The opinion of the court was delivered by: McDADE, District Judge.
Before the Court is Claimant F.J. Vollmer & Company, Inc. and
Claimant Kenneth L. Nevius' Motion to Dismiss Plaintiff's First
Amended Complaints filed in the above captioned cases.
To sustain a dismissal of a complaint under Fed.R.Civ.P.
12(b)(6), the Court must take all well-pleaded complaints as true
and construe the complaint in the light most favorable to the
Plaintiff to determine whether Plaintiff is entitled to relief.
Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2
L.Ed.2d 80 (1957). "The issue is not whether Plaintiff will
prevail but whether the [Plaintiff] is entitled to offer evidence
to support the claim." Scheuer v. Rhodes, 416 U.S. 232, 236, 94
S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974).
In this action, Plaintiff seeks to forfeit to the United States
certain weapons which were in Claimants' possession. Claimants
possessed the weapons in violation of federal law, and the
weapons were seized pursuant to 18 U.S.C. § 924(d)(1). Claimants
argue that the seizure took place in September of 1991 but that
the Complaint was not filed until October of 1992, over one year
later. The time limit for the commencement of "[a]ny action or
proceeding for the forfeiture of firearms . . . shall be within
one hundred and twenty days of seizure." Id. Because the
Complaint was filed more than 120 days after seizure, Claimants
argue that the action must be dismissed pursuant to
18 U.S.C. § 924(d)(1).
The Court finds, however, that the phrase "any action or
proceeding," as stated in § 924(d)(1), does not refer simply to
court actions, as Claimants argue. Rather, the phrase also
contemplates administrative actions. Clearly the phrase "any
action or proceeding" could not be read so narrowly as to
preclude administrative proceedings. More importantly, however, §
924(d)(1) is governed by "all provisions of the Internal Revenue
Code . . . relating to seizure, forfeiture, and disposition of
firearms. . . ." Id. The Internal Revenue Code mandates
administrative proceedings "in all cases of seizures of any goods
. . . subject to forfeiture . . . which . . . are of the
appraised value of $100,000.00 or less. . . ." 26 U.S.C. § 7325.
See also Cooper v. City of Greenwood, Mississippi,
904 F.2d 302, 305-306 (5th Cir. 1990) ("Under 18 U.S.C. § 924(d)(1),
firearms involved in a violation of § 922(g) . . . `shall be
subject to . . . forfeiture' if the federal government commences
forfeiture proceedings within 120 days of seizure." Citing
26 U.S.C. § 7321-7328.)
Based on the above, the Court finds that a forfeiture action is
timely so long as the Plaintiff commences at least an
administrative action within 120 days of the seizure of the
property in question. In the case at bar, Plaintiff, through its
argument, has intimated that such an action was timely commenced,
and Claimants have not alleged that the administrative action was
untimely commenced. Accordingly, the Court DENIES the Claimants'
Motions to Dismiss Plaintiff's First Amended Complaints.
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