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					                    UNITED STATES DISTRICT COURT

                        FOR THE DISTRICT OF MAINE

UNITED STATES OF AMERICA                                  )

       Plaintiff,                                         )


       v.                                                 ) Civil No. 2002-04-EJR


MELODY RICHARDSON                                         )

       Defendant                                          )

                            MOTION FOR DISMISSAL

   NOW COMES Melody Richardson, by undersigned counsel, and hereby submits this

motion for dismissal.


   This is a case about a beloved family heirloom, and the government’s improper

attempt to take it away. For sixty years, Melody Richardson (“Ms. Richardson”) and her

family have proudly displayed “Boothbay Falcon” (“the sculpture”) to friends and guests

in their hometown, San Diego, California. Now the federal government asks the Court to

take Ms. Richardson’s heirloom by means of an action for replevin; however, the
government’s complaint must be dismissed for two reasons. First, the government failed

to obtain a writ of replevin from the Court as required by Maine law. Second, Maine is

not a proper venue for the government’s complaint because the events giving rise to the

government’s claim occurred exclusively in California.


   The Richardson family’s relationship with the sculpture began in 1944, when

President Roosevelt asked her grandfather, David Collins (“Mr. Collins”), to serve as the

American ambassador to Canada. (Richardson Decl. ¶ 4). Upon arriving at the embassy

in Canada, Mr. Collins encountered the sculpture on display there, and it quickly became

one of his favorite works of art. (Richardson Decl. ¶ 6). Upon his retirement from public

service, the federal government gave the sculpture to Mr. Collins. (Richardson Decl. ¶

5). The gift served to recognize his outstanding accomplishments in the field of

diplomacy. (Richardson Decl. ¶ 5). Mr. Collins cherished the sculpture, and it enjoyed a

prominent place in his San Diego home. (Richardson Decl. ¶ 6). In the winter of 1968,

Mr. Collins died, bequeathing the sculpture to his granddaughter, Ms. Richardson.

(Richardson Decl. ¶ 3, 4). Ms. Richardson has displayed the sculpture in her San Diego

home ever since. (Richardson Decl. ¶ 4).

   Recently, Ms. Richardson contacted Munjoy Galleries in Portland, Maine, to inquire

about auctioning the sculpture. (Richardson Decl. ¶ 8). Munjoy Galleries agreed to

provide this service to Ms. Richardson, and to publicize the anticipated auction.

(Richardson Decl. ¶ 8). Through the publicity surrounding the auction, the federal

government learned of the sculpture’s existence. (Complaint ¶ 14). Subsequently, the
government phoned Ms. Richardson at her home in California and insisted that she forfeit

possession of the sculpture. Ms. Richardson refused to comply with the government’s

demand. (Complaint ¶ 24). She then cancelled the auction, deciding to keep the

sculpture in her San Diego home. (Richardson Decl. ¶ 8).

   In response to Ms. Richardson’s refusal, the government sought to gain possession of

the sculpture by filing an action for replevin with the Court. (Complaint ¶ 32). The

government did not include a motion for approval of a writ of replevin with its complaint,

and Ms. Richardson has not been served with a writ of replevin. (Richardson Decl. ¶ 9).

                      STANDARD FOR MOTION TO DISMISS

   When considering a Rule 12(b) motion to dismiss, the Court must accept as true all

well-pleaded factual allegations, draw all reasonable inferences in the claimant’s favor,

and determine whether the Complaint sets forth sufficient allegations to support the

challenged claims, or whether the Complaint fails to state a claim for which relief can be

granted. Clorox Co. v. Proctor & Gamble Commer. Co., 228 F.3d 24, 30 (1st Cir. 2000);

LaChapelle v. Birkshire Life Ins. Co., 142 F.3d 507, 508 (1st Cir. 1998). The Court,

however, need not credit conclusory allegations or indulge unreasonable attenuated

inferences. Aybar v. Crispin-Reyes, 118 F.3d 10, 13 (1st Cir. 1997); Ticketmaster-NY,

Inc. v. Alioto, 26 F.3d 201, 203 (1st Cir. 1994).


I. Failure to Obtain a Writ of Replevin
   To obtain a remedy under the ancient writ of replevin in Maine, a three step

procedure is required. Donald N. Zillman, Zillman on Maine Torts: The Definitive

Treatise, §18.13. First, the Plaintiff must file a complaint, together with a motion for

approval of a writ of replevin, as well as affidavits that create a present right to

possession of the property. Id. Second, the Plaintiff must win a court-ordered taking of

the property. Id. Third, the Court asserts jurisdiction to decide which party has the

superior right to possess the property. Id.

   Here, the government has only filed a complaint with the Court. It has not filed a

motion for approval of a writ of replevin. Similarly, it has not submitted affidavits

sufficient to creating a present right to possession of the sculpture, nor has it won a court-

ordered taking of the property. Therefore, the government has overlooked the basic

requirements for filing a replevin action in Maine.

   The Maine Supreme Judicial Court elaborated on the requirements of a replevin

action in Maine, when it vacated a judgment in replevin for lack of subject matter

jurisdiction. Doughty v. Sullivan, 661 A.2d 1112 (ME. 1995). In Doughty, the Law

Court concluded that a court may only hear an action in replevin if the plaintiff has

already replevied the property by obtaining a prejudgment writ of replevin. Id. at 1114.

The Court elaborated on this requirement by noting that there is no statutory language to

suggest that a writ of replevin is “merely ancillary.” Id. at 1115. The Court also noted

that the Maine civil rules of procedure provide that “a replevin action may be commenced

only by filing a complaint with the court, together with a motion for approval of the writ

of replevin and the amount of the replevin bond.” Id. at 1115-1116.
   Similar to Doughty, the government has failed to meet the substantive requirements

of an action in replevin. The government has not obtained a writ. Nor has it posted a

bond with the Court. For these reasons, the Court must dismiss the government’s suit

against Ms. Richardson.

II. Improper Venue

   Even if the government had complied with the substantive requirements of a replevin

action in Maine, the U.S. District Court for the District of Maine is an improper venue.

Fed. R. Civ. P. 12(b)(3). The federal statute allows that where, as here, jurisdiction is

founded solely by diversity of citizenship; a civil suit may be brought only on three

grounds. 28 U.S.C. 1391(b). The first ground provides that an action may be brought in

a state where one of the defendants resides. Id. The second ground provides that an

action may be commenced in a judicial district “in which a substantial part of the events

or omissions giving rise to the claim occurred, or a substantial part of property that is the

subject of the action is situated.” Id. The third ground provides that an action may be

brought in a judicial district “in which any defendant may be found, if there is no district

in which the action may otherwise be brought.” Id.

   In this case, the first and third grounds may be quickly dismissed: Ms. Richardson

has never resided in Maine and is not currently in Maine. On the contrary, she is a

lifelong resident of California. As to the second ground, “the events or omissions giving

rise to the claim” are only Ms. Richardson’s gaining possession of the sculpture and her

refusal to hand it over at the government’s demand. Both of these events occurred in
California. The isolated fact that Ms. Richardson contemplated auctioning the sculpture

in Maine is immaterial to the government’s claim.

   The federal courts have determined that the burden of establishing proper venue lies

with the plaintiff. Seariver Maritime Financial Holdings, Inc. v. Pena, 952 F. Supp. 455,

456 (S. D. Texas, 1996). Additionally, the courts have held that actions taken after the

events giving rise to the claim are irrelevant in determining proper venue. Smith v.

Fortenberry, 903 F. Supp. 1018 (E. D. LA., 1995). In Fortenberry, the plaintiff claimed

his medical treatments in Louisiana gave the Court jurisdiction over a case arising from

an automobile accident in Mississippi. The Court rejected that argument because the

accident itself was the defining event giving rise to the claim; therefore, subsequent

events were not relevant in determining jurisdiction. Id. at 1020.

   Similarly, the government has failed to show that the contemplated auction at Munjoy

Galleries is related to the defining events of its claim. Ms. Richardson acquired the

painting by bequest in California, and she rejected the government’s demand while at her

home in California. For these reasons Maine is not a proper venue for this case.


   WHEREFORE for all the foregoing reasons, the Defendant respectfully requests

that the Court grant this motion to dismiss the Complaint.

                                                      Respectfully submitted,

                                                      Jeffrey Shafto
                                                      246 Deering Ave.
                                                      Portland, Maine 04102

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