Cactil, LLC v. United States

8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA CACTIL, LLC d/b/a MyChargeBack.com, Case No.: 24cv1270-LL-AHG 12 Petitioner, ORDER GRANTING CACTIL, LLC’S v. MOTION FOR LEAVE TO FILE REPLY IN SUPPORT OF RULE 41(g) UNITED STATES OF AMERICA, PETITION 15 Respondent. [ECF No. 23] 19 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.

2 || ECF No. 23.

3 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, 5 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, 7 F.3d 1003, 1007 (9th Cir. 2008) (citing United States v. Ritchie, 342 F.3d 903, □□□□□□ 8 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 13 with the Federal Rules of Civil Procedure.” /d.

14 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 18 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.

20 || 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.

22 IT IS SO ORDERED.

23 ||Dated: August 26, 2024 NO 24 DE | 25 Honorable Linda Lopez United States District Judge