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Gordon v. United States

March 6, 2007

MICHAEL LEE GORDON, ET AL., PLAINTIFFS,
v.
UNITED STATES OF AMERICA DEFENDANT.



The opinion of the court was delivered by: Judge Gregory L. Frost

Magistrate Judge King

OPINION & ORDER

This matter is before the Court for consideration of a motion to dismiss, or in the alternative, a motion for summary judgment filed by Defendant United States of America ("Defendant"). (Doc. # 27.) Plaintiffs Michael Lee Gordon ("Gordon") and Linda A. Diles ("Diles") (collectively "Plaintiffs") have not filed a response. For the reasons that follow, this Court grants Defendant's motion for summary judgment. (Doc. # 27.)

A. Background

On June 9, 1997, Gordon was arrested for a number of robberies under the Hobbs Act and several firearms violations. Gordon proceeded to trial and was convicted. On May 20, 1999, Gordon was sentenced to 137 1/2 years incarceration and ordered to pay $8,459.75 in restitution.*fn1

At the time of his June 9, 1997 arrest, Gordon was in possession of $1,837.00. Subsequently, the police confiscated this amount. On or about January 28, 1998, the currency was converted to a check and placed in the FBI property room. (Doc. # 24.) Pursuant to a note that Gordon sent to the FBI authorizing release of this money, his "cellular phone, and any other property that [he] may own to Mikalyn J. Paolucci," the FBI released $1,837.00 to Ms. Paolucci on March 2, 1998. (Doc. # 28-2, Doc. # 28-3).

On January 9, 1998, the FBI also seized three rifles in connection with an ongoing criminal investigation. On September 27, 2005, the FBI notified Diles by mail, advising her that in order to recover the three guns, she would have to prove ownership within thirty-days from the postmarked date of the letter.*fn2 (Doc. # 28-5.) Diles did not respond. (Doc. # 26.) On April 24, 2006, the FBI filed a "Declaration of Abandonment" in reference to the three guns at issue. (Doc. # 28-6.)

On September 25, 2006, Plaintiffs filed a Second Amended Complaint pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346 et. seq., alleging --despite the undisputed facts aforementioned-- that the FBI wrongfully seized and failed to return both the money and the guns. Plaintiffs seek to have Defendant return the guns or reimburse Plaintiffs for the value of the guns. Additionally, Plaintiffs request that Defendant return the confiscated money to Plaintiffs.

B. Discussion

1. Subject Matter Jurisdiction

a. Standard of Review

Preliminarily, Defendant moves to dismiss Plaintiffs' Second Amended Complaint (Doc. # 26) pursuant to Fed. R. Civ. P. 12(b)(1). Under the Federal Rules of Civil Procedure, "[p]laintiffs have the burden of proving jurisdiction in order to survive a Rule 12(b)(1) motion . . . ." Weaver v. Univ. of Cincinnati, 758 F. Supp. 446, 448 (S.D. Ohio 1991) (citing Moir v. Greater Cleveland Reg'l. Transit Auth., 895 F.2d 266, 269 (6th Cir. 1990)). See also Rapier v. Union City Non-Ferrous, Inc., 197 F. Supp. 2d 1008, 1012 (S.D. Ohio 2002) (citing McNutt v. General Motors Acceptance Corporation of Indiana, Inc., 298 U.S. 178, 189 (1936)); Rogers v. Stratton Indus., Inc., 798 F.2d 913, 915 (6th Cir. 1986)) ("The plaintiff bears the burden of establishing, by a preponderance of the evidence, the existence of federal subject matter jurisdiction.")

Moreover, a Rule 12(b)(1) challenge can either facially or factually attack the basis for subject matter jurisdiction. DLX, Inc. v. Kentucky, 381 F.3d 511, 516 (6th Cir. 2004) (stating "[a] rule 12(b)(1) motion can either attack the claim of jurisdiction on its face in which case all allegations of the plaintiff must be considered as true, or it can attack the factual basis for jurisdiction, in which case the trial court must weigh the evidence and the plaintiff bears the burden of proving that jurisdiction exists"). The Sixth Circuit has recognized this distinction and applied this standard to Rule 12(b)(1) challenges. DLX, Inc., 381 F.3d at ...


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