FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff,

and

CHRISTOPHER KIM, a/k/a KYUNG

JOON KIM, KJ KIM and CHRIS KIM;

BORA LEE; SE YOUNG KIM; YOUNG

AI KIM; ERICA M. KIM; FIRST

STEPHORA AVENUE, INC.;

ALEXANDRIA INVESTMENT, LLC,

Claimants-Appellees,

OPTIONAL CAPITAL, INC., a/k/a

OPTIONAL VENTURES, No. 06-56158

Claimant-Appellant, D.C. Nos.

v.  CV-04-02788-ABC

REAL PROPERTY LOCATED AT 475 CV-04-03386-ABC

MARTIN LANE, BEVERLY HILLS CV-05-03910-ABC

CALIFORNIA, Real Property located

at, a/k/a Seal A; 924 NORTH

BEVERLY DRIVE, BEVERLY HILLS,

CALIFORNIA, Real Property located

at, a/k/a/ Seal A; ALL FUNDS IN

CREDIT SUISSE PRIVATE BANKING

ACCOUNT NO. 0251-844548-6 IN

THE NAME OF ALEXANDRIA

INVESTMENT, LLC; ALL FUNDS IN

CREDIT SUISSE PRIVATE BANKING

ACCOUNT NO. 0251-922787-3 IN

THE NAME OF ERICA MIHAE KIM; 

14053
$956,525.06 IN FUNDS SEIZED, 

from United Commercial Bank

Account No. 63600084, in the

name of First Stephora Avenue,

Inc.; $157,329.05 IN FUNDS SEIZED,

from United Commercial Bank

Account No. 63599914, in the

name of Alexandria Investment,

LLC; $174,315.16 IN FUNDS SEIZED

from Wilshire State Bank Account

No. 3219380, in the name of Se  Young Kim; 2004 MERCEDES BENZ

CL500, one; 2002 MERCEDES BENZ

S500, one; 1990 FERRARI 550

MARANELLO, one; 2003 LANDROVER

RANGE ROVER, one; 2002 PORSCHE

BOXSTER, one; 2002 TOYOTA

TACOMA PICKUP TRUCK, one; 1999

PORSCHE CARRERA, one VARIOUS

MISCELLANEOUS FURNITURE AND

HOUSEHOLD ITEMS,

Defendants. 

14054 KIM v. REAL PROPERTY
UNITED STATES OF AMERICA, 

Plaintiff,

and

CHRISTOPHER KIM, a/k/a KYUNG

JOON KIM, KJ KIM and CHRIS KIM;

BORA LEE; SE YOUNG KIM; YOUNG

AI KIM; ERICA M. KIM; FIRST

STEPHORA AVENUE, INC.;

ALEXANDRIA INVESTMENT, LLC,

Claimants-Appellees,

DAS CORPORATION, f/k/a DAEBU

MACHINERY CO. LTD., No. 06-56168

Claimant-Appellant, D.C. Nos.

v.  CV-04-02788-ABC

REAL PROPERTY LOCATED AT 475 CV-04-03386-ABC

MARTIN LANE, BEVERLY HILLS CV-05-03910-ABC

CALIFORNIA, Real Property located

at, a/k/a Seal A; 924 NORTH

BEVERLY DRIVE, BEVERLY HILLS,

CALIFORNIA, Real Property located

at, a/k/a/ Seal A; ALL FUNDS IN

CREDIT SUISSE PRIVATE BANKING

ACCOUNT NO. 0251-844548-6 IN

THE NAME OF ALEXANDRIA

INVESTMENT, LLC; ALL FUNDS IN

CREDIT SUISSE PRIVATE BANKING

ACCOUNT NO. 0251-922787-3 IN

THE NAME OF ERICA MIHAE KIM; 

KIM v. REAL PROPERTY 14055
$956,525.06 IN FUNDS SEIZED, 

from United Commercial Bank

Account No. 63600084, in the

name of First Stephora Avenue,

Inc.; $157,329.05 IN FUNDS SEIZED,

from United Commercial Bank

Account No. 63599914, in the

name of Alexandria Investment,

LLC; $174,315.16 IN FUNDS SEIZED

from Wilshire State Bank Account

No. 3219380, in the name of Se  Young Kim; 2004 MERCEDES BENZ

CL500, one; 2002 MERCEDES BENZ

S500, one; 1990 FERRARI 550

MARANELLO, one; 2003 LANDROVER

RANGE ROVER, one; 2002 PORSCHE

BOXSTER, one; 2002 TOYOTA

TACOMA PICKUP TRUCK, one; 1999

PORSCHE CARRERA, one VARIOUS

MISCELLANEOUS FURNITURE AND

HOUSEHOLD ITEMS,

Defendants. 

14056 KIM v. REAL PROPERTY
UNITED STATES OF AMERICA, 

Plaintiff-Appellant,

CHRISTOPHER KIM, a/k/a KYUNG

JOON KIM, KJ KIM and CHRIS KIM;

BORA LEE; SE YOUNG KIM; YOUNG

AI KIM; ERICA M. KIM; FIRST

STEPHORA AVENUE, INC.;

ALEXANDRIA INVESTMENT, LLC,

Claimants-Appellees,

v. No. 06-56393

REAL PROPERTY LOCATED AT 475 D.C. Nos.

MARTIN LANE, BEVERLY HILLS  CV-04-02788-ABC

CALIFORNIA, Real Property located CV-04-03366-ABC

at, a/k/a Seal A; 924 NORTH CV-05-03910-ABC

BEVERLY DRIVE, BEVERLY HILLS,

CALIFORNIA, Real Property located

at, a/k/a/ Seal A; ALL FUNDS IN

CREDIT SUISSE PRIVATE BANKING

ACCOUNT NO. 0251-844548-6 IN

THE NAME OF ALEXANDRIA

INVESTMENT, LLC; ALL FUNDS IN

CREDIT SUISSE PRIVATE BANKING

ACCOUNT NO. 0251-922787-3 IN

THE NAME OF ERICA MIHAE KIM; 

KIM v. REAL PROPERTY 14057
$956,525.06 IN FUNDS SEIZED, 

from United Commercial Bank

Account No. 63600084, in the

name of First Stephora Avenue,

Inc.; $157,329.05 IN FUNDS SEIZED,

from United Commercial Bank

Account No. 63599914, in the

name of Alexandria Investment,

LLC; $174,315.16 IN FUNDS SEIZED

from Wilshire State Bank Account

No. 3219380, in the name of Se  Young Kim; 2004 MERCEDES BENZ

CL500, one; 2002 MERCEDES BENZ

S500, one; 1990 FERRARI 550

MARANELLO, one; 2003 LANDROVER

RANGE ROVER, one; 2002 PORSCHE

BOXSTER, one; 2002 TOYOTA

TACOMA PICKUP TRUCK, one; 1999

PORSCHE CARRERA, one VARIOUS

MISCELLANEOUS FURNITURE AND

HOUSEHOLD ITEMS,

Defendants. 

14058 KIM v. REAL PROPERTY
UNITED STATES OF AMERICA, 

Plaintiff-Appellant,

CHRISTOPHER KIM, a/k/a KYUNG

JOON KIM, KJ KIM and CHRIS KIM;

BORA LEE; SE YOUNG KIM; YOUNG

AI KIM; ERICA M. KIM; FIRST

STEPHORA AVENUE, INC.;

ALEXANDRIA INVESTMENT, LLC,

Claimants-Appellees,

and

OPTIONAL CAPITAL, INC., a/k/a No. 07-55653 OPTIONAL VENTURES,

Claimant, D.C. Nos.

CV-04-02788-ABC

v.  CV-04-03386-ABC

REAL PROPERTY LOCATED AT 475 CV-05-03910-ABC

MARTIN LANE, BEVERLY HILLS OPINION CALIFORNIA, Real Property located

at, a/k/a Seal A; 924 NORTH

BEVERLY DRIVE, BEVERLY HILLS,

CALIFORNIA, Real Property located

at, a/k/a/ Seal A; ALL FUNDS IN

CREDIT SUISSE PRIVATE BANKING

ACCOUNT NO. 0251-844548-6 IN

THE NAME OF ALEXANDRIA

INVESTMENT, LLC; ALL FUNDS IN

CREDIT SUISSE PRIVATE BANKING

ACCOUNT NO. 0251-922787-3 IN

THE NAME OF ERICA MIHAE KIM; 

KIM v. REAL PROPERTY 14059
$956,525.06 IN FUNDS SEIZED, 

from United Commercial Bank

Account No. 63600084, in the

name of First Stephora Avenue,

Inc.; $157,329.05 IN FUNDS SEIZED,

from United Commercial Bank

Account No. 63599914, in the

name of Alexandria Investment,

LLC; $174,315.16 IN FUNDS SEIZED

from Wilshire State Bank Account

No. 3219380, in the name of Se  Young Kim; 2004 MERCEDES BENZ

CL500, one; 2002 MERCEDES BENZ

S500, one; 1990 FERRARI 550

MARANELLO, one; 2003 LANDROVER

RANGE ROVER, one; 2002 PORSCHE

BOXSTER, one; 2002 TOYOTA

TACOMA PICKUP TRUCK, one; 1999

PORSCHE CARRERA, one VARIOUS

MISCELLANEOUS FURNITURE AND

HOUSEHOLD ITEMS,

Defendants. 

Appeal from the United States District Court

for the Central District of California

Audrey B. Collins, District Judge, Presiding

Argued and Submitted

June 9, 2008—Pasadena, California

Filed October 3, 2008

Before: Stephen S. Trott, Sidney R. Thomas, and

Raymond C. Fisher, Circuit Judges.

Opinion by Judge Thomas

14060 KIM v. REAL PROPERTY
COUNSEL

John E. Lee and Monica E. Tait, Assistant United States

Attorneys, Los Angeles, California, for the plaintiff-appellantcross-appellee. 

KIM v. REAL PROPERTY 14063
Ralph Rogari, Rehm & Rogari, Los Angeles, California; William K. Mills and Michael K. Zweig, Parker Mills Morin

LLP, Los Angeles, California, for the claimants-appellants. 

Eric S. Honig, Law Office of Eric Honig, Marina Del Rey,

California, for the claimants-appellees-cross-appellants.

OPINION

THOMAS, Circuit Judge: 

This consolidated appeal requires us to decide, inter alia,

whether the Civil Asset Forfeiture Reform Act of 2000

(“CAFRA”) permits district courts to authorize ex parte

extensions of the deadline to file civil forfeiture complaints.

We hold that it does. We further hold that, in the event of a

dismissal of a civil forfeiture complaint by the court, a district

court retains jurisdiction to adjudicate competing claims of

ownership over the defendant property. 

This case arises out of acts of fraud allegedly masterminded

by Christopher Kim (“Kim”) on two South Korean corporations, DAS Corporation (“DAS”) and Optional Capital, Inc.

(“Optional”).1 According to the complaint, Kim, a United

States citizen working in South Korea, fraudulently obtained

control over a South Korean corporation that Kim renamed

Optional Ventures Korea, Inc. Kim then allegedly embezzled

millions of dollars from this corporation, transferred the funds

into bank accounts in the United States, and used the money

to acquire the various assets at issue in this appeal. 

1The issues addressed in this appeal arise out of the district court’s

orders dismissing the government’s civil forfeiture complaint and releasing the defendant properties to Kim and his co-claimants. Accordingly, we

“accept as true all well-pleaded facts in the complaint and construe them

in the light most favorable to the nonmoving party.” See Watson v. Weeks,

436 F.3d 1152, 1157 (9th Cir. 2006). 

14064 KIM v. REAL PROPERTY
The Republic of Korea requested that the United States

extradite Kim. As a result of the extradition request and a subsequent investigation, the United States seized more than $1

million in three U.S. bank accounts along with six vehicles in

May 2004 (“the May 2004 properties”). The FBI sent timely

notice to the interested parties of the government’s seizure of

and intent to administratively forfeit those properties pursuant

to 18 U.S.C. § 983(a)(1)(A)(i). 

Kim, Erica Kim, Bora Lee, and Kim’s parents Se Young

Kim and Young Ai Kim filed timely claims contesting the

forfeiture. Erica Kim filed additional claims on behalf of First

Stephora Avenue, Inc. and Alexandria Investments, LLC.2

Because it was still investigating Kim’s fraud, the government

filed an ex parte application for an extension of time to file

its civil forfeiture complaint, pursuant to 18 U.S.C.

§ 983(a)(3)(A). Judge Dale S. Fischer granted the application,

extending the filing deadline for another ninety days. Judge

Fischer granted the government two more ninety day extensions, also upon the government’s ex parte application. Each

time, the government based its requests on the fact that its

investigation was still ongoing. As a result, it eventually

seized other assets in April 2005. 

In May 2005, the government filed its complaint for forfeiture of the May 2004 properties along with two Credit Suisse

bank accounts in the name of Erica Kim and First Stephora

Avenue, Inc., a seventh vehicle, and various pieces of furniture and household items. The Kim Claimants then filed verified statements of interest contesting the forfeiture of all the

defendant assets. Optional and DAS, a second alleged corporate victim of Kim’s fraud, also filed verified claims to the

property. In addition, Optional filed an answer to the complaint. The case involving the May 2004 properties was then

2We refer to Kim, Erica Kim, Bora Lee, Se Young Kim, Young Ai Kim,

First Stephora Avenue, Inc., and Alexandria Investments, LLC, collectively as “the Kim Claimants.” 

KIM v. REAL PROPERTY 14065
transferred to Judge Audrey B. Collins and consolidated with

two related civil forfeiture cases involving real property

seized from the Kim Claimants. 

The Kim Claimants filed a motion to dismiss the complaint

as to the May 2004 properties because the government had

not timely filed the complaint. The district court granted the

Kim Claimants’ motion to dismiss. The district court also

ruled that claimants DAS and Optional had standing as victims of Kim’s alleged fraud, and thus deferred ruling on the

disposition of the defendant property. Subsequently, the district court held that, following its Rule 12(b)(6) dismissal of

the government’s forfeiture complaint, it no longer had jurisdiction to adjudicate competing claims to the dismissed properties. Thus, the court granted the Kim Claimants’ motion for

an order releasing the May 2004 properties. DAS, Optional,

and the government timely appealed.3

I

[1] The Kim Claimants had standing to move for the dismissal of the government’s complaint, an issue we review de

novo. United States v. 5208 Los Franciscos Way, 385 F.3d

1187, 1190 (9th Cir. 2004). To demonstrate Article III standing in a civil forfeiture action, a claimant must have “a sufficient interest in the property to create a case or controversy.”

Id. at 1191. This burden is not a heavy one, at least at the initial stages of a forfeiture suit. Id. A “claimant need demonstrate only a colorable interest in the property, for example, by

showing actual possession, control, title, or financial stake.”

Id. To do so at the motion to dismiss stage, “a claimant must

allege that he has an ownership or other interest in the forfeited property.” United States v. $191,910.00 in U.S. Cur3This opinion disposes of the following appeals only: Nos. 06-56158,

06-56168, 06-56393, and 07-55653. We address the remaining related

cases, which were formerly consolidated for the purposes of oral argument, in an accompanying memorandum disposition. 

14066 KIM v. REAL PROPERTY
rency, 16 F.3d 1051, 1057 (9th Cir. 1994), superseded on

other grounds as stated in United States v. $80,180.00 in U.S.

Currency, 303 F.3d 1182, 1184 (9th Cir. 2002). In their pleadings, the Kim Claimants specifically alleged an ownership

interest in the May 2004 properties, which was sufficient at

the initial stages of the litigation to establish that they had

standing to challenge the civil forfeiture action. Thus, the district court did not err in permitting the Kim Claimants to

move for the release of the May 2004 properties. 

II

We have jurisdiction to consider the government’s appeal

relating to the district court’s dismissal of the civil forfeiture

complaint because, contrary to the assertions of the Kim

Claimants, the government timely filed its notice of appeal.

We review the timeliness of a notice of appeal de novo. See

In re Rains, 428 F.3d 893, 904 (9th Cir. 2005). 

[2] The Kim Claimants argue that we do not have jurisdiction to consider the government’s appeal of the district court’s

dismissal of the forfeiture complaint because the government

filed, and then voluntarily dismissed, its first notice of appeal.

However, the government’s original notice of appeal was of

an interlocutory order, which did not dispose of the entire

case. See Duke Energy Trading & Mktg., LLC v. Davis, 267

F.3d 1042, 1048 (9th Cir. 2001) (noting that a “ ‘final decision’ . . . ‘ends the litigation on the merits and leaves nothing

for the court to do but to execute the judgment’ ” (quoting

Coopers & Lybrand v. Livesay, 437 U.S. 463, 467 (1978))).

Because “an interlocutory appeal is permissive, not mandatory,” the government was not obligated to appeal the district

court’s dismissal of its complaint before the court issued its

final order in the case. See Adamian v. Jacobsen, 523 F.2d

929, 931 (9th Cir. 1975). On appeal of a final judgment, “the

interlocutory order merges in the final judgment and may be

challenged in an appeal from that judgment.” Baldwin v. Redwood City, 540 F.2d 1360, 1364 (9th Cir. 1976). Thus, the

KIM v. REAL PROPERTY 14067
government’s notice of appeal was timely filed, and we have

appellate jurisdiction over the appeal. 

III

After careful review of the civil forfeiture statute, we conclude that a court is authorized to grant ex parte extensions of

the deadline to file civil forfeiture complaints. In order to

resolve this issue of statutory interpretation, “ ‘we look first

to the plain language of the statute, construing the provisions

of the entire law, including its object and policy, to ascertain

the intent of Congress.’ ” United States v. Mohrbacher, 182

F.3d 1041, 1048 (9th Cir. 1999) (quoting Northwest Forest

Res. Council v. Glickman, 82 F.3d 825, 830 (9th Cir. 1996)).

[3] Under CAFRA, the government has sixty days after

seizing property to send written notice to interested parties. 18

U.S.C. § 983(a)(1)(A). Once the notice is sent, claimants have

a limited time to file a claim identifying the specific property

being claimed and stating the claimant’s interest in such property. Id. § 983(a)(2). If a claim is filed, the government then

has ninety days from the date the claim was received by the

seizing agency to file a civil complaint, obtain a criminal

indictment that includes an allegation that the property is subject to forfeiture, or both. Id. § 983(a)(3)(A) & (B). If the government does not do so by the deadline, and the property is

not returned to the claimant,4 the civil forfeiture of the property in connection with the particular underlying offense is

forever barred. Id. § 983(a)(3)(B). The ninety day period may

be extended, however, for good cause by the court. Id.

§ 983(a)(3)(A). 

Specifically, 18 U.S.C. § 983(a)(3)(A) provides that:

4The government also has the option of returning the property pending

the filing of a complaint. 18 U.S.C. § 983(a)(3)(A). 

14068 KIM v. REAL PROPERTY
Not later than 90 days after a claim has been filed,

the Government shall file a complaint for forfeiture

. . . or return the property pending the filing of a

complaint, except that a court in the district in which

the complaint will be filed may extend the period for

filing a complaint for good cause shown or upon

agreement of the parties. 

[4] Section 983(a)(3)(A) neither expressly permits nor prohibits ex parte extensions of time. Therefore, it is necessary

to look to the statute as a whole for context. See Carvajal v.

United States, 521 F.3d 1242, 1248 (9th Cir. 2008) (citing

Carson Harbor Vill., Ltd. v. Unocal Corp., 270 F.3d 863, 880

(9th Cir. 2001) (en banc)); see also Gustafson v. Alloyd Co.,

513 U.S. 561, 570 (1995) (noting that statutes “should not be

read as a series of unrelated and isolated provisions”); United

States v. $493,850.00 in U.S. Currency, 518 F.3d 1159, 1167

(9th Cir. 2008) (noting that the plain language of a statute

must be interpreted by examining “the provisions of the entire

law”). 

[5] The first relevant subsection, § 983(a)(1)(C), allows the

government to obtain an extension of time to send notices of

civil forfeiture to interested parties. The subsection authorizes

a district court to extend the original sixty day deadline for

sending written notice merely “[u]pon motion by the Government.” 18 U.S.C. § 983(a)(1)(C). As with § 983(a)(3)(C), the

subsection is silent as to whether the government may move

for such an extension on an ex parte basis. However, there is

little doubt that Congress intended to authorize ex parte applications: a contrary interpretation would require the government to notify the interested parties—defeating the very

purpose of the provision. Thus, although § 983(a)(1)(C) does

not contain express authorization for ex parte applications for

extensions of time to send written notice, one may reasonably

infer that Congress intended to authorize them. 

[6] Similarly, if the government could not obtain an ex

parte extension under § 983(a)(3)(A), the government would

KIM v. REAL PROPERTY 14069
have to publicly disclose why it wants to delay openly and

fully litigating the forfeiture of the property. If the reason for

delay is to allow the government to complete an ongoing

covert investigation, forcing disclosure would require the government to reveal information about who else is being investigated or what other property is being targeted for seizure. So

while allowing ex parte extensions under § 983(a)(1)(C)

ensures the government does not tip off owners of seized

property they are being investigated, allowing them under

§ 983(a)(3)(A) ensures that the government does not disclose

the broader reach of a covert investigation. The government’s

specific purpose for needing an ex parte extension in both situations is slightly different, but the underlying policy rationale is the same: requiring the government to openly seek an

extension would force it to reveal sensitive information that

would put some ongoing investigations in jeopardy. Congress’ silence in § 983(a)(1)(C) therefore supports the contention that an explicit authorization of ex parte applications in

§ 983(a)(3)(A) is unnecessary. 

[7] The other provision of § 983 addressing government

applications for judicial relief prior to the commencement of

a civil action is § 983(j)(1)(B). That provision, unlike

§ 983(a)(3)(A) and § 983(a)(1)(C), includes an express notice

requirement. Specifically, § 983(j)(1)(B) provides that prior to

the filing of a forfeiture complaint, “[u]pon application of the

United States, the court may enter a restraining order or

injunction . . . if after notice to persons appearing to have an

interest in the property and opportunity for such a hearing, the

court determines that” certain enumerated conditions are met.

Id. § 983(j)(1)(B) (emphasis added). This explicit notice

requirement indicates that Congress did not view the mere

absence of express authorization for ex parte applications as

sufficient to impose a notice requirement on the government.

Thus, we should not infer the existence of an implicit notice

requirement in § 983(a)(3)(A). Had Congress wished to

impose a notice requirement, it knew how to do so expressly.

See, e.g., Ctr. for Biological Diversity v. U.S. Fish & Wildlife

14070 KIM v. REAL PROPERTY
Serv., 450 F.3d 930, 939 (9th Cir. 2006); Boudette v. Barnette, 923 F.2d 754, 756-57 (9th Cir. 1991) (noting that the

expressio unius est exclusio alterius canon of statutory interpretation “creates a presumption that when a statute designates certain . . . manners of operation, all omissions should

be understood as exclusions”). 

Another subsection of CAFRA does specifically authorize

the government to apply to a court for an ex parte order prior

to the filing of a complaint. See 18 U.S.C. § 981(b)(4)(A).

That subsection states that:

If any person is arrested or charged in a foreign

country in connection with an offense that would

give rise to the forfeiture of property in the United

States . . . the Attorney General may apply to any

Federal judge or magistrate judge . . . for an ex parte

order restraining the property subject to forfeiture for

not more than 30 days, except that the time may be

extended for good cause shown[.] 

Id.

The use of the term “ex parte” in this context is necessary,

because § 983(j)(1)(B) imposes an express notice requirement

when the government applies for a restraining order prior to

the filing of the complaint. Section 981(b)(4)(A) carves out a

narrow exception to this notice requirement when providing

such notice would be unduly burdensome due to the property

owner’s presence in a foreign country and possible incarceration there. Rather than creating a presumption that ex parte

applications are permitted only where Congress has expressly

authorized them, the use of the term “ex parte” in

§ 981(b)(4)(A) indicates a narrow exception to an explicitly

created notice requirement. 

The other uses of the term “ex parte” in CAFRA provisions

likewise fail to indicate that the absence of the term demonKIM v. REAL PROPERTY 14071
strates congressional disapproval for ex parte applications.

The term appears three other times, in subsections that set out

procedures subsequent to the filing of the forfeiture complaint. 

First, the term appears in § 983(f)(4), which authorizes the

government to submit ex parte evidence to the district court

“in appropriate cases . . . in order to avoid disclosing any matter that may adversely affect an ongoing criminal investigation or pending criminal trial.” 18 U.S.C. § 983(f)(4). Explicit

authorization for ex parte submissions is necessary because

Federal Rule of Civil Procedure 5(a) ordinarily requires all

court filings to be “served on every party.” Indeed, it is highly

unusual in our system of law for a party to have to respond

to evidence she cannot see. See generally Hamdan v. Rumsfeld, 126 S. Ct. 2749, 2786-87 (2006). This same distinction

applies to § 981(g)(5), which authorizes the use of ex parte

evidence to support the government’s motion for a stay of a

civil forfeiture proceeding where it “may adversely affect an

ongoing criminal investigation.” 18 U.S.C. § 981(g)(5). 

Finally, in § 985(d)(1)(B)(ii), the term “ex parte” is used to

codify existing case law involving seizures of real property.

See United States v. James Daniel Good Real Property, 510

U.S. 43, 62 (1993) (invalidating ex parte seizure of real property without notice and a hearing absent exigent circumstances). Thus, the term “ex parte” was specifically needed

for clarity. 

[8] In sum, when we examine the structure and purpose of

the statute, we conclude that a district court may issue extensions of time in which to file a complaint based on an ex parte

government application. There is nothing in the statute that

prohibits the practice, and to hold otherwise would thwart one

of the objects of the statute by forcing the government to

reveal when an investigation that led to an initial seizure of

property is ongoing and has a broader scope than might be

apparent from the initial seizure. The inclusion of restrictions

14072 KIM v. REAL PROPERTY
on ex parte applications in other sections and the absence of

any such restriction in the portion of the statute under consideration here buttress our conclusion. 

The Kim Claimants argue that legislative history supports

their position. Where, as here, we resolve a question of statutory interpretation by examining the plain language of the

statute, its structure, and purpose, our “judicial inquiry is

complete,” and we need not consult a statute’s legislative history. Campbell v. Allied Van Lines, Inc., 410 F.3d 618, 622

(9th Cir. 2005) (internal quotation marks omitted); see also

Hata v. United States, 23 F.3d 230, 233 n.3 (9th Cir. 1994).

This principle of statutory construction is especially true

when, as here, “legislators’ published statements do not

squarely address the question presented.” Oregon v. Ashcroft,

368 F.3d 1118, 1136 (9th Cir. 2004). An examination of

CAFRA’s legislative history provides no definitive guidance

on the issue before us. See Stefan D. Cassella, The Civil Asset

Forfeiture Reform Act of 2000: Expanded Government Forfeiture Authority and Strict Deadlines Imposed on All Parties,

27 J. Legis. 97, 101 (2001) (describing genesis and eventual

passage of H.R. 1658 in both House and Senate). 

[9] Accordingly, we conclude from an examination of the

statutory language and its structure that courts have the

authority to grant ex parte applications for time extensions

under CAFRA. Therefore, the district court erred in dismissing the government’s complaint as to the May 2004 properties.5

5Although we hold that district courts may authorize ex parte extensions

of time in which to file the forfeiture complaint, we do not consider

whether “good cause” was demonstrated here, because the parties did not

sufficiently raise the issue before the district court. See In re E.R. Ferget,

Inc., 887 F.2d 955, 957 (9th Cir. 1989) (noting that appellate courts will

not consider an argument unless it has been “raised sufficiently for the

trial court to rule on it”). Furthermore, we also decline to consider whether

there is a limit to how many ex parte extensions the government may

obtain since that issue was not presented to us on this appeal. 

KIM v. REAL PROPERTY 14073
IV

Even assuming the district court properly dismissed the

government’s complaint as to the May 2004 properties, we

conclude that it nonetheless retained jurisdiction to adjudicate

the competing claims to the property. 

[10] A civil forfeiture proceeding is an action in rem. See

Republic Nat’l Bank of Miami v. United States, 506 U.S. 80,

84 (1992); United States v. Approximately $1.67 Million, 513

F.3d 991, 996 (9th Cir. 2008). In rem jurisdiction is obtained

“ ‘by arrest under process of the court.’ ” United States v.

2,164 Watches, More or Less, Bearing a Registered Trademark of Guess?, Inc., 366 F.3d 767, 771 (9th Cir. 2004)

(quoting Alyeska Pipeline Serv. Co. v. The Vessel Bay Ridge,

703 F.2d 381, 384 (9th Cir. 1983)). The parties do not dispute

that the district court properly obtained in rem jurisdiction

over the May 2004 properties. 

Under this analysis, the question would then become, having once properly obtained in rem jurisdiction over the disputed properties, could the district court adjudicate ownership

of the properties after it dismissed the government’s civil forfeiture complaint? Application of the traditional principles

and purposes of in rem jurisdiction provide an affirmative

answer. 

In rem actions are generally considered proceedings

“against all the world.” Restatement (Second) of Judgments

§ 6 cmt. a (1980) (internal quotation marks omitted). “In this

type of proceeding, the court undertakes to determine all

claims that anyone has to a thing in question.” Id. The

Supreme Court has described in rem forfeiture proceedings as

legal fictions “developed primarily to expand the reach of the

courts and to furnish remedies for aggrieved parties, not to

provide a prevailing party with a means of defeating its adversary’s claim for redress.” Republic Nat’l Bank, 506 U.S. at 87

(citations omitted). 

14074 KIM v. REAL PROPERTY
[11] Applying the traditional view of the purpose and reach

of in rem proceedings therefore indicates that the district court

retained jurisdiction to determine ownership of the May 2004

properties following the court’s dismissal of the government’s

complaint. Indeed, the court had not only the jurisdiction but

the duty to resolve the parties’ competing claims to the res.

To conclude otherwise would do violence to “the ‘general

principle’ ” in in rem forfeiture actions “ ‘that jurisdiction,

once vested, is not divested.’ ” Id. at 85 (quoting Chief Justice

Marshall, sitting as Circuit Justice in United States v. The Little Charles, 26 F. Cas. 979 (No. 15,612) (CC Va. 1818)). 

The Fourth Circuit confronted a similar question in the context of a voluntary dismissal in In re Matthews, 395 F.3d 477

(4th Cir. 2005).6 There, the Fourth Circuit held that the district

court lacked jurisdiction to resolve competing claims to one

6Two other circuits also discuss this question, but do so only briefly. See

United States v. $515,060.42 in United States Currency, 152 F.3d 491,

501 n.9 (6th Cir. 1998); United States v. 414 Kings Highway, 128 F.3d

125, 127 (2d Cir. 1997). In both cases, the courts concluded that the district court retained jurisdiction to dispose of the disputed property following the dismissal of the forfeiture action. Both also supported their

conclusions by relying on the proposition that a “court may consider collateral issues after an action is no longer pending.” $515,060.42, 152 F.3d

at 501 n.9 (quoting Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 394-

95 (1990)); see also Kings Highway, 128 F.3d at 127 (citing Cooter &

Gell). As discussed by the Matthews court, see 395 F.3d at 481, neither

case is particularly persuasive here because Cooter & Gell held only that,

following a voluntary dismissal, courts retain the authority to resolve collateral issues—issues that do not involve “a judgment on the merits of an

action,” such as attorney fees or sanctions. Cooter & Gell, 496 U.S. at

395-96. We agree with the Fourth Circuit that, “[b]y contrast, the determination of ownership interests in property seized in connection with a forfeiture action goes to the heart of the merits of that action.” Matthews, 395

F.3d at 481. Moreover, Cooter & Gell involved a voluntary dismissal.

Even if the adjudication of ownership interests could reasonably be characterized as a “collateral matter,” it is not clear that this limitation on jurisdiction would apply here, where the dismissal was on the merits. Thus,

although Kings Highway and $515,060.42 reach the same result, we do not

adopt their reasoning here. 

KIM v. REAL PROPERTY 14075
of the thirteen original, handwritten copies of the Bill of

Rights after the government voluntarily dismissed its forfeiture action. Id. at 481-83. At the time of the voluntary dismissal, none of the three competing claimants had filed an

answer to the forfeiture complaint. Id. at 480. The Fourth Circuit held that “[o]nce the United States voluntarily dismissed

its forfeiture action, all proceedings in the action were terminated, and the district court lacked the authority to issue further orders addressing the merits of the case.” Id. at 482. 

A voluntary dismissal pursuant to Federal Rule of Civil

Procedure 41(a)(1)(i) grants a plaintiff “ ‘an absolute right to

dismiss [ ] without prejudice’ . . . and requires no action on

the part of the court.” Duke Energy, 267 F.3d at 1049 (quoting

Pedrina v. Chun, 987 F.2d 608, 610 (9th Cir. 1993)) (first

alteration in original). The filing “ ‘itself closes the file. There

is nothing the defendant can do to fan the ashes of that action

into life and the court has no role to play.’ ” Id. The effect of

the filing “ ‘is to leave the parties as though no action had

been brought.’ ” Id. (quoting Commercial Space Mgmt. Co. v.

Boeing Co., 193 F.3d 1074, 1077 (9th Cir. 1999)). “Once the

notice of dismissal has been filed, the district court loses jurisdiction over the dismissed claims and may not address the

merits of such claims or issue further orders pertaining to

them.” Id.

The Matthews court recognized this special, self-executing

effect of a Rule 41 voluntary dismissal, and discussed it at

length, citing our opinion in Duke Energy. 395 F.3d at 480-

83. Indeed, the Matthews court expressly premised its holding

on the fact that the dismissal ending the case was voluntary.

See id. at 482. 

In this case, the district court—not the government—

dismissed the complaint.7 While the Matthews court’s reason7Moreover, by the time the district court dismissed the government’s

complaint, the government could not have obtained a voluntary dismissal

had it wanted one, as Optional had already filed its answer. See Duke

Energy, 267 F.3d at 1048 (noting that a voluntary dismissal may only be

filed before a defendant has filed an answer). 

14076 KIM v. REAL PROPERTY
ing may be persuasive in the context of a voluntary dismissal,

it is not applicable to cases in which a district court has acted

to dismiss a case on the merits, after the parties have appeared

and filed responsive pleadings. See, e.g., In re Marino, 181

F.3d 1142, 1144 (9th Cir. 1999) (noting that a dismissal with

prejudice, even when based on statute of limitations grounds

may be considered a dismissal on the merits); see also Suckow

Borax Mines Consol. v. Borax Consol., 185 F.2d 196, 205

(9th Cir. 1951). Outside of the unique procedural context of

a plaintiff exercising an absolute right of voluntary dismissal

under Rule 41(a)(1)(i), the traditional principles of in rem

jurisdiction remain paramount. See, e.g., Republic Nat’l Bank,

506 U.S. at 85-86 (reasoning that once jurisdiction is established by seizure of the property, the court ordinarily maintains jurisdiction until the litigation ends). 

[12] Such an outcome is also in accord with judicial efficiency concerns. Where, as here, the government’s claim fails

on the merits, courts will not be obliged to dismiss competing

claimants’ allegations of ownership, just to have the claimants

initiate a separate suit. See, e.g., United States v. Martinson,

809 F.2d 1364, 1368 (9th Cir. 1987) (“[A] separate civil

action[ ] is inadequate in light of the time and expense

involved, particularly where the court considering the motion

already has jurisdiction over the matter.”); United States v.

Wilson, 540 F.2d 1100, 1104 (D.C. Cir. 1976) (noting, in the

context of a Fed. R. Crim. P. 41(e) hearing regarding disposition of seized property, that the fact that adequate civil remedies exist “neither discharges the district court’s duties nor

disturbs its jurisdiction”) (cited with approval in Martinson,

809 F.2d at 1368-69). 

[13] Therefore, we conclude that the district court retained

in rem jurisdiction over the property after it dismissed the

government’s complaint, and had jurisdiction to resolve the

remaining competing claims of interest in the property. 

KIM v. REAL PROPERTY 14077
V

[14] The district court awarded attorney fees to the Kim

Claimants on the ground that they “substantially prevail[ed]”

in the civil forfeiture action with regard to the May 2004

properties. 28 U.S.C. § 2465(b)(1)(A). Because we reverse

the judgment of the district court, we vacate the district

court’s award of attorney fees to the Kim Claimants. See Baffert v. Cal. Horse Racing Bd., 332 F.3d 613, 622 (9th Cir.

2003). 

VI

In conclusion, we hold that 18 U.S.C. § 983(a)(3)(A)

authorizes district courts to grant ex parte extensions of time

in which to file a civil forfeiture complaint. We further hold

that district courts retain jurisdiction to adjudicate competing

claims to seized property even after the underlying civil forfeiture action has been dismissed. The parties shall bear their

own costs on appeal. 

AFFIRMED IN PART; REVERSED IN PART;

REMANDED.

14078 KIM v. REAL PROPERTY