Cactil, LLC v. United States

Opinion

CACTIL, LLC d/b/a MyChargeBack.com, Case No.: 24cv1270-LL-AHG

Petitioner, ORDER GRANTING CACTIL, LLC’S v. MOTION FOR LEAVE TO FILE REPLY IN SUPPORT OF RULE 41(g) PETITION Respondent. [ECF No. 23]

On August 23, 2024, Petitioner Cactil, LLC (“Cactil”) filed a Motion for Leave to File a Reply in Support of its Rule 41(g) Petition.1 ECF No. 23. Cactil claims that the parties were directed to file briefings regarding Cactil’s two motions to unseal [ECF No. 13], and in the government’s response to the motions to unseal, it also addressed Cactil’s Rule 41(g) Petition on the merits. ECF No. 20. Cactil now requests leave to file a reply in / / /

1 “Rule 41(g)” refers to Federal Rule of Criminal Procedure 41(g) regarding when “[a] person aggrieved by an unlawful search and seizure of property or by the deprivation of support of its Rule 41(g) Petition to address the government’s response in opposition. ECF No. 23. When there are no criminal proceedings pending at the time of filing, the Rule 41(g) motion is treated as a civil complaint governed by the Federal Rules of Civil Procedure, the government’s opposition to a Rule 41(g) motion is treated as the equivalent of a Federal Rule of Civil Procedure 12(b)(6) motion to dismiss. United States v. Ibrahim, F.3d 1003, 1007 (9th Cir. 2008) (citing United States v. Ritchie, 342 F.3d 903, □□□□□□ Cir. 2003)). If the court cannot decide the matter on the pleadings, it must convert the }government’s opposition into a motion for summary judgment. /d. at 108. If the } government is unable to meet the summary judgment standard, “the motion for return of property (now being treated as a civil complaint) should not be dismissed at the summary judgment stage, and the court should go forward with additional proceedings consistent with the Federal Rules of Civil Procedure.” /d. There is no indication that criminal proceedings were pending when the Rule 41(g) Petition was filed on July 22, 2024. Thus, the Court will treat the government’s opposition /as the equivalent of a motion to dismiss. /brahim, 522 F.3d at 1007. The Court notes that Cactil has not yet replied to the government’s opposition on the merits and only addressed motions to unseal. ECF No. 21 at 2 n.1. As the Court would generally allow a party to reply to a motion to dismiss, the Court finds it appropriate to GRANT Cactil’s Motion. See S.D. Cal. CivLR 7.1(e)(3). Cactil may file a reply in support of its Rule 41(g) Petition on or before September 5, 2024. Dated: August 26, 2024 NO DE | Honorable Linda Lopez United States District Judge