Case: 19-12023 Date Filed: 01/15/2020 Page: 1 of 10
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 19-12023
Non-Argument Calendar
________________________
D.C. Docket No. 4:18-cv-00195-WTM-CLR
UNITED STATES OF AMERICA,
Plaintiff,
FCA US LLC,
Intervenor Plaintiff-Appellant,
versus
60 AUTOMOTIVE GRILLES, et al.,
Defendants,
324 AUTOMOTIVE GRILLES,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
________________________
(January 15, 2020)
Case: 19-12023 Date Filed: 01/15/2020 Page: 2 of 10
Before WILLIAM PRYOR, GRANT and BLACK, Circuit Judges.
PER CURIAM:
Appellant FCA US LLC appeals the district court’s denial of FCA’s motion
to intervene in this in rem forfeiture proceeding. FCA argues the district court
erred when it found FCA’s interest in the proceeding, to the extent such an interest
was even cognizable, was adequately represented by the Government, and FCA
therefore had no right to intervene under Rule 24(a) of the Federal Rules of Civil
Procedure. FCA further argues it can satisfy the other requirements of Rule 24(a).
I. BACKGROUND
Before getting into the specific facts of this case, we briefly set out the
statutory and regulatory framework underlying forfeiture actions of this sort.
Section 24 of the Lanham Act and Section 526 of the Tariff Act prohibit the
importation of goods that “copy or simulate” registered trademarks owned by
United States citizens or corporations. 15 U.S.C. § 1124; 19 U.S.C. § 1526.
Customs and Border Patrol (CBP) is authorized to seize and forfeit infringing
goods, and generally does so where a trademark owner has recorded its mark with
the Customs Office. 19 U.S.C. §§ 1526(b) and (e), 1595(c)(2)(C); 19 C.F.R.
§ 133, Subpart A.
Following a seizure, CBP takes custody of the goods and provides written
notice of the seizure to each party who appears to have an interest in the seized
2
Case: 19-12023 Date Filed: 01/15/2020 Page: 3 of 10
items. 19 U.S.C. §§ 1605, 1607; 19 C.F.R. § 162.31. The importer of the goods
then has several options. As relevant here, those options include filing “a claim
stating his interest” in the seized property, at which point the “customs officer shall
transmit such claim . . . to the United States attorney for the district in which
seizure was made, who shall proceed to a condemnation . . . in the manner
prescribed by law.” 19 U.S.C. § 1608; see also 19 C.F.R. § 162.47. This forces
the case into a district court where the Government must establish probable cause
for the forfeiture, and it allows the importer to present arguments that the seizure
was improper.
LKQ Corporation and its subsidiary Keystone Automotive Industries, Inc.
(LKQ) import and sell, among other merchandise, automotive replacement parts,
including the replacement automotive grilles that are the subject of the instant
forfeiture proceeding. Although LKQ had been importing these replacement
grilles for years without objection by the various trademark owners, beginning in
2017, CBP began seizing LKQ’s imports pursuant to the Tariff Act. Over the
course of approximately ten months, CBP executed at least 167 seizures at three
different ports. LKQ has sought judicial forfeiture in several of these seizure
cases, including those giving rise to the instant proceeding.
In light of LKQ’s request for judicial forfeiture, the Government filed in the
district court an amended civil complaint in rem for the forfeiture of 324
3
Case: 19-12023 Date Filed: 01/15/2020 Page: 4 of 10
automotive grilles, pursuant to 19 U.S.C. §§ 1526(b) and (e), and 1595a(c)(2)(C).
The amended complaint alleged the grilles constituted “articles of merchandise
bearing counterfeit marks, or marks that copy or simulate registered trademarks,
imported into the United States in violation of 15 U.S.C. § 1124 and without the
consent of the trademark owners.” Those trademark owners include, among
others, Ford, Toyota, Mazda, Honda, and Appellant FCA (Chrysler).
After the Government initiated the forfeiture action, LKQ filed a Verified
Claim contesting the forfeiture of the grilles, pursuant to Rule G(5)(a) of the
Supplemental Rules for Admiralty or Maritime Claims and Asset Forfeiture
Actions, thereby inserting itself as a defendant in the case. LKQ asserted it was the
“lawful owner” of the seized grilles.
That same day, LKQ filed a motion seeking to dismiss the forfeiture
proceeding. LKQ acknowledged that the various trademark owners had valid
trademark registrations, but argued the amended complaint should be dismissed on
two grounds. First, LKQ argued the replacement grilles do not violate any
trademark law because: (1) the trademarked designs are functional, at least in the
context of aftermarket repairs; and (2) the replacement grilles are not counterfeit
and there is no likelihood of confusion. Second, LKQ argued the replacement
grilles are not subject to seizure because “[m]ost of” the grilles—including those
allegedly infringing on FCA’s trademarks—are covered by design patent licenses
4
Case: 19-12023 Date Filed: 01/15/2020 Page: 5 of 10
that allow LKQ “to make any grille that is substantially similar to the grille designs
covered by . . . [FCA’s] design patents.”
The Government filed its response to LKQ’s motion, contending LKQ’s
motion failed to establish, or even argue, that the Government failed to state a
claim, instead improperly focusing on the underlying merits of the Government’s
claims and relying on evidence outside the amended complaint. The Government
did not comprehensively respond to LKQ’s arguments concerning trademark law
or the contours of its licensing agreement with FCA, but it did request an
opportunity to substantively respond if the court elected to convert LKQ’s motion
to dismiss to a motion for summary judgment. LKQ filed a reply to the
Government’s response, and the Government filed a sur-reply.
Appellant FCA then filed the Motion to Intervene that is the subject of this
appeal. FCA sought intervention due to “the erroneous arguments” made by LKQ
in the motion to dismiss. FCA argued LKQ had mischaracterized trademark law,
insisting it needed to intervene to “vindicate” both its trademark and contractual
rights and “present evidence” as to those issues. In the alternative, FCA sought
leave to appear as amicus curiae. FCA did not file a formal intervenor complaint.
Instead, it attached a proposed memorandum in opposition to LKQ’s motion to
dismiss, in which it addressed LKQ’s substantive arguments concerning the
5
Case: 19-12023 Date Filed: 01/15/2020 Page: 6 of 10
legitimacy of the replacement grilles. LKQ opposed the motion, and the
Government expressed no view on the matter.
The district court denied the motion. Before addressing the substance of
FCA’s motion, the district court noted that, because the Supplemental Rules did
not refer to or otherwise permit intervention as a plaintiff in a forfeiture
proceeding, Federal Rule of Civil Procedure 24(a) applied. Applying that rule, the
district court concluded that, assuming FCA’s interest in protecting its intellectual
property was sufficient to warrant intervention, FCA’s interests were already
adequately represented by the Government. This appeal followed.
II. DISCUSSION
“Generally, the denial of a motion to intervene is not considered a final
appealable order over which we have jurisdiction.” Fed. Sav. & Loan Ins. Corp. v.
Falls Chase Special Taxing Dist.,
983 F.2d 211, 214 (11th Cir. 1993). However,
under this circuit’s “anomalous rule” we have “provisional jurisdiction” to review
the district court’s denial of FCA’s motion to intervene as a matter of right under
Rule 24.
Id. (quotation marks omitted). If we find the district court was correct,
“our jurisdiction disappears because the district court’s ruling would not be a final
decision.”
Id. Should we find the district court erred, however, “we maintain
jurisdiction and must reverse the ruling.”
Id.
6
Case: 19-12023 Date Filed: 01/15/2020 Page: 7 of 10
Rule 24(a)(2) provides for intervention as a matter of right where certain
conditions are met:
On timely motion, the court must permit anyone to intervene who . . .
claims an interest relating to the property or transaction that is the
subject of the action, and is so situated that disposing of the action may
as a practical matter impair or impede the movant’s ability to protect its
interest, unless existing parties adequately represent that interest.
Fed. R. Civ. P. 24(a)(2). We have interpreted this rule to require a party seeking
intervention of right to demonstrate that: “(1) his application to intervene is timely;
(2) he has an interest relating to the property or transaction which is the subject of
the action; (3) he is so situated that disposition of the action, as a practical matter,
may impede or impair his ability to protect that interest; and (4) his interest is
represented inadequately by the existing parties to the suit.” Worlds v. Dept. of
Health and Rehab. Servs.,
929 F.2d 591, 593 (11th Cir.1991) (quotation marks
omitted).
Assuming intervention as a plaintiff is appropriate in this sort of civil asset
forfeiture proceeding, we agree with the district court that FCA failed to show its
interest was not adequately represented by the Government. We limit our
discussion to this requirement.
Where, as here, an “applicant[] for intervention seek[s] to achieve the same
objectives as an existing party in the case,” the applicant must overcome a
presumption that it is adequately represented. United States v. City of Miami, 278
7
Case: 19-12023 Date Filed: 01/15/2020 Page: 8 of
10
F.3d 1174, 1178 (11th Cir. 2002) (quotation marks omitted). FCA has failed to do
so here. Like the district court, we can discern no difference between the
objectives the Government seeks to fulfill in this case and those of FCA. Both
ultimately seek a finding that the Government has cause to seize and forfeit the
defendant property. In making its case, the Government will necessarily need to
make the same arguments FCA indicates it wishes to make: the defendant
automotive grilles unlawfully infringe on FCA’s trademark rights and were
imported into the United States without the consent of FCA. The fact that FCA
might go about making these arguments in a different manner or otherwise
believes itself to be in a better position to make them does not make the
Government’s representation inadequate.
FCA insists the Government must serve “multiple interests” beyond
protecting FCA’s intellectual property, such as “ensur[ing] that the overall
regulatory scheme for the nation’s borders is not jeopardized.” But FCA has not
shown that any of these additional interests the Government may have are in direct
conflict with its interest in protecting trademark rights. See City of
Miami, 278
F.3d at 1179 (finding the Government adequately represented a prospective
intervenor’s interests where there was no indication the Government’s asserted
interest and the intervenor’s related interest were “mutually exclusive”). At the
end of the day, the Government cannot succeed in its forfeiture action without
8
Case: 19-12023 Date Filed: 01/15/2020 Page: 9 of 10
making the case that the defendant automotive grilles unlawfully infringed on the
rights of FCA and other trademark owners.
We further note that the statutory and regulatory scheme laid out above
reinforces our conclusion that FCA’s interests are adequately represented by the
Government in this action. As the district court noted, §§ 1526 and 1595a provide
mechanisms by which private parties—trademark owners—may essentially enlist
the Government’s aid in enforcing private rights. This scheme assumes the
Government is competent to protect those rights in the context of forfeiture
proceedings. And notably, none of the relevant statutes, the regulations
promulgated pursuant to those statutes, or the Supplemental Rules applicable in
forfeiture proceedings contemplates intervention as a plaintiff by private rights
owners who assert no claim to the defendant property itself.
Because the primary objectives FCA seeks to achieve in this case are goals
shared by the Government, FCA’s interests are adequately represented, and the
district court was not required to permit FCA to intervene in this forfeiture
proceeding. See Fed. R. Civ. P. 24(a);
Worlds, 929 F.2d at 593.
III. CONCLUSION
Because we agree with the district court that FCA has no basis for
intervention as a matter of right, there is no “final decision” for us to review, and
9
Case: 19-12023 Date Filed: 01/15/2020 Page: 10 of 10
we must dismiss the appeal for lack of appellate jurisdiction. See Fed. Sav. &
Loan Ins.
Corp., 983 F.2d at 214.
DISMISSED.
10
