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March 31, 1992

71/55 gallon drums, more or less, of stuffed green olives in brine, an article of food, labeled in part: (drum) "HNOS. GARCIA GUTIERREZ, S.A. ALCALA DE GUADAIRA SEVILLA EXPORTER NO. 41126194 Stuffed *** Manzanilla Olives * * * Size: 340/360 Product of Spain CROP 1.989 NET WEIGHT: B.G. CHICAGO * * *", Defendant, BOB GORDON & ASSOC., LTD. Claimant.

The opinion of the court was delivered by: BRIAN BARNETT DUFF

 The government filed a complaint on March 7, 1991 requesting the forfeiture, seizure, and condemnation of an article of food, in accordance with the Federal Food, Drug, and Cosmetic Act ("The Act"), 21 U.S.C. 301 et seq. The article of food referred to was seventy-one 55 gallon drums, more or less, of stuffed green olives in brine. *fn1" This court has jurisdiction under 28 U.S.C. § 1345 and 21 U.S.C. § 334. The plaintiff and defendant have each filed motions for summary judgment. The government has also requested that if its motion is granted that costs be taxed against the claimant pursuant to 21 U.S.C. § 334(e).


 An inspection was prompted after several drums of stuffed paste manzanilla olives located at Thorne Valley, Inc. Grand Rapids, Michigan were identified by the Food and Drug Administration's ("FDA") Detroit District Laboratory as possibly being contaminated with mold. (Kelly Declaration, paragraph 3). *fn2" Bob Gordon & Associates, Ltd. ("Bob Gordon") was the importer/distributor of those olives. The olives were shipped in interstate commerce on or about October 12, 1990, by Hermanos Garcia Gutierrez, S.A., Sevilla Spain, via ship. (Complaint, paragraph 3).

 On December 14, 1990 Ms. Anne Kelly, an FDA inspector, requested to examine samples from the same lot of olives that was shipped to Thorne Valley. Mr. Gordon informed her that he didn't have any olives left from that lot and instead provided her with access to a similar lot. *fn3" Ms. Kelly states that during the inspection she observed a whitish substance on the drum lid that touched the olives and on the olives themselves. (Kelly Declaration, paragraph 5).

 Following the inspection, the government filed a complaint alleging that approximately seventy-one 55 gallon drums of olives were adulterated while being held for sale after shipment in interstate commerce within the meaning of 21 U.S.C. § 342 (a)(3); and thus are unfit for food. (Complaint, paragraph 4). The government argued that since these olives were held illegally within the jurisdiction of the court, they were liable to seizure and condemnation. A warrant of arrest in rem was issued by this court.

 Pursuant to the court's order, a United States Marshall seized the article of food on March 11, 1991. Out of the original seventy-one drums of olives, 24 fifty-five gallon drums were impounded. (Answer to Complaint, paragraph 3B). Subsequent to the seizure, Robert Gordon, as President of Bob Gordon Associates and owner of the food product seized, intervened as claimant. (Memorandum in Support of Plaintiff's Motion for Summary Judgment, p.2). Mr. Gordon has been in the business of repacking and reselling olives for over 40 years. (Gordon Declaration, paragraph 2).

 On April 15, 1991 the court granted the claimant's motion to modify in certain respects the conditions under which the olives were impounded. *fn4" On June 14, 1991 the plaintiff filed a motion for summary judgment. Pursuant to local rule 12, the government has filed a statement of material facts to which it contends there is no genuine issue. On July 23, 1991, Mr. Gordon, the claimant, filed the requisite 12n statement in response to the plaintiff's motion and his own motion for summary judgment along with a statement of facts to which he contends there is no genuine issue, in compliance with local rule 12. The Government has filed the requisite 12n statement in response.


 A. Standard of Review

 Rule 56 of the Federal Rules of Civil Procedure requires the entry of summary judgment upon either party's motion "if the pleadings, depositions, answers to interrogatories, and admissions on file together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." See generally, Celotex Corp. v. Catrett, 477 U.S. 317, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). When there is enough evidence in favor of the non-movant so that a jury could reasonably return a verdict for that party, a "genuine issue" exists and summary judgment is not appropriate. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). This court's task, therefore, is to determine which facts are material, in light of the appropriate law, and then whether any of those facts are contested.

 B. 21 U.S.C. Section 334(a)(1)

 The government has the authority to seize property upon the filing of a complaint for forfeiture when federal statutory violations are identified. Section 334(a)(1) of 21 U.S.C. provides in pertinent part that:

Any article of food, drug or cosmetic that is adulterated or misbranded when introduced into or while in interstate commerce or while held for sale (whether or not the first sale) after shipment in interstate commerce . . . shall be liable to be proceeded against while in interstate commerce, or at anytime thereafter, on libel of information and condemned in any district court of the United States or United States court of a Territory within the jurisdiction of which the article is found . . .

 Before the court can grant a decree of condemnation or forfeiture the government must establish the following elements under this statutory provision: (1) that the seized article is food; (2) that the food is held for sale following shipment in interstate commerce; and (3) that the seized article of food is adulterated within the meaning of 21 U.S.C. § 342 (a)(3) as alleged. The government maintains that there are no genuine issues of fact regarding any of these elements. The claimant's motion for summary judgment, however, is based on evidence he has submitted for element three of the statutory provision (i.e. Is the food adulterated within the meaning of 21 U.S.C. § 342(a)(3)). The claimant argues that results obtained from the laboratory tests conducted by several experts and summarized in their declarations demonstrate that ...

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