Free Motion to Dismiss - District Court of California - California

Case 3:08-cv-00468-JLS-POR

Document 7

Filed 05/06/2008

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KIRT J. HOPSON Attorney at Law 9844 South Paramount Boulevard Downey, California 90240-3874 (562) 861-6313 State Bar No. 111091 E-mail: [email protected] Attorney for Claimant BLANCA IRENE CARDOZA

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA ) ) Plaintiff, ) ) -vs) ) ONE 2006 NISSAN ARMADA SUV, ) CA LICENSE NO. 5RQF180, VIN ) 5N1AA08A76N717100, ITS TOOLS ) AND APPURTENANCES, ) ) Defendant. ) ) ) BLANCA IRENE CARDOZA, ) ) Claimant. ) ) UNITED STATES OF AMERICA, Case No. 08-CV-0468-JLS(POR) NOTICE OF MOTION AND MOTION TO DISMISS COMPLAINT FOR FORFEITURE BASED ON ITS FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED, OR, IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT [FEDERAL RULES OF CIVIL PROCEDURE, RULE 12(b)(6)] Date: Time: Courtroom: Judge: June 20, 2008 10:30 a.m. 6 Sammartino

TO PLAINTIFF UNITED STATES OF AMERICA, AND, TO THE UNITED STATES ATTORNEY FOR THE SOUTHERN DISTRICT OF CALIFORNIA: PLEASE TAKE NOTICE that on June 20, 2008, at 10:30 a.m., or as soon thereafter as the matter may be heard in the Courtroom of the Honorable Janis L. Sammartino, United States District Judge, located at the Edward J. Schwartz United States Courthouse, 880 Front Street, San Diego, California 92101-8900, 1

Case 3:08-cv-00468-JLS-POR

Document 7

Filed 05/06/2008

Page 2 of 2

Claimant BLANCA IRENE CARDOZA ("Claimant") will move the United States District Court to dismiss the Complaint for Forfeiture filed in the above-captioned case, pursuant to Federal Rules of Civil Procedure, Rule 12(b)(6), based on the ground that the Complaint for Forfeiture fails to state a claim upon which relief can be granted by this Court, or, in the alternative, will move the District Court for summary judgment, in that: 1. the forfeiture of Defendant ONE 2006 NISSAN ARMADA

SUV, CA LICENSE NO. 5RQF180, VIN 5N1AA08A76N717100, ITS TOOLS AND APPURTENANCES ("the Defendant vehicle"), in proportion to the conduct of Claimant, is an excessive fine, within the meaning of the Eighth Amendment to the U.S. Constitution, and, thus, the forfeiture is unconstitutional; and, 2. the forfeiture of the Defendant vehicle is not

permitted by federal law, as Claimant is an innocent owner within the meaning of 18 United States Code section 983(d). The motion will be based on this Notice of Motion and Motion, on the Declaration of Claimant and the Memorandum of Points and Authorities filed herewith, on all of the pleadings and papers otherwise filed herein, and, on such other evidence as may be presented at the hearing on the motion.

Dated: May 6, 2008

s/Kirt J. Hopson Attorney for Claimant BLANCA IRENE CARDOZA E-mail: [email protected]

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