Case 2:15-cv-05820 Document 1 Filed 07/31/15 Page 1 of 18 Page ID #:1 1 2 3 4 5 6 7 8 9 Colin H. Murray, State Bar No. 159142 Baker & McKenzie LLP Two Embarcadero Center, 11th Floor San Francisco, CA 94111-3802 Telephone: +1 415 576 3000 Facsimile: +1 415 576 3099 Email: colin.murray@bakermckenzie.com Brian L. Whisler, Pro Hac Vice To Be Filed Baker & McKenzie LLP 815 Connecticut Avenue, NW Washington, DC 20006-4078 Telephone: +1 202 452 7019 Facsimile: +1 202 452 7075 Email: brian.whisler@bakermckenzie.com Attorneys for Plaintiff SAEKI CO., LTD. 10 11 UNITED STATES DISTRICT COURT 12 CENTRAL DISTRICT OF CALIFORNIA 13 14 15 Case No. 2:15-CV-005820 SAEKI CO., LTD, a Japanese Corporation, COMPLAINT FOR EQUITABLE RELIEF AND DAMAGES Plaintiff, v. 24 1) REPLEVIN; 2) THE RETURN OF WRONGFULLY AND UNLAWFULLY SEIZED PROPERTY PURSUANT TO FEDERAL RULE OF CRIMINAL PROCEDURE 41(g); 3) VIOLATION OF SUBSTANTIVE DUE PROCESS; 4) VIOLATION OF PROCEDURAL DUE PROCESS; 5) CONVERSION; and 6) CLAIM AND DELIVERY. 25 DEMAND FOR JURY TRIAL 16 17 18 19 20 21 22 23 THE UNITED STATES OF AMERICA; U.S. CUSTOMS AND BORDER PROTECTION; and THE DEPARTMENT OF HOMELAND SECURITY, Defendants. 26 27 28 Baker & McKenzie LLP Two Embarcadero Center, 11th Floor San Francisco, CA 94111 +1 415 576 3000 Case No 2:15-CV-005820 COMPLAINT FOR EQUITABLE RELIEF AND DAMAGES Case 2:15-cv-05820 Document 1 Filed 07/31/15 Page 2 of 18 Page ID #:2 1 Plaintiff, Saeki Co., Ltd., by and through undersigned counsel, hereby files this 2 Complaint for the return of its wrongfully and unlawfully seized property against 3 Defendants the United States of America, U.S. Customs and Border Protection 4 (“CBP”), and the Department of Homeland Security (“DHS”) (collectively, the 5 “Government”), and states in support of this Complaint the following: PARTIES 6 7 1. Plaintiff is a vehicle dealer whose primary business consists of 8 purchasing automobiles in the United States and other markets, and reselling those 9 vehicles in Japan. Plaintiff is a Japanese corporation headquartered in Tokyo. 10 11 12 2. Defendant United States of America is the proper defendant in an action seeking recovery of property, damages, and attorneys’ fees. 3. Defendant CBP is a federal law enforcement agency charged with, among 13 other responsibilities, regulating and facilitating international trade. As part of CBP’s 14 enforcement mandate, CBP conducts operations on-site at the Los Angeles/Long 15 Beach Seaport located in San Pedro Bay, Los Angeles, California. 16 17 4. Defendant DHS is a cabinet department of the United States federal government, whose oversight responsibilities include CBP. JURISDICTION AND VENUE 18 19 20 21 5. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. § 1331 and, alternatively, 28 U.S.C. § 1346. 6. This Court is the proper venue for this proceeding under 28 U.S.C. § 22 1391(b)(2) because the Government seized Plaintiff’s property, the subject of this 23 action, at the Los Angeles/Long Beach Seaport, which is located within the judicial 24 district of this Court. 25 26 7. Furthermore, this Court is the proper venue for this proceeding under Federal Rule of Criminal Procedure 41(g), which provides that a “person aggrieved by 27 28 1 Baker & McKenzie LLP Two Embarcadero Center, 11th Floor San Francisco, CA 94111 +1 415 576 3000 Case No 2:15-CV-005820 COMPLAINT FOR EQUITABLE RELIEF AND DAMAGES Case 2:15-cv-05820 Document 1 Filed 07/31/15 Page 3 of 18 Page ID #:3 1 an unlawful search and seizure of property or by the deprivation of property may 2 move for the property’s return. The motion must be filed in the district where the 3 property was seized.” NATURE OF THE COMPLAINT 4 8. 5 The Government seized eight vehicles owned by Plaintiff with an 6 aggregate value of $895,860.00 at the Los Angeles/Long Beach Seaport on January 3, 7 2013. Attached hereto as Exhibit A is a Notice of the January 3, 2013 seizure at the 8 Los Angeles/Long Beach Seaport issued by CBP on February 20, 2013 in Case No. 9 2013-2704-000385. Similarly, the Government seized one vehicle owned by Plaintiff 10 with a value of $117,325.00 at the Port of Seattle on March 22, 2013. Attached hereto 11 as Exhibit B is a Notice of the March 22, 2013 seizure at the Port of Seattle issued by 12 CBP on April 1, 2013 in Case No. 2013-3001-00009301. 9. 13 The Notices identified above were directed solely to Texas Automobiles, 14 Inc. dba Katcos FL (“Texas Auto”), a vehicle dealer based in the state of Florida, 15 although Plaintiff was and is the sole owner of the vehicles described therein. 10. 16 Plaintiff is contemporaneously filing a materially identical complaint in 17 the United States District Court for the District of Washington for the immediate 18 return of the vehicle seized by CBP at the Seattle Port of Entry. 11. 19 Plaintiff has diligently pursued administrative remedies and remedies at 20 law and has suffered unreasonable delay in its efforts to regain its property. Despite 21 these best efforts, Plaintiff’s property remains wrongfully and unlawfully in the 22 possession of the Government after almost two and a half years since the original 23 seizure. 12. 24 There is a limit to the delay Plaintiff must endure and a point at which the 25 Government has deprived Plaintiff of its Constitutional right to due process.1 26 1 27 See United States v. Eight Thousand Eight Hundred & Fifty Dollars ($8,850) in United States Currency, 461 U.S. 555, 565 (1983). 28 2 Baker & McKenzie LLP Two Embarcadero Center, 11th Floor San Francisco, CA 94111 +1 415 576 3000 Case No 2:15-CV-005820 COMPLAINT FOR EQUITABLE RELIEF AND DAMAGES Case 2:15-cv-05820 Document 1 Filed 07/31/15 Page 4 of 18 Page ID #:4 13. 1 By wrongfully withholding Plaintiff’s property for the past two and a half 2 years, the Government has improperly supported manufacturers who wish to 3 monopolize the sale of vehicles in foreign markets at prices well above U.S. market 4 price. 14. 5 The United States District Court for the Southern District of Ohio 6 adjudicated a factually similar case in 2014.2 In its opinion, the court observed “that 7 luxury automobile manufacturers have a long-standing civil dispute with dealers such 8 as ACH [the victim of a seizure similar to that suffered by Plaintiff], because the 9 manufacturers want to protect their ability to sell vehicles in foreign markets at 10 substantially higher prices than the prices charged by franchised dealers in the United 11 States.” The court acknowledged that the United States had not alleged that the dealer 12 in the case had participated in an “illegal export scheme in violation of any export or 13 customs statutes.” Rather, the case involved Government agencies embroiled in an 14 ongoing commercial conflict between vehicle manufacturers and vehicle dealers. The 15 court ordered the United States to immediately return the money and vehicles seized 16 to the vehicle dealer in the matter. 15. 17 The Government, through CBP, DHS, and other agencies, entered into 18 this civil dispute in 2013 on the side of the manufacturers, seizing vehicles at ports 19 across the country.3 However, more recently, courts have ordered the Government to 20 return property seized in this dispute and held for unreasonable lengths of time. 21 22 23 24 25 26 27 2 See United States v. Contents of Wells Fargo Bank Account XXX5826 in the name of Automotive Consultants of Hollywood, Inc., d/b/a Universal Trust d/b/a Automotive Excellence of California, et al, 1:13-cv-716 (S.D. Ohio 2014). For ease of reference, the full text of this order is attached hereto as Exhibit C. 3 See Matthew Goldstein, U.S. Ordered to Return Assets Held in Crackdown of Luxury Carts Exported to China, N.Y. Times, April 3, 2014, available at http://dealbook.nytimes.com/2014/04/03/u-s-ordered-to-return-assets-seized-incrackdown-on-exported-cars/?_r=2. 28 3 Baker & McKenzie LLP Two Embarcadero Center, 11th Floor San Francisco, CA 94111 +1 415 576 3000 Case No 2:15-CV-005820 COMPLAINT FOR EQUITABLE RELIEF AND DAMAGES Case 2:15-cv-05820 Document 1 Filed 07/31/15 Page 5 of 18 Page ID #:5 16. 1 Furthermore, the Government has entered into settlement agreements 2 with dealers and exporters and has indicated its intent to cease such seizures.4 3 Notably, the United States Attorney’s Office for the Middle District of Florida— 4 which had been conducting a grand jury investigation of the instant matter—has 5 settled multiple cases involving seized vehicles by returning the vehicles outright.5 17. 6 Despite the Government’s change in policy, Plaintiff has not received 7 administrative relief from CBP nor any communication from the Government 8 justifying its seizure of Plaintiff’s vehicles. 18. 9 Plaintiff’s vehicles were seized by CBP not because of any wrongdoing 10 by Plaintiff, but because of an ill-conceived program by the Government to support a 11 vehicle export monopoly at the expense of the Constitutional rights of Plaintiff and 12 other vehicle exporters. 19. 13 Plaintiff respectfully requests that this Court order the Government to 14 immediately return the seized vehicles to Plaintiff and pay appropriate damages, fees, 15 and expenses as warranted. STATEMENT OF FACTS 16 20. 17 18 owned by Plaintiff with an aggregate value of $1,013,185.00. 21. 19 20 As of this filing, the Government remains in possession of nine vehicles Using the generally accepted average vehicle depreciation rate of 20% in the first model year and 15% in subsequent years, the value of Plaintiff’s property has 21 22 4 23 24 25 26 27 See Matthew Goldstein, Prosecutors Ease Crackdown of Buyers of China-Bound Luxury Cars, N.Y. Times, April 1, 2015, available at http://www.nytimes.com/2015/04/02/business/dealbook/prosecutors-ease-crackdownonbuyers-of-china-bound-luxury-cars.html?_r=0. 5 See, e.g., United States v. 34 Luxury Vehicles, 2:13-cv-793-FtM-38CM (M.D. Fla. 2015); United States v. $795,652.33 in funds seized from Account xxxxxx1607 with East West Bank, in the name of LC Lucky, Inc., 3:13-2624-CMC (D.S.C. 2015); United States v. 2014 Mercedes Benz bearing VIN 4JGDF2EEXEA286419, 3:14-CV00969 (M.D. Tenn. 2014). 28 4 Baker & McKenzie LLP Two Embarcadero Center, 11th Floor San Francisco, CA 94111 +1 415 576 3000 Case No 2:15-CV-005820 COMPLAINT FOR EQUITABLE RELIEF AND DAMAGES Case 2:15-cv-05820 Document 1 Filed 07/31/15 Page 6 of 18 Page ID #:6 1 decreased in value by approximately $375,891.00 since their seizure. This measure 2 increases every day that the Government fails to return the seized vehicles to Plaintiff. 22. 3 4 The government has not filed any criminal case action against Plaintiff, nor provided any legal basis supporting the continued seizure of Plaintiff’s vehicles. 23. 5 Plaintiff purchased the vehicles from Texas Auto through multiple 6 transactions in September and October 2012. Plaintiff sought to export eight of the 7 nine vehicles from the United States to Japan by way of the Los Angeles/Long Beach 8 harbor in January 2013, and sought to export the ninth vehicle by way of the Seattle 9 Port of Entry in March 2013. 24. 10 As a result of Plaintiff’s purchases from Texas Auto, the United States 11 Attorney’s Office for the Middle District of Florida initiated a grand jury investigation 12 regarding Plaintiff’s business activities in Florida. As noted below, the grand jury 13 investigation has now concluded without any charges being filed against Plaintiff. 25. 14 Plaintiff, through counsel, timely submitted Petitions for Administrative 15 Relief (the “Petitions”) with respect to both seizures.6 Plaintiff’s Petition in Case No. 16 2013-2704-000385, filed on May 3, 2013, is attached hereto as Exhibit D. Plaintiff’s 17 Petition in Case No. 2013-3001-00009301, filed on May 30, 2013, is attached hereto 18 as Exhibit E. 26. 19 The Petitions clearly show that Plaintiff acted in conformity with all 20 applicable CBP regulations and procedures when it attempted to export the vehicles to 21 Japan. 27. 22 Based on the Government’s lack of any valid legal basis for the seizures 23 of the vehicles, the Petitions requested, pursuant to 19 C.F.R. § 171.11(b), that the 24 respective CBP Fines, Penalties, and Forfeiture Offices cancel the claims, remit the 25 26 27 6 Pursuant to Section 618 of the Tariff Act of 1930, as amended, and in accordance with Part 171 of the regulations of CBP. 28 5 Baker & McKenzie LLP Two Embarcadero Center, 11th Floor San Francisco, CA 94111 +1 415 576 3000 Case No 2:15-CV-005820 COMPLAINT FOR EQUITABLE RELIEF AND DAMAGES Case 2:15-cv-05820 Document 1 Filed 07/31/15 Page 7 of 18 Page ID #:7 1 forfeiture of the vehicles, and release the vehicles to the custody of a carrier 2 designated by Plaintiff, so that the vehicles could be exported to Plaintiff in Japan. 3 28. Alternatively, the Petitions requested, pursuant to 19 C.F.R. § 171.3(b), in 4 the event CBP was contemplating denial of the Petitions, that Plaintiff be afforded the 5 opportunity to make an oral presentation to CBP officials acting on the Petitions. 6 7 8 9 29. CBP neither released the vehicles nor provided Plaintiff with an opportunity to be heard via an oral presentation or by any other means. 30. Plaintiff established its ownership of the vehicles in the exhibits attached to the Petitions. These exhibits include invoices for the vehicles issued by Texas Auto 10 to Plaintiff and marked as paid and proof of payment for the vehicles in the form of 11 wire transfer records from Plaintiff’s bank, the Bank of Tokyo-Mitsubishi UFJ, Ltd. 12 31. In or about early 2014, Assistant United States Attorney David Lazarus 13 advised Plaintiff’s counsel that the federal grand jury investigation undertaken in the 14 Middle District of Florida had concluded without any criminal charge lodged against 15 Plaintiff or any of its agents. As a result, the administrative forfeiture remained the 16 sole matter for resolution. 17 32. Despite Plaintiff’s efforts to seek administrative relief through the 18 appropriate channels, the Government took no action to address Plaintiff’s Petitions or 19 its requests for relief. 20 33. After waiting for more than one year for the Government to respond, 21 Plaintiff withdrew its Petitions for administrative relief on March 3, 2015. Plaintiff 22 requested the immediate referral of these cases to the appropriate U.S. Attorney for 23 judicial forfeiture proceedings. On May 14, 2015, Plaintiff submitted to CBP the 24 bond forms and cashier’s checks required to perfect the judicial forfeiture. 25 26 27 28 6 Baker & McKenzie LLP Two Embarcadero Center, 11th Floor San Francisco, CA 94111 +1 415 576 3000 Case No 2:15-CV-005820 COMPLAINT FOR EQUITABLE RELIEF AND DAMAGES Case 2:15-cv-05820 Document 1 Filed 07/31/15 Page 8 of 18 Page ID #:8 1 34. As of the date of the filing of this Complaint, no judicial forfeiture 2 proceedings have commenced, nor has the Government provided any indication as to 3 the anticipated timeline for such proceedings. 4 35. Plaintiff has now been denied its property for approximately two and a 5 half years since the original seizure, despite the fact that the Government has not filed 6 any criminal charge against Plaintiff or shown probable cause to support the 7 continuing seizure. 8 9 10 11 36. In addition to being deprived of its rightful property, Plaintiff has also suffered damages because the vehicles have significantly depreciated in value over the past two and a half years. 37. Plaintiff has also suffered damages in the form of lost profits. If Plaintiff 12 had been able to sell these vehicles in Japan as intended in 2013, Plaintiff would have 13 had the capacity to make additional sales. Furthermore, the market for luxury vehicles 14 in Japan has experienced significant decline since 2013. 15 38. Plaintiff has also suffered damages in the form of unnecessary fees and 16 expenses incurred as a result of the Government’s prolonged refusal to address 17 Plaintiff’s rightful claims for administrative relief. 18 FIRST CAUSE OF ACTION 19 Replevin 20 (Against All Defendants) 21 22 23 39. Plaintiff incorporates by reference all of the foregoing paragraphs of this Complaint as if fully set forth herein. 40. Plaintiff brings this claim for replevin, seeking the return of property 24 wrongfully and unlawfully seized by the Government, after exhausting all available 25 administrative remedies and remedies at law. 26 27 28 7 Baker & McKenzie LLP Two Embarcadero Center, 11th Floor San Francisco, CA 94111 +1 415 576 3000 Case No 2:15-CV-005820 COMPLAINT FOR EQUITABLE RELIEF AND DAMAGES Case 2:15-cv-05820 Document 1 Filed 07/31/15 Page 9 of 18 Page ID #:9 41. 1 Replevin is an action to recover wrongfully seized property. A plaintiff 2 pleading for replevin must never relinquish its claim of ownership to the subject 3 property and the defendant must have the power to return the subject property.7 42. 4 On May 3, 2013, Plaintiff, through counsel, submitted a Petition for 5 Administrative Relief with respect to the eight vehicles seized in Long Beach. See 6 Exhibit D. 43. 7 8 This Petition established Plaintiff’s claim of ownership of the eight vehicles with invoices from Texas Auto addressed to Plaintiff and stamped “PAID.” 44. 9 This Petition also included documentation of Plaintiff’s transfer of funds 10 from its bank, The Bank of Tokyo-Mitsubishi UFJ, Ltd., to Texas Auto, establishing 11 that Plaintiff had paid for the vehicles in full. 45. 12 13 Administrative Relief with respect to the vehicle seized in Seattle. See Exhibit E. 46. 14 15 On May 30, 2013, Plaintiff, through counsel, submitted a Petition for This Petition established Plaintiff’s claim of ownership of the vehicle with an invoice from Texas Auto addressed to Plaintiff. 47. 16 This Petition also included documentation of Plaintiff’s transfer of funds 17 from its bank, The Bank of Tokyo-Mitsubishi UFJ, Ltd., to Texas Auto, establishing 18 that Plaintiff had paid for the vehicle in full. 48. 19 Nearly one year later, on May 16, 2014, Plaintiff, through counsel, sent 20 letters to Ms. Marcia Kass, a Paralegal Specialist at CBP’s Fines, Penalties, and 21 Forfeitures Office in Long Beach, and Ms. Paulette Dole, a Paralegal Specialist at 22 CBP’s Fines, Penalties, and Forfeitures Office in Seattle, following up on the status of 23 the Petitions. Although nearly one year had passed since Plaintiff had submitted the 24 Petitions, Plaintiff had still not received a decision regarding administrative relief, nor 25 a status update from CBP. 26 7 27 See Xerox Corp. v. A & M Printing, 2013 WL 2180927, at *5 (C.D. Cal. May 20, 2013). 28 8 Baker & McKenzie LLP Two Embarcadero Center, 11th Floor San Francisco, CA 94111 +1 415 576 3000 Case No 2:15-CV-005820 COMPLAINT FOR EQUITABLE RELIEF AND DAMAGES Case 2:15-cv-05820 Document 1 Filed 07/31/15 Page 10 of 18 Page ID #:10 1 2 3 49. Plaintiff did not receive any response from Ms. Kass, Ms. Dole, or any other agent or employee of CBP in Long Beach or Seattle. 50. On March 2, 2015, Plaintiff, through counsel, sent notice of its 4 withdrawal of the Petitions and its election of judicial forfeiture proceedings to the 5 Honorable R. Gil Kerlikowske, Commissioner of CBP, and to the attention of Ms. 6 Kass in Long Beach and Ms. Dole in Seattle. 7 51. These requests reasserted Plaintiff’s ownership of the vehicles, and 8 included the above-referenced invoices and documentation of the transfer of funds 9 from Plaintiff to Texas Auto. 10 52. Plaintiff’s property has been wrongfully seized by the Government. CBP 11 alleged in the Long Beach seizure notice that Plaintiff had submitted false or 12 misleading information to CBP and misrepresented the vehicles as “used.” However, 13 Plaintiff properly declared the vehicles as new vehicles where appropriate—and as 14 used vehicles where appropriate—In accordance with the applicable laws and 15 practices of CBP. Therefore, there was no violation by Plaintiff to justify CBP’s 16 seizure of the vehicles. 17 53. Plaintiff’s counsel has been informed by AUSA Lazarus that Plaintiff is 18 not the target of any pending criminal proceeding related to the seizure of the vehicles, 19 and that the grand jury investigation has concluded. Therefore, there is no longer any 20 parallel criminal proceeding in this matter. 21 22 23 54. Despite the foregoing, the Government continues to hold Plaintiff’s property while offering no legal justification for doing so. 55. Plaintiff’s efforts to obtain administrative relief have failed to move the 24 Government toward a disposition of this matter. Furthermore, Plaintiff’s requests for 25 immediate judicial forfeiture have failed to elicit any response from the Government. 26 27 28 9 Baker & McKenzie LLP Two Embarcadero Center, 11th Floor San Francisco, CA 94111 +1 415 576 3000 Case No 2:15-CV-005820 COMPLAINT FOR EQUITABLE RELIEF AND DAMAGES Case 2:15-cv-05820 Document 1 Filed 07/31/15 Page 11 of 18 Page ID #:11 56. 1 By continually asserting and reasserting its ownership of the vehicles 2 seized by CBP, Plaintiff has never relinquished its claim to the subject property of this 3 suit. The Government has the power to return the vehicles to Plaintiff, but has 4 deprived Plaintiff of any and all available administrative relief and remedies at law. 5 SECOND CAUSE OF ACTION 6 Wrongfully And Unlawfully Seized Property Pursuant To Federal Rule Of 7 Criminal Procedure 41(G) 8 (Against All Defendants) 57. 9 10 Complaint as if fully set forth herein. 58. 11 12 Plaintiff incorporates by reference all of the foregoing paragraphs of this This Court has equitable jurisdiction to entertain Federal Rule of Criminal Procedure 41(g) motions in civil cases when there is no other available remedy.8 59. 13 Federal Rule of Criminal Procedure 41(g) states that a “person aggrieved 14 by an unlawful search and seizure of property or by the deprivation of the property 15 may move for the property’s return.” 60. 16 There is no criminal indictment or charge pending against Plaintiff nor 17 any of its directors or principals. Therefore, this claim rests on the Court’s equitable 18 jurisdiction. 61. 19 The Government’s meritless seizure of Plaintiff’s property, the 20 unreasonable delay in responding to Plaintiff’s Petitions for administrative relief, and 21 the unreasonable delay in commencing judicial forfeiture proceedings are evidence of 22 the Government’s disregard for fundamental notions of due process. 62. 23 Plaintiff’s primary business is the purchase of automobiles in the United 24 States and other markets, and the resale of such vehicles in Japan. Therefore, Plaintiff 25 is in need of the unlawfully seized vehicles to engage in its primary business. The 26 8 27 See In re Seizure of One Blue Nissan Skyline Auto, 2009 WL 348867, at *1 (C.D. Cal. Oct. 21, 2009). 28 10 Baker & McKenzie LLP Two Embarcadero Center, 11th Floor San Francisco, CA 94111 +1 415 576 3000 Case No 2:15-CV-005820 COMPLAINT FOR EQUITABLE RELIEF AND DAMAGES Case 2:15-cv-05820 Document 1 Filed 07/31/15 Page 12 of 18 Page ID #:12 1 continued unlawful deprivation of Plaintiff’s property has caused, and will continue to 2 cause, undue and unjust economic harm if allowed to persist. 3 THIRD CAUSE OF ACTION 4 Violation Of Substantive Due Process 5 (Against All Defendants) 63. 6 7 Plaintiff incorporates by reference all of the foregoing paragraphs of this Complaint as if fully set forth herein. 64. 8 Plaintiff has a property interest in the vehicles seized by CBP. As 9 demonstrated by the Exhibits attached to this Complaint, Plaintiff lawfully owns the 10 vehicles at issue and has never relinquished its claim of ownership. The Government 11 has deprived Plaintiff of this constitutionally protected interest by wrongfully seizing 12 Plaintiff’s vehicles and by continuing to withhold them for approximately two and a 13 half years, and long after the conclusion of the criminal investigation in Florida. 65. 14 Plaintiff has a liberty interest in pursuing its vehicle resale business 15 without undue interference by the Government. The Government has deprived 16 Plaintiff of this constitutionally protected interest by preventing Plaintiff from 17 exporting and selling its lawfully-owned vehicles. 66. 18 The seizure of Plaintiff’s property by the Government without due 19 process is arbitrary, irrational, and inconsistent with the due process protections 20 afforded by the Fifth and Fourteenth Amendments to the U.S. Constitution. 67. 21 22 that such vehicle seizures are not in the public interest.9 68. 23 24 The Government has stated on the record in recent factually-similar cases The Government has not filed any criminal charge nor made a showing of probable cause to support the continuing seizure of Plaintiff’s property. 25 9 26 27 In a factually similar Middle District of Florida case, the Government asserted that “it will not be in the public interest to pursue this action.” See United States v. 34 Luxury Vehicles, 2:13-cv-793-FtM-38CM (M.D. Fla. 2015) 28 11 Baker & McKenzie LLP Two Embarcadero Center, 11th Floor San Francisco, CA 94111 +1 415 576 3000 Case No 2:15-CV-005820 COMPLAINT FOR EQUITABLE RELIEF AND DAMAGES Case 2:15-cv-05820 Document 1 Filed 07/31/15 Page 13 of 18 Page ID #:13 69. 1 The Government has not provided Plaintiff with any reason for the 2 continued seizure of Plaintiff’s property. Plaintiff has been left to speculate about the 3 reason why the Government continues to hold its property. 70. 4 There has been no showing and there is no evidence supporting the 5 Government’s continued seizure of Plaintiff’s property, thereby causing Plaintiff to 6 continue to suffer the deprivation of its property and the economic hardship caused by 7 this inexplicable Government action. 71. 8 The notion that any person or company could be forced to endure the loss 9 of its property, by Government seizure, for two and a half years without justification 10 or cause offends all notions of due process and fundamental fairness under the rule of 11 law. 12 FOURTH CAUSE OF ACTION 13 Violation Of Procedural Due Process 14 (Against All Defendants) 15 16 17 72. Plaintiff incorporates by reference all of the foregoing paragraphs of this Complaint as if fully set forth herein. 73. Procedural due process guarantees that Plaintiff must be afforded notice 18 and a meaningful opportunity to be heard before the Government can deprive Plaintiff 19 of a constitutionally protected interest. 20 74. The Government has not provided adequate notice to Plaintiff. Although 21 the Government did notify Plaintiff that its vehicles were being seized in 2013, the 22 Government has not provided any notice to Plaintiff explaining why the seizure has 23 continued long after the conclusion of the criminal investigation in Florida. 24 25 75. The Government has not provided any opportunity for Plaintiff to be heard with respect to the seizure of its vehicles. Plaintiff has requested the 26 27 28 12 Baker & McKenzie LLP Two Embarcadero Center, 11th Floor San Francisco, CA 94111 +1 415 576 3000 Case No 2:15-CV-005820 COMPLAINT FOR EQUITABLE RELIEF AND DAMAGES Case 2:15-cv-05820 Document 1 Filed 07/31/15 Page 14 of 18 Page ID #:14 1 opportunity to make an oral presentation to CBP regarding the seizure, but CBP has 2 not responded to Plaintiff’s request. 76. 3 Plaintiff has pursued every available avenue to be heard on the matter of 4 CBP’s seizure. Plaintiff has filed Petitions for Administrative Relief with the 5 appropriate CBP field offices and has elected to proceed with judicial forfeiture. 6 These avenues are clearly not “meaningful” opportunities to be heard within the scope 7 of the guarantees of procedural due process, as the Government has never responded 8 to any of Plaintiff’s Petitions or requests. 77. 9 As of the date of the filing of this Complaint, the Government has still not 10 responded to Plaintiff’s Petition for Administrative Relief nor its election to proceed 11 with judicial forfeiture. 78. 12 The process owed to Plaintiff is defined by a balancing test that weighs 13 the burdens that a requested procedure would impose upon the Government against 14 the private interest at stake and the risk of an erroneous deprivation combined with the 15 value, if any, of additional procedural safeguards.10 79. 16 The burden on the Government of conducting an oral hearing with 17 respect to Plaintiff’s seized vehicles—at any time over the past two and a half years— 18 is far outweighed by the importance of Plaintiff’s deprived interests, the risk of 19 erroneous deprivation, and the value of additional procedural safeguards. 80. 20 Plaintiff’s interest at stake is more than $1 million worth of lawfully- 21 owned property which is essential to Plaintiff’s primary business. Plaintiff has, in 22 fact, suffered an erroneous deprivation in this case. The value of an oral hearing 23 would be substantial as Plaintiff would easily be able to demonstrate during a hearing 24 that CBP’s seizure is wrongful and that Plaintiff’s property should be returned to it. 25 26 10 27 Mathews v. Eldridge, 424 U.S. 319, 335 (1976). 28 13 Baker & McKenzie LLP Two Embarcadero Center, 11th Floor San Francisco, CA 94111 +1 415 576 3000 Case No 2:15-CV-005820 COMPLAINT FOR EQUITABLE RELIEF AND DAMAGES Case 2:15-cv-05820 Document 1 Filed 07/31/15 Page 15 of 18 Page ID #:15 1 81. The Government’s silence and failure to provide Plaintiff with any means 2 to be heard in order to regain possession of its property runs counter to fundamental 3 notions of due process. 4 FIFTH CAUSE OF ACTION 5 Conversion 6 (Against All Defendants) 7 8 9 82. Plaintiff incorporates by reference all of the foregoing paragraphs of this Complaint as if fully set forth herein. 83. Plaintiff has established its ownership and immediate right to possession 10 of the vehicles in the foregoing paragraphs and in the documentation attached hereto 11 as Exhibits A through E. 12 84. The Government intentionally and substantially interfered with Plaintiff’s 13 ownership and right to possess the vehicles by refusing to return the vehicles to 14 Plaintiff after the criminal investigation in Florida ended and Plaintiff demanded their 15 immediate return. 16 85. The Government continues to intentionally and substantially interfere 17 with Plaintiff’s ownership and right to possess the vehicles by preventing Plaintiff 18 from having access to the vehicles on an ongoing basis. 19 20 21 86. Plaintiff has never consented, and does not now consent, to the Government’s continued seizure of the vehicles. 87. Plaintiff has suffered significant monetary damages as a result of the 22 Government’s wrongful interference with its property. Plaintiff has been deprived of 23 property with an aggregate value of $1,013,185.00 for approximately two and a half 24 years. Over the course of the Government’s unlawful conversion, Plaintiff’s property 25 has depreciated by $375,891.00 as of the date of this filing. 26 27 28 14 Baker & McKenzie LLP Two Embarcadero Center, 11th Floor San Francisco, CA 94111 +1 415 576 3000 Case No 2:15-CV-005820 COMPLAINT FOR EQUITABLE RELIEF AND DAMAGES Case 2:15-cv-05820 Document 1 Filed 07/31/15 Page 16 of 18 Page ID #:16 1 88. Plaintiff has suffered lost profits due its inability to sell the seized 2 vehicles. If Plaintiff had been able to sell the vehicles as intended in 2013, Plaintiff 3 would have had the capacity to make additional sales. 4 89. Plaintiff has incurred significant fees and expenses through its efforts to 5 recover its vehicles through the proper administrative channels. If the Government 6 had returned Plaintiff’s vehicles after the criminal investigation in Florida ended, 7 Plaintiff would not have incurred these fees and expenses. Plaintiff is therefore 8 entitled to recover those costs as damages. 9 SIXTH CAUSE OF ACTION 10 Claim & Delivery 11 (Against All Defendants) 12 13 14 90. Plaintiff incorporates by reference all the foregoing paragraphs of this Complaint as if fully set forth herein. 91. Cal. Civ. Code § 3379 provides that a person is entitled to the immediate 15 possession of their property and may recover their property in the manner provided 16 by Cal. CCP. § 512.010. 17 92. Plaintiff has established its ownership of the vehicles in the foregoing 18 paragraphs and rests its claim of immediate right to possession of the vehicles on the 19 facts asserted. The attached Exhibits include sufficient documentation to satisfy the 20 requirement of Cal. CCP. § 512.010 (b)(1). 21 93. Plaintiff has established that CBP wrongfully seized the vehicles and that 22 CBP’s continued seizure has no basis and support under the any law. The attached 23 Exhibits, and foregoing facts, demonstrate that CBP has wrongfully detained 24 Plaintiff’s property. The foregoing facts and attached Exhibits include sufficient 25 documentation to satisfy the requirement of Cal. CCP. § 512.010 (b)(2). 26 27 28 15 Baker & McKenzie LLP Two Embarcadero Center, 11th Floor San Francisco, CA 94111 +1 415 576 3000 Case No 2:15-CV-005820 COMPLAINT FOR EQUITABLE RELIEF AND DAMAGES Case 2:15-cv-05820 Document 1 Filed 07/31/15 Page 17 of 18 Page ID #:17 94. 1 The attached Exhibits include a particular description of each vehicle 2 seized by CBP, and include the respective value of each vehicle. In sum, the 3 Government remains in possession of nine (9) vehicles owned by Plaintiff with an 4 aggregate value of $1,013,185. 5 95. Plaintiff is not aware of the location of the vehicles at this time. 6 96. The vehicles have not been seized for a tax assessment or a related fine, 7 nor were the vehicles seized under an execution against the property of the Plaintiff. PRAYER FOR RELIEF 8 WHEREFORE, Plaintiff respectfully requests that this Court grant the 9 10 following relief: 11 A. An Order commanding the Government to immediately return Plaintiff’s 12 property and to pay damages for the depreciation in value of the vehicles during 13 the time they have been wrongfully seized, equaling $375,891.00; B. 14 Alternatively, an Order commanding the Government to immediately 15 deliver to Plaintiff the liquidated value of the seized vehicles at the time of the 16 wrongful seizure, equaling $1,013,185.00, plus interest; C. 17 18 favor of Plaintiff in an amount to be determined at trial; D. 19 20 An Order granting compensatory damages against the Government and in An Order awarding reasonable attorneys’ fees, costs, and disbursements against the Government and in favor of Plaintiff; and E. 21 An Order awarding Plaintiff such further relief as the Court may deem 22 just, equitable, and proper. 23 /// 24 25 /// 26 27 28 16 Baker & McKenzie LLP Two Embarcadero Center, 11th Floor San Francisco, CA 94111 +1 415 576 3000 Case No 2:15-CV-005820 COMPLAINT FOR EQUITABLE RELIEF AND DAMAGES Case 2:15-cv-05820 Document 1 Filed 07/31/15 Page 18 of 18 Page ID #:18 1 2 Respectfully submitted, Dated: July 31, 2015 BAKER & MCKENZIE LLP 3 4 By:/s/ Colin H. Murray Colin H. Murray Brian L. Whisler Attorneys for Plaintiff SAEKI CO., LTD. 5 6 7 8 9 DEMAND FOR JURY TRIAL 10 11 12 Plaintiff hereby demands a jury trial as provided by Rule 38(a) of the Federal Rules of 13 Civil Procedure. 14 15 16 Respectfully submitted, Dated: July 31, 2015 BAKER & MCKENZIE LLP 17 18 19 20 By:/s/ Colin H. Murray Colin H. Murray Brian L. Whisler Attorneys for Plaintiff SAEKI CO., LTD. 21 22 23 24 25 26 27 28 17 Baker & McKenzie LLP Two Embarcadero Center, 11th Floor San Francisco, CA 94111 +1 415 576 3000 Case No 2:15-CV-005820 COMPLAINT FOR EQUITABLE RELIEF AND DAMAGES