Case 3:17-cv-00500-JLS-WVG Document 16 Filed 05/22/17 PageID.

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WADE V. DAVIES, TN Bar No. 016052, admitted pro hac vice

606 W. Main Street, Suite 300
Knoxville, TN 37902
Telephone: (865) 637-0661
Email: wdavies@rddjlaw.com
Attorney for Claimant Ashley B. Collins

DAVID M. GARVIN, FL Bar. No. 347736, admitted pro hac vice

200 South Biscayne Blvd., Suite 3150
Miami, FL 33131
(305) 371-8101
Email: ontrial2@gmail.com
Attorney for Claimants Jimmy Collins and Collins Family Farms, LLC

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF CALIFORNIA

UNITED STATES OF AMERICA, )

)
Plaintiff, )
v. )
)
REAL PROPERTY KNOWN AS 5904 & )
5908 GRASSHOPPER ROAD, )
BIRCHWOOD, TENNESSEE )
)
REAL PROPERTY KNOWN AS 2520, )
2522, 2424, 2538 KEITH STREET NW, ) Case No.: 3:17-cv-00500-JLS-WVG
CLEVELAND, TENNESSEE, )
)
REAL PROPERTY KNOWN AS BAKER ) NOTICE OF MOTION AND
LANE & BLYTHE FERRY LANE, ) CLAIMANTS JOINT MOTION
PARCELS 071-048.04 & 072-105 IN ) TO DISMISS THE
BIRCHWOOD, TENNESSEE, ) GOVERNMENTS COMPLAINT
) FOR FORFEITURE
REAL PROPERTY KNOWN AS 3601 )
BLYTHE FERRY LANE IN ) DATE: JULY 20, 2017
BIRCHWOOD, TENNESSEE, ) TIME: 1:30 P.M.
)
INCLUDING ALL APPURTENANCES, ) COURTROOM
IMPROVEMENTS, AND ATTACHMENTS ) 4D
THEREON. )
)
Defendants. )
______________________________________________
Case 3:17-cv-00500-JLS-WVG Document 16 Filed 05/22/17 PageID.86 Page 2 of 3

TO: BENJAMIN KATZ, Assistant United States Attorney and MARK PLETCHER,
Assistant United States Attorney:
PLEASE TAKE NOTICE that on July 20, 2017, at 1:30 p.m., or as soon thereafter as

counsel may be heard, Claimants, Jimmy Collins, Ashley Collins, and Collins Family Farms, by

and through undersigned counsel will move this Honorable Court for an Order dismissing the

governments Complaint for Forfeiture pursuant to Rule 12(b) of the Federal Rules of Civil

Procedure and Rule G of the Supplemental Rules for Admiralty or Maritime Claims and Asset

Forfeiture Actions.

CLAIMANTS JIMMY COLLINS, ASHLEY COLLINS, AND COLLINS FAMILY

FARMS, LLCS JOINT MOTION TO DISMISS THE GOVERNMENTS COMPLAINT
FOR FORFEITURE

Come the Claimants, Jimmy Collins, Ashley Collins, and Collins Family Farms, LLC, by

and through undersigned counsel, pursuant to Rule 12(b) of the Federal Rules for Civil Procedure

and Rule G of the Supplemental Rules, and hereby moves this Honorable Court for an Order

dismissing the governments Complaint for Forfeiture against the Defendant properties on the

grounds that the Complaint fails to state a claim up which relief can be granted, does not

sufficiently state detailed facts to support a reasonable belief that that the government will be able

to meet its burden of proof at trial, lack of both subject matter and in rem jurisdiction, and improper

venue.

This Motion is based on the instant Notice of Motion and Motion, the accompanying

Memorandum of Points and Authorities, the records and files of this Court, any matter of which

the Court may take judicial notice, and such further evidence and argument as may be presented

at or before the hearing on this matter.

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Respectfully submitted this 22nd day of May, 2017.

RITCHIE, DILLARD, DAVIES & JOHNSON, P.C.

/s/ Wade V. Davies

WADE V. DAVIES
606 W. Main Street, Suite 300
Knoxville, TN 37902
(865) 637-0661
wdavies@rddjlaw.com
Counsel for Ashley Collins

/s/ David M. Garvin

DAVID M. GARVIN
200 South Biscayne Blvd., Suite 3150
Miami, FL 33131
(305) 371-8101
ontrial2@gmail.com
davidmgarvin.com
Counsel for Jimmy Collins and Collins
Family Farms, LLC

CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and exact copy of the foregoing has
been filed electronically this 22nd day of May, 2017. Notice of this filing will be sent by operation
of the Courts electronic filing system to all parties indicated on the electronic filing receipt. Parties
may access this filing through the Courts electronic filing system. A copy has also been forwarded
via electronic transmission to:
Benjamin J. Katz
Assistant United States Attorney
Southern District of California
Benjamin.Katz@usdoj.gov

Mark Pletcher
Assistant United States Attorney
Southern District of California
Mark.Pletcher@usdoj.gov
Wade V. Davies

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Case 3:17-cv-00500-JLS-WVG Document 16-1 Filed 05/22/17 PageID.88 Page 1 of 10

WADE V. DAVIES, TN Bar No. 016052, admitted pro hac vice

606 W. Main Street, Suite 300
Knoxville, TN 37902
Telephone: (865) 637-0661
Email: wdavies@rddjlaw.com
Attorney for Claimant Ashley B. Collins

DAVID M. GARVIN, FL Bar. No. 347736, admitted pro hac vice

200 South Biscayne Blvd., Suite 3150
Miami, FL 33131
(305) 371-8101
Email: ontrial2@gmail.com
Attorney for Claimants Jimmy Collins and Collins Family Farms, LLC

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF CALIFORNIA

UNITED STATES OF AMERICA, )

)
Plaintiff, )
v. )
)
REAL PROPERTY KNOWN AS 5904 & )
5908 GRASSHOPPER ROAD, )
BIRCHWOOD, TENNESSEE )
)
REAL PROPERTY KNOWN AS 2520, ) Case No.: 3:17-cv-00500-JLS-WVG
2522, 2424, 2538 KEITH STREET NW, )
CLEVELAND, TENNESSEE, ) MEMORANDUM OF POINTS
) AND AUTHORITIES IN
REAL PROPERTY KNOWN AS BAKER ) SUPPORT OF CLAIMANTS
LANE & BLYTHE FERRY LANE, ) JOINT MOTION TO DISMISS
PARCELS 071-048.04 & 072-105 IN ) THE GOVERNMENTS
BIRCHWOOD, TENNESSEE, ) COMPLAINT FOR
) FORFEITURE
REAL PROPERTY KNOWN AS 3601 )
BLYTHE FERRY LANE IN )
BIRCHWOOD, TENNESSEE, )
)
INCLUDING ALL APPURTENANCES, )
IMPROVEMENTS, AND ATTACHMENTS )
THEREON. )
)
Defendants. )
__________________________________________
Case 3:17-cv-00500-JLS-WVG Document 16-1 Filed 05/22/17 PageID.89 Page 2 of 10

INTRODUCTION

On March 13, 2017, the Government filed a Complaint seeking forfeiture of the Defendant

properties, in which Claimants have bona fide property ownership interests. 1 (Doc. 1). The

Complaint alleges that the properties were involved in the offenses of money laundering and

conspiracy to money launder, and are also properties constituting proceeds traceable to specified

unlawful activity, and should therefore be forfeited to the United States. (Doc. 1, 1, 6). Other

than a reference to unspecified acts as set out in the now sealed Affidavit of Defense Criminal

Investigative Service Special Agent Gina Rouza and the conclusory allegation that the properties

were purchased, acquired, and maintained with proceeds of a health care fraud, the brief 7-

paragraphs of the Complaint contain no facts or details to support the governments claim that the

Defendant properties are subject to forfeiture. 2 (Doc. 1, 5-7). As such, the Complaint fails on

its face to plead conduct sufficient to satisfy the heightened pleading requirements applicable in

forfeiture actions under rules E and G of the Supplemental Rules for Admiralty or Maritime Claims

and Asset Forfeiture (Supplemental Rules). Furthermore, while the Complaint reads [b]y way

of verified complaint..., the Complaint itself does not contain any such verification, as required

by Supplemental Rule G(2)(a). Because the filing of a properly verified complaint is a prerequisite

to obtaining in rem jurisdiction over the Defendant properties, this Court lacks jurisdiction over

this forfeiture action. Claimants further declare that this Court lacks jurisdiction over the

Defendant properties located within the Eastern District of Tennessee and that the Southern

1
Claimants Jimmy Collins, Ashley Collins, and Collins Family Farms, LLC, have each filed
timely Verified Claims of Interest in the Defendant properties. (Docs. 13-15).
2
At the time of the filing of the instant motion, the Sealed Affidavit referenced in the Complaint
has not been made available to Claimants or their counsel. Thus, Claimants do not have any
knowledge regarding the content of this affidavit or any allegations contained therein.
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District of California is not the proper venue in this matter because any and all allegations that they

or the Defendant properties have engaged in or been involved in any type of criminal activity

within the Southern District of California is specifically denied. For these reasons, detailed more

fully below, the governments Complaint for Forfeiture must be dismissed.

ARGUMENT

I. THE COMPLAINT FAILS TO STATE A CLAIM UPON WHICH RELIEF

MAY BE GRANTED AND MUST BE DISMISSED

a. Legal Standards applicable to a Motion to Dismiss for failure to state a claim.

In an in rem forfeiture proceeding, a claimant with standing may move for dismissal under

Rule 12(b) of the Federal Rules of Civil Procedure. Fed. R. Civ. P. Supp. R. G(8)(b)(i). A motion

to dismiss under Rule 12(b)(6) tests the legal sufficiency of the claims asserted in the complaint.

Patel v. Parnes, 253 F.R.D. 531, 544 (C.D. Ca. 2008). Dismissal under Rule 12(b)(6) may be

based on either the lack of a cognizable legal theory or the absence of sufficient facts alleged under

a cognizable legal theory. U.S. v. Real Property Located at 9144 Burnette Rd., 104 F. Supp. 3d

1187, 1189 (W.D. Wa. 2015) (citing Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th

Cir. 1990)). While the court must accept the complaints well-pled facts as true, 'conclusory

allegations of law and unwarranted inferences will not defeat an otherwise proper motion to

dismiss. Vasquez v. L.A. County, 487 F.3d 1246, 1249 (9th Cir. 2007) (quoting Schmeir v. U.S.

Ct. of Appeals, 279 F.3d 817, 820 (9th Cir. 2002)). With limited exceptions, the court should

generally not consider any materials beyond the pleadings in ruling on a Rule 12(b)(6) motion.

In re Immune Response Sec. Litig., 375 F. Supp. 2d 983, 994 (S.D. Ca. 2005) (citing Lee v. City of

L.A., 250 F.3d 668, 688 (9th Cir. 2001)).

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b. Complaints for Forfeiture are subject to a heightened pleading standard than

what is required under Rule 8.

In Ashcroft v. Iqbal, 556 U.S. 662 (2009), and Bell Atlantic v. Twombly, 550 U.S. 544

(2007), the Supreme Court expounded on the pleading requirements necessary to survive a motion

to dismiss for failure to state a claim under Rule 12(b)(6). In order to survive such a motion, the

factual allegations within a complaint must be enough to raise a right to relief above the

speculative level. Twombly, 550 U.S. at 555. A pleading that offers only labels and conclusions,

or a formulaic recitation of the elements of a cause of action, or one that merely sets forth 'naked

assertions devoid of further factual enhancement, will not rise to this level. Iqbal, 556 U.S. at

678 (quoting Twombly, 550 U.S. at 557). The complaint must contain enough facts to state a

claim for relief that is plausible on its face. Twombly, 550 U.S. at 570.

While the plausibility standard announced in Iqbal and Twombly applies in cases that fall

under the purview of Rule 8 of the Federal Rules of Civil Procedure, a complaint in a civil

forfeiture action requires a heightened standard, as set out in the Supplemental Rules. Under

Supplemental Rule E(2)(a), which applies to an action in rem, the complaint shall state the

circumstances from which the claim arises with such particularity that the defendant or claimant

will be able, without moving for a more definite statement, to commence an investigation of the

facts and to frame a responsive pleading. Supplemental Rule G further requires that a Complaint

for Forfeiture must: (1) be verified; (2) state the grounds for both subject-matter and in rem

jurisdiction, and venue; (3) describe the property with reasonable particularity; (4) for tangible

property, state its location where any seizure occurred and -if different- its location when the action

was filed; (5) identify the statute under which the forfeiture action is brought; and (6) state

sufficiently detailed facts to support a reasonable belief that the government will be able to meet

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its burden of proof at trial. 3 Supp. R. G(2)(a)-(f). Thus, the Supplemental Rules require a more

stringent pleading standard than that required by Federal Rule of Civil Procedure 8. See U.S. v. All

Assets Held at Bank Julius Baer & Co., Ltd., 571 F. Supp. 2d 1, 16 (D. D.C. 2008) (The Court

agrees with Claimants that Rule G (and its predecessor Rule E(2)) creates a heightened burden for

pleading on the plaintiff.) (citing Charles Alan Wright, Arthur R. Miller & Richard L. Marcus,

Federal Practice and Procedure 3242 (2d ed. 1997) (Rule E(2) requires a more particularized

complaint than is demanded in civil actions generally... [t]he additional burden of pleading

required added specifics is thought appropriate because of the drastic nature of those remedies.);

U.S. v. One White Crystal Covered Bad Tour Glove, CV 11-3582-GW(SSx), 2012 U.S. Dist.

LEXIS 188539, at * 5 (C.D. Ca. April 12, 2012) (A complaint for forfeiture in rem is subject to

a heightened pleading standard) (citing Fed. R. Civ. P. Supp. R. G(2)(f)).

The heightened pleading requirements under Rules E and G are especially significant when

considering that Government confiscation of private property is disfavored in our constitutional

system. U.S. v. $191,910.00 in U.S. Currency, 16 F.3d 1051, 1068 (9th Cir. 1994), superseded

on other grounds as stated in U.S. v. $80,010 in U.S. Currency, 303 F.3d 1182, 1184 (9th Cir.

2002) (CAFRA transferred the burden of proof from the claimant to the government and required

the government to establish forfeiture by a preponderance of the evidence rather than by the lower

probable cause standard.); U.S. v. All Assets of Statewide Auto Parts, 971 F.2d 896, 905 (2nd Cir.

1992) (We continue to be enormously troubled by the governments increasing and virtually

unchecked use of the civil forfeiture statutes and the disregard for due process that is buried in

those statutes.). Indeed, more stringent requirements are necessary where the lack of due process

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As to the final requirement, the government must allege sufficiently detailed facts to support a
reasonable belief that it will be able to establish, by a preponderance of the evidence, that the
property is subject to forfeiture. 18 U.S.C. 983(c)(1) (emphasis added).
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in civil forfeiture proceedings has essentially created a system where the government can seize

property with limited judicial oversight and retain it for their own use [which] has led to egregious

and well-chronicled abuses. Leonard v. Texas, 137 S.Ct. 847, 848 (2017) (cert. denied).

c. The Complaint for Forfeiture does not comply with the heightened pleading
requirements of Supplemental Rules e and G and therefore fails to state a
claim for which relief may granted.

The Complaint asserts that the Defendant properties are subject to forfeiture pursuant to 18

U.S.C. 981(a)(1)(A) and/or 981(a)(1)(C), but alleges no factual allegations which support such

accusations. (Doc. 1, ). Instead, the government merely makes reference to a sealed affidavit that

has not been made available to Claimants and avers that the Defendant properties were purchased

acquired and maintained with proceeds of a health care fraud and are properties involved in the

offense of money laundering carried out by Jimmy Collins and Ashley Collins. (Doc. 1, 5). In

fact, the Complaint does not even cite to the precise statute under which this forfeiture action is

brought, as required by Supplemental Rule G(2)(e). Absent particularized and precise allegations

of specific conduct related to these alleged health care fraud and money laundering offenses,

it cannot be said that the Complaint state[s] the circumstances from which the claim arises with

such particularity as to enable Claimants to commence an investigation of the facts and to frame

a responsive pleading. Fed. R. Civ. P. Supp. R. E(2)(a).

Furthermore, such threadbare accusations do not support a reasonable belief that the

government will be able to prove by a preponderance of evidence that the Defendant properties

are subject to forfeiture. Fed. R. Civ. P. Supp. R. G(2)(f). To show a violation of 18 U.S.C. 1956,

the government must prove that Claimants Jimmy and Ashley Collins had either knowledge that a

financial transaction represented the proceeds of some form of unlawful activity, or that Claimants

possessed the requisite intent to promote or carry on the specified unlawful activity. 18 U.S.C.

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1956(a)(1)-(3). The government must then prove a sufficient nexus between these alleged crimes

and the Defendant properties themselves. Here, however, the Complaint fails allege any facts

which would support a reasonable belief that the government will be able to prove by a

preponderance of evidence that the Defendant properties are criminally-derived from proceeds of

a money laundering scheme committed by Claimants Jimmy and Ashley Collins. Similarly, with

regards to the alleged health care fraud referenced in the Complaint, in addition to including no

facts whatsoever to support this allegation, the government fails to even cite to the federal statute

in which it is relying on. (Doc. 1, 5). Thereby making it virtually impossible that the government

will be able to meet its burden of proof at trial in this regard as no specific statute has been pled

which would warrant forfeiture to begin with. See Fed. R. Civ. P. Supp. R. G(2)(e).

For these reasons, the Complaint for Forfeiture must be dismissed as it fails to state a claim

upon which relief may be granted.

d. The Complaint for Forfeiture must also be dismissed because this Court lacks
jurisdiction and venue is not proper in the Southern District of California.

In addition to its failure to state a claim, the governments noncompliance with

Supplemental Rule G also divests the Court of jurisdiction in the instant action. Rule 12(b)(1)

allows for dismissal based on a lack of subject matter jurisdiction. Under Supplemental Rule

(G)(2)(a)-(b), a complaint for forfeiture must be verified and state the grounds for subject matter

jurisdiction, in rem jurisdiction over the defendant property, and venue. In U.S. v. $84,740.00 U.S.

Currency, 900 F.2d 1402, 1405 (9th Cir. 1990), the Ninth Circuit held that failure to file a properly

verified complaint will deprive the district court of in rem jurisdiction over the res or subject matter

of the action. See also, U.S. v. Approx. $77,000.00 in U.S. Currency, No. 1:11-cv-01251 GSA,

2013 U.S. Dist. LEXIS 179186, at *13-14 (E.D. Ca. Dec. 20, 2013) (Under the holding of [U.S.

v. $84,740.00 U.S. Currency], the lack of verification at all in the governments complaint, like

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the defective verification at issue in $84,000 U.S. Currency, deprives the Court of jurisdiction over

the defendant currency in this case.).

Here, while the Complaint reads [b]y way of verified complaint..., it is actually

unverified as it does not contain any verification or affidavit made under penalty of perjury

attesting to the allegations in the complaint. See (Doc. 1, p. 1). Additionally, the government has

not alleged that this Court has in rem jurisdiction over the Defendant properties, stating only that

the Court has jurisdiction over the action, not the subjects of the action as required by

Supplemental Rule G(2)(b). See (Doc. 1, 1). Indeed, the Complaint is completely devoid of any

facts or details evidencing a nexus between the Defendant properties and any criminally-derived

funds.

Finally, because Claimants specifically refute any and all allegations that they or the

Defendant properties were ever involved in any type of criminal activity within the Southern

District of California, it is denied that this Court has jurisdiction over the Defendant properties

located in the Eastern District of Tennessee. It is further denied that the Southern District of

California is the proper venue in this matter as both the Defendant properties and Claimants are

located within the Eastern District of Tennessee.

CONCLUSION

The Complaint for Forfeiture is devoid of well-pled and non-conclusory factual

allegations which would support a reasonable belief that the government will be able to meet its

burden of proof at trial. This is especially true when considering the Complaints failure to even

cite to the specific health care fraud statute referenced therein. As such, it fails to comply with

the heightened pleading requirements under Supplemental Rules E and G. Furthermore, the

Complaints lack of verification and failure to state the grounds for in rem jurisdiction deprive

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this Court of jurisdiction over this action. Finally, because Claimants deny any and all allegations

that they or the Defendant properties were involved in any criminal activity within the Southern

District of California that would give rise to forfeiture, subject matter and in rem jurisdiction and

venue are improper before this Court. For these reasons, Claimants respectfully request that the

Court enter an Order dismissing the governments Complaint for Forfeiture.

Respectfully submitted this 22nd day of May, 2017.

RITCHIE, DILLARD, DAVIES & JOHNSON, P.C.

/s/ Wade V. Davies

WADE V. DAVIES
606 W. Main Street, Suite 300
Knoxville, TN 37902
(865) 637-0661
wdavies@rddjlaw.com
Counsel for Ashley Collins

/s/ David M. Garvin

DAVID M. GARVIN
200 South Biscayne Blvd., Suite 3150
Miami, FL 33131
(305) 371-8101
ontrial2@gmail.com
davidmgarvin.com
Counsel for Jimmy Collins and Collins
Family Farms, LLC

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CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and exact copy of the foregoing has
been filed electronically this 22nd day of May, 2017. Notice of this filing will be sent by operation
of the Courts electronic filing system to all parties indicated on the electronic filing receipt. Parties
may access this filing through the Courts electronic filing system. A copy has also been forwarded
via electronic transmission to:
Benjamin J. Katz
Assistant United States Attorney
Southern District of California
Benjamin.Katz@usdoj.gov

Mark Pletcher
Assistant United States Attorney
Southern District of California
Mark.Pletcher@usdoj.gov

/s/ Wade V. Davies

Wade V. Davies

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