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UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION UNITED STATES OF AMERICA, Plaintiff, v. Case No. 8:10-cv-1214-T-27TBM

PlayboyMonthly.com, HTMLcomics.com, HTM1comics.com, htmlc0mics.com, ComicBooksFree.com, and HTMLmagazines.com Defendants. ____________________________/ UNITED STATES MOTION TO DISMISS CLAIMANTS COUNTERCLAIM The United States of America, by and through the undersigned Assistant United States Attorney, respectfully moves this Court under Federal Rule of Civil Procedure 12(b)(6) to dismiss Claimant Gregory S. Harts Counterclaim for Injunctive and Declaratory Relief and for Damages because (1) a counterclaim is a legal nullity in an in rem forfeiture action, (2) the Claimant failed to establish that the United States has waived sovereign immunity as to allow a counterclaim, and (3) none of the Claimants counterclaims state a claim upon which relief can be granted. In support thereof the United States submits the following memorandum of law.

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MEMORANDUM OF LAW I. Procedural History 1. On May 27, 2010, the United States filed its Verified Complaint for

Forfeiture in Rem (Complaint) against the following internet domain names: PlayboyMonthly.com, HTMLcomics.com, HTM1comics.com, htmlc0mics.com, ComicBooksFree.com, and HTMLmagazines.com, alleging that they are subject to forfeiture pursuant to 28 U.S.C. 2319 as property used, or intended to be used, to facilitate the commission of criminal copyright infringement offenses in violation of 17 U.S.C. 506. 2. On June 22, 2010, the United States personally served the

Claimant with Notices of Complaint for Forfeiture, which directed the Claimant to file a Verified Claim by July 23, 2010, and an Answer to the Complaint within 21 days after filing the Verified Claim, if he wished to assert an interest in the property subject to forfeiture. See Suppl Rule G(5)(a)-(b), Fed. R. Civ. P. That same day, the Claimant signed an Acknowledgment of Receipt of Notice of Complaint for Forfeiture on behalf of himself, Database Engineers, Inc., Osoifam, Inc., and DB Developers, Inc. 3. On June 24, 2010, the Claimant filed a Verified Claim for the

defendant domain names, alleging that he has an interest in the properties because he is the President of Osoifam, Inc., a Florida corporation that purchased and holds the registrations for the domain names (Doc. 14).

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4.

On June 29, 2010, the Claimant filed an Answer to the Complaint,

which included a Counterclaim for Injunctive and Declaratory Relief and for Damages (Doc. 15). The Claimant purports to allege four counts against the United States: a First Amendment violation, a Fourth Amendment violation, a Privacy Protection Act violation under 42 U.S.C. 2000aa, and Trespass to Chattels. (Id. at 15). Though the Claimant recites in his papers his disagreement with the execution of a federal search warrant at his residence on April 20, 2010, none of the purported counts contain any legal elements or facts to support such claims. II. Legal Argument As set forth below, the Claimants counterclaims are legally and factually deficient and should be dismissed. First, a counterclaim is a legal nullity in an in rem forfeiture proceeding because the action is against the property, not the third-party claimant. Further, the Claimant has failed to allege that the United States has waived sovereign immunity as to allow a counterclaim to proceed. Notwithstanding those fatal defects, the counterclaims also fail to state a claim upon which relief can be granted. A. A Claimant May Not Bring a Counterclaim in an In Rem Action

Because a civil forfeiture action is an in rem proceeding, not in personam, a claimants filing of a counterclaim in a civil forfeiture case is a legal nullity. A civil forfeiture action is an in rem proceeding brought by the government against

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property; the property itself is the defendant. Via Mat Intl S. Am., Ltd. v. United States, 446 F.3d 1258, 1264 (11th Cir. 2006) (a civil forfeiture proceeding is not an action against the claimant but rather is an in rem action against the property). Because in a civil forfeiture proceeding no claim is filed by the government against the Claimant, there is no claim to counter. One Lot of U.S. Currency ($68,000), 927 F.3d 30, 34 (1st Cir. 1991) (dismissing counterclaim in a civil forfeiture action and explaining that [b]y definition, a counterclaim is a turn-thetables response directed by one party (A) at another party (B) in circumstances where (B) has earlier lodged a claim in the same proceeding against (A)); see also United States v. Assorted Computer Equip., No. 032356V, 2004 WL 784493, *2 (W.D. Tenn. Jan. 9, 2004) (same); United States v. $43,725 in U.S. Currency, No. 4:08-1373-TLW, 2009 WL 347475, *1 (D.S.C. Feb. 3, 2009) (dismissing claimants counterclaims because the true defendant in a civil forfeiture action is the property that has been seized, . . . and the claimant is not entitled to pursue a counterclaim against the Government or individuals within the limited scope of the in rem civil forfeiture action). Here, the Claimant has chosen to intervene in the case by asserting his interest in the property, but he is not a defendant. Because this civil forfeiture action has been brought against the property (i.e., the domain names) and not against the Claimant, he is not entitled to file a counterclaim in this action. See United States v. 1866.75 Bd. Ft. and 11 Doors and Casings, No. 1:07cv1100

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(GBL), 2008 WL 839792, *3 (E.D. Va. Mar. 25, 2008) (granting the governments motion to dismiss claimants counterclaims and explaining that any permissible claim a claimant has against the government must be filed as a separate action); United States v. $10,000 in U.S. Funds, 863 F. Supp. 812, 816 (S.D. Ill. 1994) (finding that the claimants pleading in a civil forfeiture action was not properly a counterclaim because [a] counterclaim is an action brought by a defendant against the plaintiff). Accordingly, the Claimants counterclaim is a legal nullity and should be dismissed. B. Claimant Failed to Establish a Waiver of Sovereign Immunity

Well-settled is that sovereign immunity bars suit against the United States except to the extent that it consents to be sued. United States v. Sherwood, 312 U.S. 584, 586 (1941); Means v. United States, 176 F.3d 1376, 1378 (11th Cir. 1999). No suit may be maintained against the sovereign unless the suit is brought in exact compliance with the terms of the statute under which the sovereign has consented to be sued. Soriano v. United States, 352 U.S. 270, 276 (1957). A waiver of sovereign immunity may not be implied, but must be unequivocally expressed. United States v. King, 395 U.S. 1, 4 (1969). Further, Federal Rule of Civil Procedure 13 governing counterclaims provides that the rules to not expand the right to assert a counterclaim . . . against the United States or a United States officer or agency. Fed. R. Civ. P.

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13(d). In other words, the requirement that the United States must consent to be sued also applies to counterclaims. United States v. Timmons, 672 F.2d 1373, 1378-79 (11th Cir. 1982). Further, though the United States may impliedly waive immunity by initiating an action, a defendant could only assert counterclaims that arise out of the same transaction or occurrence that is the subject matter of the governments suit. Id. at 1379-80. Here, none of the counterclaims arise out of the same transaction or occurrence as the allegations in the governments suitthat the domain names are subject to forfeiture because they have been used to commit criminal copyright violations. Of the Claimants four counts, at least three must be dismissed for lack of subject matter jurisdiction. No statutory cause of action exists for Trespass to Chattels, and the United States has not consented to be sued under the terms of a statute. Likewise, no statutory waiver of immunity exists for a First or Fourth Amendment claim against the United States. As for these alleged constitutional violations, the only conceivable basis for the Courts subject matter jurisdiction is Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), under which an individual may bring a cause of action against a federal agent who, while acting under the color of federal law, has violated the constitutional rights of [the] individual. Hardison v. Cohen, 375 F.3d 362, 1264 (11th Cir. 2004). Bivens actions are brought directly under the Constitution, but damages can be obtained only when (1) the plaintiff has no alternative means of

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obtaining redress, and (2) no special factors counseling hesitation are present. Id. In essence, a plaintiff must meet heightened pleading requirements to even pursue a claim under Bivens. See id. Under this standard, the Claimants First and Fourth Amendment counterclaims are grossly deficient and must be dismissed. Claimants only count that possibly survives sovereign immunity analysis is his Privacy Protection Act claim. Though 42 U.S.C. 2000aa-6 does allow for a cause of action against the United States by a person aggrieved by an officers search and seizure of materials possessed by a person reasonably believed to have a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication in connection with an investigation or prosecution for a criminal offense, 42 U.S.C. 2000aa-6(d) provides that the remedy against the United States under this cause of action is exclusive of any other civil action or proceeding for conduct constituting a violation of the statute. Because Claimants counts all appear to be based on the same conductthe illegality of a search and seizure of his computer equipment pursuant to a federal search warranta cause of action under 42 U.S.C. 2000aa would be his exclusive remedy for the conduct alleged and his three other counts could not be maintained.1

Even if Claimants Privacy Protection Act claim survived sovereign immunity analysis, for the reasons set forth in Section A above his claim is properly addressed in a separate suit, not in an in rem civil forfeiture action. See 7

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Notwithstanding, courts have dismissed counterclaims in civil forfeiture actions on the basis that the claimant has not met his burden of establishing that his counterclaim falls within an express waiver of sovereign immunity. E.g., United States v. Real Property Located at Layton, No. 1:07-CV-006 TS, 2007 WL 2572385, *1 (D. Utah Sept. 5, 2007) (dismissing counterclaims in a civil forfeiture action because the claimants failed to establish that their counterclaims fell within an unequivocally expressed waiver of sovereign immunity); $10,000 in U.S. Funds, 863 F. Supp. at 815-16 (same). Because the Claimant has neither pointed to any statutory waiver of sovereign immunity on any of his claims nor alleged any reason why the United States would not be immune from liability here, the counterclaims should be dismissed. C. Failure to State a Claim upon which Relief Can Be Granted

Notwithstanding the above fatal defects, the Court should also dismiss the counterclaims because they fail to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). Although courts should construe a pro se plaintiffs pleadings liberally and hold a pro se plaintiff to a less stringent standard than pleadings drafted by an attorney, Hughes v. Lott, 350 F.3d 1157, 1160 (11th Cir. 2003), pro se litigants

1866.75 Bd. Ft., 2008 WL 839792 at *3 (explaining that any permissible claim a claimant has against the government must be filed as a separate suit, not in the in rem forfeiture action). And as detailed in Part C, supra, none of the Claimants claims state a basis upon which relief can be granted. 8

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must still follow the procedural rules, and the court is not required to rewrite a deficient pleading. GJR Invests., Inc. v. County of Escambia, 132 F.3d 1359, 1369 (11th Cir. 1998). Additionally, although the court must accept a plaintiffs factual allegations as true and construe them in the light most favorable to him, Spain v. Brown & Williamson Tobacco Corp., 363 F.3d 1183, 1187 (11th Cir. 2004), the pro se litigant must also allege enough to raise a right to relief above the speculative level. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007); Conley v. Gibson, 355 U.S. 41, 47 (1957). Here, the Claimants counterclaims fail to follow the pleading requirements and fail to set forth any legal or factual basis to sustain such claims. The counterclaims fail to comply with Rule 8, Federal Rules of Civil Procedure, which provides that a complaint shall contain . . . (2) a short and plain statement of the claim showing that the pleader is entitled to relief. . . . Fed. R. Civ. P. 8(a)(2). This requirement ensures that the defendant is given fair notice of what the claim is and the grounds upon which it rests. Conley, 355 U.S. at 47. To meet this standard, a plaintiff must allege more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Twombley, 550 U.S. at 555. The Claimant appears to allege four counts against the United States: a First Amendment violation, a Fourth Amendment violation, a Privacy Protection Act violation, and Trespass to Chattels. (Doc. 15 at 15). Yet the counterclaims

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rest entirely on conclusions that are legally and factually insufficient to sustain any of those claims. The Preliminary Statement, which consists of eight lengthy paragraphs, attempts to articulate the Claimants contentions with the execution of a federal search warrant at the Claimants residence on April 20, 2010. (Doc. 15 at 9-12). Indeed, Count II of the counterclaim purports to sue the United States for a violation of the Claimants Fourth Amendment rights. As previously discussed in Part B above, the Claimants remedy for a Fourth Amendment violation is a Bivens action. Further, a claim for unlawful search and seizure in a civil forfeiture action is properly raised through a motion to suppress, not a counterclaim. See Suppl Rule G(8)(a) (creating a statutory right for a party with standing to move to suppress illegally seized evidence in a civil forfeiture case); United States v. $80,633.00, 512 F. Supp. 2d 1196, 1202 (M.D. Ala. 2007), affd, 340 F. Appx 579 (11th Cir. Aug. 7, 2009) (a motion to suppress is the proper means of challenging the legality of a search and seizure in a civil forfeiture action). In any event, the Claimant fails to plead any facts regarding a Fourth Amendment violation that would entitle him to relief. Moreover, the Claimants Privacy Protection Act claim under 42 U.S.C. 2000aa must be dismissed because a cause of action under this statute fails if there was probable cause to believe that the person possessing the materials had committed or was committing the criminal offense to which the materials relate. 42 U.S.C. 2000aa(a)(1). The April 20, 2010 search and seizure was

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conducted pursuant to a federal search warrant, and the Claimant does not allege any fact that would render the warrant or the officers reliance on it invalid. Indeed, it is impossible to decipher exactly what conduct of the United States the Claimant alleges violated the First Amendment, Fourth Amendment, and the Privacy Protection Act, or what conduct of the United States constituted a Trespass to Chattels. The Claimant includes lengthy Factual Allegations Related to All Counts, which appear to contest the forfeiture of the defendant domain names but contain no facts that would support any cause of action against the United States. Not only does he fail to set out a short and plain statement of the claim showing that he is entitled to relief, but the Claimant fails to even include a recitation of the elements for any of the alleged causes of action. Accordingly, the United States respectfully moves for the dismissal of the counterclaims under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted.

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III.

Conclusion For the foregoing reasons, the United States respectfully requests that the

Court dismiss with prejudice Claimant Harts Counterclaim for Injunctive and Declaratory Relief and for Damages.

Respectfully submitted, A. BRIAN ALBRITTON United States Attorney s/Josephine W. Thomas JOSEPHINE W. THOMAS Assistant United States Attorney Florida Bar No. 31435 400 North Tampa Street, Suite 3200 Tampa, Florida 33602 (813) 274-6086 - telephone (813) 274-6220 - facsimile E-mail: josie.thomas@usdoj.gov

By:

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CERTIFICATE OF SERVICE I hereby certify that on August 30, 2010, I electronically filed the foregoing with the Clerk of the Court by using the CM/ECF system which will send a notice and copy of the electronic filing to the following: Gregory Steven Hart 3428 Erhlich Road Tampa, Florida 33618 s/Josephine W. Thomas JOSEPHINE W. THOMAS Assistant United States Attorney

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