Unpublished Disposition, 940 F.2d 668 (9th Cir. 1990)

No. 90-55829.

United States Court of Appeals, Ninth Circuit.

Before REINHARDT and FERNANDEZ, Circuit Judges, and CROCKER, District Judge.^* 

MEMORANDUM^** 

INTRODUCTION

Nancy Gallerstein appeals the district court's denial of her motion for return of seized property. She contends that the district court erred because it concluded that it did not have jurisdiction to decide her motion. We affirm.

BACKGROUND FACTS

On November 2, 1989, the DEA seized, pursuant to 21 U.S.C. § 881, a 1982 limousine from the possession of Gallerstein's business partner. The government does not dispute that Gallerstein was the owner of the car, or that she purchased it with a loan secured by her home.

On December 12, 1989, the DEA sent Gallerstein a notice of the seizure by certified mail. The notice advised Gallerstein that administrative forfeiture procedures were then under way, and described the procedures for both petitioning for remission of the forfeiture administratively and contesting the forfeiture in court.

Gallerstein alleges that she provided the DEA with documentation of her legal purchase and ownership of the limousine and was repeatedly advised by DEA personnel to file a petition for remission of forfeiture. Under the applicable statutes and regulations¹ , the last day to file a claim and bond which would preserve a right to judicial review of this seizure was January 9, 1990. Gallerstein did not file a claim and cost bond by that date. On January 11, 1990, she consulted an attorney and forwarded a claim and bond to the DEA. The DEA rejected the claim and bond as untimely. Gallerstein subsequently filed a petition for remission of forfeiture.

On March 23, 1990, Gallerstein filed a motion for return of the limousine with the district court. She invoked the general equity jurisdiction of the court. Prior to the scheduled hearing date for the motion, the administrative forfeiture proceeding was completed. The limousine was forfeited to the government on April 24, 1990. On May 29, 1990, the district court denied Gallerstein's motion for return of the limousine. Gallerstein timely appealed.

DISCUSSION

We have held that " [a] district court has jurisdiction to entertain motions to return property seized by the government when there are no criminal proceedings pending against the movant. Such motions are treated as civil equitable proceedings even if styled as being pursuant to Fed. R. Crim. P. 41(e)." United States v. Martinson, 809 F.2d 1364, 1366-67 (9th Cir. 1987) (citations omitted). The district court has discretion, however, to decline to exercise its equitable jurisdiction where the movant has an adequate remedy at law. United States v. Elias, 921 F.2d 870, 874-75 (9th Cir. 1990). See also United States v. United States Currency, $83,310.78, 851 F.2d 1231, 1235 (9th Cir. 1988) (when civil forfeiture proceeding filed, no need for equitable remedy).

Elias controls this case. Just as in Elias, Gallerstein's failure to "invoke the appropriate statutory remedy ... by failing to follow the procedures set forth" is insufficient to require the district court to grant an equitable remedy. Elias, 921 F.2d at 874. "Failure to comply with a remedy at law does not make it inadequate so as to require the district court to exercise its equitable jurisdiction." Id.

Gallerstein does not argue that it would have been an abuse of discretion for the district court to deny her motion. Instead, she contends that the court incorrectly concluded that it had no jurisdiction to entertain her motion. The basis for Gallerstein's contention is a statement made by the court when it denied Gallerstein's motion.

We have carefully read and ruminated upon the district court's ruling. We are satisfied that the district court well understood its power to exercise equitable jurisdiction, but declined to do so. It appears to us that the court simply took a strict approach and did not think that it was appropriate to grant relief in equity to a person who had not taken advantage of the legal remedies available to her.

We recognize, however, that the district court did use some infelicitous forms of expression which tend to lend support to Gallerstein's position before us. It would surely have been less productive of difficulty if the court had directly stated that it knew it had equitable jurisdiction but declined to exercise it in this case.

AFFIRMED.