United States v. Das Corporation

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS FILED

FOR THE NINTH CIRCUIT DEC 15 2010

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

UNITED STATES OF AMERICA, No. 09-56645

Plaintiff - Appellee, D.C. No. 2:04-cv-02788-ABC-

PLA

CHRISTOPHER KIM, AKA Kyung Joon Kim, AKA KJ Kim, AKA Chris Kim; et al., MEMORANDUM*

Claimants - Appellees,

v.

DAS CORPORATION, FKA Daebu Machinery Co., Ltd.,

Claimant - Appellant,

__________________________________

UNITED COMMERCIAL BANK,

Intervenor - Plaintiff.

UNITED STATES OF AMERICA, No. 09-56792

Plaintiff - Appellee, D.C. No. 2:04-cv-02788-ABC-

PLA

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

OPTIONAL CAPITAL, INC., AKA

Optional Ventures,

Claimant - Appellant,

and

CHRISTOPHER KIM; et al.,

Claimants,

v.

REAL PROPERTY LOCATED AT 475

MARTIN LANE, BEVERLY HILLS,

CALIFORNIA, Real Property located at, a/k/a Seal A,

Defendant.

Appeals from the United States District Court for the Central…

MEMORANDUM **

DAS Corporation (“DAS”) and Optional Capital, Inc. (“Optional”) appeal three decisions of the district court: (1) to grant the motion to dismiss submitted by Christopher Kim, Bora Lee, Erica Kim, Se Young Kim, Young Ai Kim, Alexandria Investment, LLC and First Stephora Avenue, Inc. (collectively, “Kim Claimants”); (2) to grant summary judgment in favor of the Kim Claimants; and (3) to deny Optional’s motion for summary judgment. The underlying facts are set forth in our previous opinion in United States v. Real Property Located at 475 Martin Lane, 545 F.3d 1134, 1139-40 (9th Cir.2008) (“Real Property I ”). We have jurisdiction under 28 U.S.C. § 1291 . We affirm in part, reverse in part and remand this case for further adjudication of the competing ownership claims.

I

The parties are familiar with the factual history. However, because the complicated procedural history of this litigation appears to have caused confusion in the past, we set out at least the basic stages of that history in order to avoid further misapprehension in subsequent proceedings.

This case comes before us for the second time. The first round of proceedings began when the Government seized…

specially concurring:

This is my take on a case that has a complicated history. The U.S. Government seized the Kim Claimants’ assets, and DAS and Optional filed separate answers to the Government’s civil forfeiture complaints. Our previous memorandum disposition dismissed the Government’s claims against the Kim Claimants’ assets, but did not resolve DAS and Optional’s competing claims to the “Summary Judgment Properties.” See United States v. Real Property Located at 475 Martin Lane, 298 Fed.Appx. 545 (9th Cir.2008). As we stated in United States v. Real *160 Property Located at 475 Martin Lane, 545 F.3d 1134, 1145 (9th Cir.2008), the district court retains jurisdiction over the res and has the duty to resolve the parties’ competing claims to the res, even when the district court dismisses the Government’s Complaint. Therefore, we l'emand to the district court to resolve DAS and Optional’s competing claims to the “Summary Judgment Properties” because the district court has not yet resolved this issue.