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Walteros v. United States of America Drug Enforcement Administration

United States District Court, S.D. Florida

January 23, 2018

Jose Walteros, Plaintiff,
v.
United States of America Drug Enforcement Administration, Defendant.

          ORDER ON MOTION TO DISMISS AND REFERRAL TO MAGISTRATE JUDGE FOR EVIDENTIARY HEARING

          Robert N. Scola, Jr., United States District Judge.

         This matter is before the Court on the Defendant's motion to dismiss the Complaint/Motion/Petition to Set Aside DEA Administrative Forfeiture (“Complaint”) for insufficient service of process and failure to state a claim upon which relief may be granted (ECF No. 7). For the reasons set forth below, the Court grants in part and denies in part the Defendant's motion (ECF No. 7).

         1. Background

         The Complaint alleges that the United States Drug Enforcement Administration (“DEA”) seized $212, 430 in U.S. currency from Plaintiff Jose Walteros without a warrant on July 2, 2016, in the parking area of the Parisian/Geneva Hotel & Suites (the “Parisian”) in Miami Beach, Florida. (Compl. ¶¶ 1, 3, ECF No. 1.) At the time, Walteros did not know that the men who seized the money were DEA agents. (See Id. ¶¶ 1, 2-5.) The Plaintiff alleges that he told the agents that he and his family would be staying at the Parisian for several days, and that the agents did not provide him with business cards or a receipt for the seizure. (Id. ¶¶ 2-3.) After Walteros returned to Colombia, he hired a private investigator in Florida to find out who had taken his money, and the investigator eventually discovered that the money had been seized by the DEA. (Id. ¶¶ 4-5.)

         Sometime thereafter, Walteros hired counsel to assist him in recovering the money from the DEA. (Id. ¶ 6.) On January 23, 2017, Walteros's counsel sent the DEA a verified claim requesting return of the money and judicial review. (Id. ¶ 7.) A month later, the DEA responded, stating that the time to file a verified claim requesting judicial review had expired. (Id. ¶ 8.) After Walteros's counsel submitted a verified claim and requested judicial review on two more occasions and sent a Freedom of Information Act (“FOIA”) request to the DEA, the DEA notified Walteros's counsel on June 7, 2017 that it had administratively forfeited the property on May 2, 2017. (Id. ¶¶ 9-12.)

         On October 4, 2017, Walteros filed this action, requesting that the Court set aside the administrative forfeiture. Walteros also requests that the Court order the DEA to return the money to Walteros pursuant to Federal Rule of Criminal Procedure 41(g) and prohibit the DEA from pursuing a forfeiture action against the property at any time in the future.

         2. Legal Standard

         A. Insufficient Service of Process

         Under Federal Rule of Civil Procedure 12(b)(5), a defendant may move to dismiss for insufficient service. “[W]hen service of process is challenged, the party on whose behalf service is made has the burden of establishing its validity.” Familia de Boom v. Arosa Mercantil, S.A., 629 F.2d 1134, 1139 (5th Cir. 1980)[1]; see also Andujar v. All Coast Transporters, Inc., No. 12-62091, 2013 WL 2404059, at *2 (S.D. Fla. May 31, 2013) (Cohn, J.); but see Fru Veg Mktg., Inc. v. Vegfruitworld Corp., 896 F.Supp.2d 1175, 1182 (S.D. Fla. 2012) (Ungaro, J.) (finding that the defendant has the initial burden “of challenging the sufficiency of service and ‘must describe with specificity how the service of process failed to meet the procedural requirements of Fed.R.Civ.P. 4, ” before the burden shifts to the plaintiff to establish a prima facie case for valid service); Hollander v. Wolf, No. 09-80587-CIV, 2009 WL 3336012, at *3 (S.D. Fla. Oct. 14, 2009) (Ryskamp, J.) (same).

         B. Failure to State a Claim

         Federal Rule of Civil Procedure 8(a) requires “a short and plain statement of the claims” that “will give the defendant fair notice of what the plaintiff's claim is and the ground upon which it rests.” Fed.R.Civ.P. 8(a). The Supreme Court has held that “[w]hile a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the ‘grounds' of his ‘entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations omitted).

         “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662 (2009) (quotations and citations omitted). “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.” Id. Thus, “only a complaint that states a plausible claim for relief survives a motion to dismiss.” Id. at 1950. When considering a motion to dismiss, the Court must accept all of the plaintiff's allegations as true in determining whether a plaintiff has stated a claim for which relief could be granted. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984). For purposes of Rule 12(b)(6), a court generally may not look beyond the pleadings, which includes any information attached to a complaint. U.S. ex. Rel. Osheroff v. Humana, Inc., 776 F.3d 805, 811 (11th Cir. 2015) (internal citations omitted).

         3. Analysis

         A. Insufficient ...


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