MEMORANDUM & ORDER
Before the Court is Defendants’ motion to dismiss the amended complaint in this case. The central issue raised by this motion is the Court’s authority under the Civil Asset Forfeiture Reform Act of 2000 (“CAFRA”), Pub. L. No. 106-185, 114 Stat. 202, codified in part at 18 U.S.C. § 983, to decide whether Defendants properly for
I. Background,
A. Postr-CAFRA Law on Drug-Related Forfeitures
Title II of the Comprehensive Drug Abuse Prevention and Control Act of 1970, or the “Controlled Substances Act,” 21 U.S.C. § 801 et seq., permits the DEA to seize and then forfeit any funds associated with drug transactions. Id. §§ 881(a)(6), (b). For drug-related forfeitures, the Controlled Substances Act adopts the same procedures that apply to customs-related forfeitures, as set forth in the Tariff Act of 1930 (the “Tariff Act”), §§ 602-621, 19 U.S.C. §§ 1602-1621.
In conducting the administrative proceeding, the DEA is required to (i) send a written “notice of seizure” to any party “who appears to have an interest” in the funds and (ii) publish notices in a newspaper for “three successive weeks.”
If a party submits a timely claim for the funds, however, the administrative proceeding must be converted into a judicial proceeding. See 19 U.S.C. § 1608; 18 U.S.C. § 983(a)(3)(A).
B. The Facts
On the afternoon of August 31, 2011, Mikhaylov was “alone in his hotel room” at
On September 19, 2011, the DEA sent, via certified.mail, a written notice of seizure to Mikhaylov at 61-12 99th Street, Apartment 3, Rego Park, New York 11374 (the “Rego Park apartment”). (Am. Compl. ¶ 19; Dkt. No. 12 (“Defs.’ Ex.”), Exs. 1-2.) Among other things, the written notice stated that:
(i)Mikhaylov’s money (“Asset Id: 11-DEA-552558”) had been “seized by the [DEA] for forfeiture pursuant fo Title 21, United States Code (U.S.C.), Section 881,” i.e., the Controlled Substances Act;
(ii) “Pursuant to Title 18, U.S.C., Section 983 and Title 19, U.S.C., Sections 1602-1619, procedures to administratively forfeit [the money] [were] underway”;
(iii) Mikhaylov could file (a) a petition for the “remission (pardon) or mitigation of the forfeiture ... within thirty (30) days of your receipt of this notice,” and (b) “[i]n addition to, or in lieu of petitioning for remission or mitigation,” a claim for his money “by October 21, 2011”;11 and
(iv) The filing of a claim would allow Mikhaylov to “contest the forfeiture” in federal district court.
(Defs.’ Ex. 1 (emphasis added).) The DEA sent identical written notices to the JW Marriott. Hotel and another individual. (Defs.’ Exs. 3-6.)
On October 3,10, and 17, 2011, the DEA also published weekly notices in The Wall Street Journal regarding the seizure. (Defs.’ Ex. 7.) Like the written notices, the published notices stated that (i) the DEA had “seized for forfeiture” Mikhaylov’s money, pursuant to the Controlled Sub
On December 8, 2011, having failed to receive a claim for Mikhaylov’s money by the October 24, 2011 and November 17, 2011 deadlines, the DEA concluded the administrative proceeding with a declaration of forfeiture. (Defs.’ Ex. 8.),
As it turned out, Mikhaylov did not receive the written notice in time to make a claim. Although the receipt for the written notice was signed by someone at the Rego Park apartment on September 21, 2011, Mikhaylov had already moved out of that apartment on August 15, 2011, ie., 16 days before the seizure and about a month before the mailing of the notice. (Am. Compl. ¶ 20; Defs.’ Ex. 2.) Mikhaylov, thus, did not receive the written notice from the new occupant of that apartment until January 2, 2012. (Am. Compl. ¶ 21.)
On January. 16, 2012, Mikhaylov, by and through his counsel, petitioned for remission or mitigation of the forfeiture. (Am. Compl. ¶ 21; Defs.’ Ex. 9.) In response to Mikhaylov’s petition, the DEA (i) declined to construe the petition as a claim, because the deadline for the filing of a claim had passed; and (ii) denied the petition, because “once disposal of the forfeited property occurs, a [petition] can no longer be accepted.”
On October 12, 2012 and December 19, 2012, Mikhaylov filed his original and amended complaints, respectively. (Dkt. No. 1; Am. Compl.) Although Mikhaylov alleges constitutional violations, his amended complaint is more accurately construed as a Section 983(e) motion to set aside the declaration of forfeiture, based on the allegation that the DEA did not reasonably notify him about the seizure of his money. (Am. Compl. ¶¶ 1, 8 & at 6); see Bermudez,
On April 2, 2013, Defendants filed then-pending motion to dismiss Mikhaylov’s amended complaint based, in relevant part, on lack of subject matter jurisdiction and improper venue. (Dkt. No. 16 (“Defs.’ Br.”), at 12-13, 19-22.) Defendants also opposed, as a matter of law, the Section 983(e) motion. (Id. at 5-12.) On April 30, 2013, this case was transferred from the Southern District to the Eastern District. (Dkt. No. 23.)
II. Discussion
A Legal Standard
1. Section 983(e) Motion
18 U.S.C. § 983(e) provides, in relevant part, that:
(1) Any person entitled to written notice in any nonjudicial civil forfeiture proceeding under a civil forfeiture statute who does not receive such notice may file a motion to set aside a declaration of forfeiture with respect to that.person’s interest in the property, which motion shall be granted if—
(A) the Government knew, or reasonably should have known, of the moving party’s interest and failed to take reasonable steps to provide such party with notice; and
(B) the moving party did not know or have reason to know of the seizure within sufficient time to file a timely claim.
Id. § 983(e)(1) (emphasis added); see also Bermudez,
2. Motions to Dismiss for Lack of Subject Matter Jurisdiction or Improper Venue, Fed.R.Civ.P. 12(b)(1), (3)
Dismissals for lack of subject matter jurisdiction are appropriate “when the district court lacks the statutory or constitutional power to adjudicate [a case].” Makarova v. U.S.,
Similarly, with respect to dismissals for improper venue, the plaintiff bears the burden of proving that venue is proper by a “preponderance of the evidence”; but, where the district court merely relies on “pleadings and affidavits,” the plaintiff need only make a “prima facie showing” of venue. Gulf Ins. Co.,
B. Section 983(e) Motion
Defendants argue that the Section 983(e) motion should be denied, because Mikhaylov failed to satisfy both elements of that statute. (Defs.’ Br., at 7.) According to Defendants, “(a) the DEA took reasonable steps to provide notice to [Mikhay-lov]; and (b) [Mikhaylov] had knowledge of the seizure.” (Id.) The Court agrees.
1. Reasonable Notice
To determine whether the DEA reasonably notified Mikhaylov about the seizure, the Court applies the straightforward due process standard of “reasonableness under the circumstances,” which derives from Mullane v. Central Hanover Bank & Trust Co.,
In this, case, the DEA sent a written notice to Mikhaylov’s Rego Park apartment and published three notices in The Wall Street Journal, which, contrary to what Mikhaylov argues (Pl.’s Opp., at 3), is widely circulated in New York, as well as California. See Kairis v. U.S., No. 02-CV-1337,
Mikhaylov’s primary argument is that he did not see the written notice before his money was administratively forfeited, because the DEA sent the written notice to his Rego Park apartment, rather than his new address. (Pl.’s Opp., at 2-5.) The DEA’s failure to actually notify Mikhaylov in writing, however, did not render its written and published notices unreasonable. As the Supreme Court has recognized, “none of our cases ... has required actual notice in [drug-related forfeiture] proceedings.” Dusenbery,
The only arguable exceptions are: where the government knows or should know that the written notice will not reach the intended recipient (e.g., the written notice is returned as undeliverable), and it can obtain the recipient’s correct address internally (e.g., the recipient is already in the government’s custody). Torres v. $36,256.80 U.S. Currency,
There is no allegation that the DEA knew or should have known that the written notice sent to Mikhaylov’s Rego Park apartment would not reach him. {See Pl.’s Opp., at 4 (alleging only that the DEA “could have reasonably discovered the Plaintiffs new address”).) On the contrary, the DEA received a signed receipt, confirming delivery to the Rego Park apartment, and thus had no way of knowing, or reason to believe, that the written noticé was sent to the wrong address. See Krecioch,
The Court, therefore, finds that, after seizing and commencing the administrative proceeding to forfeit Mikhaylov’s money, the DEA took “reasonable steps to provide [him] with notice” thereof. 18 U.S.C. § 983(e)(1)(A).
2. Knowledge
Assuming for the sake of argument that the DEA’s written and published notices were unreasonable, the Court must determine whether Mikhaylov did not know or have reason to know of the seizure, such that he was unable to timely challenge the seizure. Congress’s specific use of the word “seizure” in 18 U.S.C. § 983(e)(1)(B), and not “forfeiture,” is significant, given that it used the word “forfeiture” elsewhere in CAERA.
To this end, some courts have concluded that the moving party’s mere knowledge that his property has been seized, regardless of whether he knows that it will be forfeited, defeats a Section 983(e) motion. See Johnson v. U.S., No. 03-CV-281,
The Court, however, need not decide which approach correctly interprets the second element of 18 U.S.C. § 983(e)(1). Even under the more pro-plaintiff standard applied in Bermudez, Mikhaylov cannot prevail. There is no question that Mikhaylov knew of both the seizure and the involvement of the DEA, the forfeiting agency, because he was present for the seizure, during which the agents identified themselves as DEA agents.
The Court, therefore, finds that Mikhay-lov did “know or have reason to know of the seizure within sufficient time to file a timely claim.” 18 U.S.C. § 983(e)(1)(B). Accordingly, due to Mikhaylov’s inability to satisfy either element of 18 U.S.C. § 983(e)(1), the Court DENIES his Section 983(e) motion.
C. Bivens Claims
1. Subject Matter Jurisdiction Over Claims Relating to the Forfeiture
As stated above, in addition to moving under 18 U.S.C. § 983(e) to set aside the declaration of forfeiture, Mikhay-lov asserts Bivens claims to undo the forfeiture, based on the DEA’s seizure, subsequent administrative proceeding, and denial of the petition for remission or mitigation. Given Congress’s intent that Sec
In enacting CAFRA, Congress designated a Section 983(e) motion as the “exclusive remedy for seeking to set aside a declaration of forfeiture under a civil forfeiture statute.” 18 U.S.C. § 983(e)(5). Where Congress provides an “alternative remedy which it explicitly declared to be a substitute for recovery directly under the Constitution and viewed as equally effective,” this remedy shall defeat any Bivens claims relating thereto. Carlson v. Green,
Based on Congress’s “explicit[]” statement in CAFRA that a Section 983(e) motion will be the sole remedy to challenge a declaration of forfeiture after an administrative proceeding, courts may not also entertain such challenges in the Bivens context, as a remedial alternative. Id. at 18,
As such, other courts have held, in cases involving a declaration of forfeiture, that they lack subject matter jurisdiction to consider anything but a Section 983(e) motion. See Bermudez,
Moreover, to the extent that the forfeiture-related Bivens claims are, in effect, an appeal from the DEA’s denial of the petition for remission or mitigation, Mikhaylov ignores that such a petition is a strictly administrative remedy that the Court may not review. Indeed “[i]f a party pursues the administrative path, files a petition for remission, and the petition is denied [by the DEA], the only avenue to set aside the declaration of forfeiture [in court] is [18 U.S.C. § 988(e) ].” Conservation Force v. Salazar,
Accordingly, based on the absence of subject matter jurisdiction, the Court DISMISSES the Bivens claims relating to the forfeiture.
2. Jurisdiction and Venue Over Claims Relating to the Arrest and Confinement
As for the remaining Bivens claims relating to Mikhaylov’s arrest and confinement, Defendants argue that (i) insofar as these claims are against the United States, the DEA, and its individual agents in their official capacities, there is no subject matter jurisdiction (Defs.’ Br., at 12-13); and (ii) as against these agents in their personal capacities, the venue for these claims in the Eastern District is improper (id. at 19-22). The Court agrees.
First, Bivens merely permits constitutional tort claims for monetary relief against federal agents in their personal capacities. See FDIC v. Meyer,
Second, with respect to the Bivens claims against the DEA’s individual agents in their personal capacities] these claims . belong in a “judicial district” where (i) “any defendant resides, if all defendants are residents of the State in which the district is located”; (ii) “a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated”; or (in), “if there is no district in which an action may otherwise be brought as provided in this section, ... any defendant is subject to the court’s personal jurisdiction.” 28 U.S.C. § 1391(b) (emphasis added); see also Gonzalez v. Hasty,
Typically, in a “case involving multiple claims” like this one, “dismissal of an improperly venued claim is not warranted if it is factually related to a properly ven-ued claim and the claims could be considered one cause of action with two grounds of relief.” U.S. Envtl. Prot. Agency ex rel. McKeown v. Port Auth. of N.Y. & N.J.,
Accordingly, the Court (i) DISMISSES the Bivens claims relating to Mikhaylov’s arrest and confinement, as against the United States, the DEA, and its individual agents in their official capacities, for lack of subject matter jurisdiction; and (ii) TRANSFERS this case and the remaining claims against the individual agents in their personal capacities to the Central District of California. ■
III. Conclusion
For the reasons set forth above, the Court GRANTS Defendants’ motion to dismiss, thereby (i) denying Mikhaylov’s Section 983(e) motion; (ii) dismissing the Bivens claims relating to the forfeiture; and (iii) dismissing in part, and transferring in part to the Central District of California, the Bivens claims relating to the arrest and confinement. The Clerk of the Court is directed to enter a final judgment accordingly.
SO ORDERED.
Notes
. Mikhaylov has named, as Defendants in this case, the United States of America, the DEA, and several of its named and unnamed agents, i.e., David Zekoski, Michele Leonhart, Thomas Harrigan, and "John Doe DEA Agents 1-10” (the "unnamed DEA agents”) (collectively, the "individual DEA agents”).
. CAFRA instituted procedural reforms that apply to drug-related forfeitures under the Controlled Substances Act, but do not apply to customs-related forfeitures under the Tariff Act. See 18 U.S.C. § 983(i)(2)(A); U.S. v.1996 Freightliner Fld. Tractor VIN 1FUYDX-YB0TP822291,
.The written and published notices must also include "information on the applicable procedures” with respect to the forfeiture of the funds. 19 U.S.C. § 1607(a).
. CAFRA provides that the applicable deadline shall be “set forth in [the written notice of seizure] (which deadline may be not earlier than 35 days after the date [the notice] is mailed), except that if [the notice] is not received, then a claim may be filed not later than 30 days after the date of final publication of [the notice]." 18 U.S.C. § 983(a)(2)(B) (emphasis added).
. There also exists a strictly administrative remedy: a "petition for the remission or mitigation of such ... forfeiture.” 19 U.S.C. § 1618; see also 28 C.F.R. § 9.3 (describing "petitions for remission or mitigation”). Either before or after it declares the forfeiture, the DEA may review such a petition for any "mitigating circumstances” that make remission or mitigation "reasonable and just.” 19 U.S.C. § 1618; see also Malladi Drugs,
. See also Malladi Drugs,
. For a helpful description of the post-CAFRA law on drug-related forfeitures, see Bermudez v. City of New York Police Department, No. 07-CV-9537,
.The Court draws many of the following facts from the factual allegations contained in Mik-haylov’s amended complaint. See Gulf Ins. Co. v. Glasbrenner,
Because the extrinsic documents cited by the Court pertain to its decision on (i) the Section 983(e) motion and (ii) the bases for jurisdiction and venue over the constitutional tort claims, these documents are also judicially noticeable. See Bermudez,
.Mikhaylov also alleges, for the first time in his opposition brief, that he was not only arrested and confined, but "thrown out onto file street miles from where he was originally abducted with no money, no phone, and no means of transportation” and “humiliated by being forced to walk through the streets of Los Angeles begging for someone to help him find his way back to his hotel.” (Pl.’s Opp., at 1.)
. In the end, the DEA did not convict Mik-haylov for any crime arising from the seizure. ■ (Am. Compl. ¶ 13.)
. The October 24, 2011 deadline was exactly 35 days after the mailing of the written notice, in accordance with CAFRA. 18 U.S.C. § 983(a)(2)(B).
. The November 17, 2011 deadline was one day longer than the alternative 30-day filing deadline imposed by CAFRA. 18 U.S.C. § 983(a)(2)(B).
. Indeed, while Mikhaylov was technically permitted to file a petition anytime “within 30 days” of his receipt of the written notice, the DEA was only required to consider such a petition “until the property has been forfeited." 28 C.F.R. § 9.3(a) (emphasis added). In other words, it was within the DEA's discretion not to consider a post-forfeiture petition.
. Mikhaylov appears to assert his constitutional tort claims under 42 U.S.C. §§ 1981, 1983, and 1985(3). (Am. Compl. ¶ 8.) These claims, however, have not been brought against state officials, only the DEA and its . individual agents. See Hartman v. Moore,
. See also Weigner v. City of N.Y.,
. See also Robinson v. Hanrahan,
. See also U.S. v. Barrett,
. See also Dusenbery,
. See also Krecioch,
. Furthermore, Mikhaylov has not alleged, nor is there any evidence suggesting, that he lacked the mental capacity to comprehend the written notice.
. Nonetheless, some courts have taken the position that the moving party must have knowledge of the seizure and forfeiture. See Hayes v. U.S., No. 08-CV-6525,
.See also In re Sowell, No. 08-CV-51163,
. See also U.S. v. Hill, No. 12-CR-12-04,
. Furthermore, while not required under Bermudez, Mikhaylov was told, at the time of the seizure, that he could make a claim with the DEA for the return of his money. See supra Section I.B.
. See also Schweiker v. Chilicky,
. See also Francis v. Mitigan,
. See also Wilson v. Layne,
. See also Corr. Servs. Corp. v. Malesko,
. Mikhaylov claims proper venue based on 28 U.S.C. § 1391(e), which only applies where "a defendant is an officer or employee of the United States or any agency thereof acting in his official capacity or under color of legal authority, or an agency of the United States, or the United States.” Id. (emphasis added). This provision is inapplicable to the personal-capacity claims that remain.