibly claim that his rights were violated, a claim of an illegal
search and seizure is an insufficient defense. A defense based upon a fruit-of-the-poisonous-tree
doctrine is insufficient to contest a civil forfeiture. “By definition, a defense is a [claimant’s]
assertion of a reason why the court should find that the plaintiff does not have a valid case.” 13
Under Rule 12(f), “a defense may be stricken as insufficient if ‘it cannot succeed, as a matter of
law, under any circumstances.’” 14 In regards to alleged Fourth Amendment violations as a defense,

11

Rakas v. Illinois, 439 U.S. 128, 134 (1978) (citing Alderman v. United States, 394 U.S.
165, 174 (1969)).
12

Id. (citing Simmons v. United States, 390 U.S. 377, 389 (1968)).

13

United States v. 1866.75 Board Feet, 11 Doors & Casings, More or Less of Dipteryx
Panamensis Imported from Nicar., No. 1:07CV110 (GBL), 2008 WL 839792, at *2 (E.D. Va.
Mar. 25, 2008) (internal citations omitted).
14

Tiscareno, 2012 WL 1377886, at * 16 (quoting Wilhelm v. TLC Lawn Care. Inc., No.
07-5465-KHV, 2008 WL 474265, at *2 (D. Kan. Feb. 19, 2008)).

4

“[a] claim of illegal search and seizure will not prevent a forfeiture claim from succeeding.” 15
“Various circuit courts have held that the illegal seizure of property, standing alone, will not
immunize that property from forfeiture,” 16 and the “Supreme Court has recognized that this rule
applies in forfeiture proceedings.” 17
Here, the Government contends that Claimant’s Defense is “insufficient because it alleges
Fourth Amendment search and seizure violations.” 18 Based upon the case law above, the
Government’s assertion is correct: any alleged illegality in regards to the search and seizure of the
firearms from Darkside does not, by itself, immunize those firearms from forfeiture. Claimant’s
Defense cannot therefore succeed. As a result, it is an insufficient defense and is stricken in this
case.
It is therefore
ORDERED that the Government’s Motion to Strike Claimant’s First Affirmative Defense
(Docket No. 19) is GRANTED
DATED this 30th day of April, 2019.
BY THE COURT:

Ted Stewart
United States District Judge
15

1886.75 Board Feet, 2008 WL 839792, at *2.

16

United States v. Premises & Real Prop. at 4492 South Livonia Rd., Livonia N.Y., 889
F.2d 1258, 1265–66 (2d Cir. 1989) (collecting cases); see also United States v. $ 7,850.00 in U.S.
Currency, 7 F.3d 1355, 1357 (8th Cir. 1993) (“The fact that the monies may have been illegally
seized does not immunize them from forfeiture.”).
17

Premises & Real Prop., 889 F.2d at 1266 (citing INS v. Lopez-Mendoza, 468 U.S.
1032, 1040 (1984) (collecting cases)).
18

Docket No. 19, at 1.

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