Lycurgan, Inc. v. Jones

MEMORANDUM ** In this action, Plaintiff-Appellant Lycur-gan, Inc. (Lycurgan) seeks injunctive relief ordering Defendant-Appellee Todd Jones — the director of the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) — to return eighteen “EP80 lower receivers” that allegedly went missing after the government seized Lycurgaris property during the execution of a criminal search warrant. The district court dismissed Lycurgaris complaint for lack of subject matter jurisdiction. We review that decision de novo. Hicks v. Small, 69 F.3d 967, 969 (9th Cir. 1996). We have jurisdiction pursuant to 28 U.S.C. § 1291 , and we affirm. Lycurgaris complaint for injunctive relief is moot. “A case becomes moot — and therefore no longer a ‘Case’ or ‘Controversy 1 for purposes of Article III — ‘when the issues presented are no longer ‘‘live” or the parties lack a legally cognizable interest in the outcome.’ ” Already, LLC v. Nike, Inc., 668 U.S. 86 , 133 S.Ct. 721, 726 , 184 L.Ed.2d 563 (2013) (quoting Murphy v. Hunt, 455 U.S. 478, 481 , 102 S.Ct. 1181 , 71 L.Ed.2d 353 (1982) (per curiam)). “The basic question in determining mootness is whether there is a present controversy as to which effective relief can be granted.” Feldman v. Bomar, 518 F.3d 637, 642 (9th Cir. 2008) (quotation marks omitted). Here, Lycurgan seeks an order “command[ing] Defendant to release the 18 un-returned [EP80 lower receivers] forthwith and without delay.” However, the ATF is not asserting any legal right to retain Ly-curgaris property, and Lycurgan concedes that the “missing” lower receivers are not in the government’s possession. See Blue Br. 42 (“[T]he ATF allowed the loss or the theft of 18 of Lycurgaris [EP80 lower receivers].”); Grey Br. 13 (“Lycurgan has suffered a deprivation of its property, and that property is somewhere. The 18 EP80 receivers have either been stolen, destroyed, or transferred.... ”). Given that the only live issue concerns whether a counting error occurred (as ATF believes) or whether the missing EP80s were lost or stolen (as Lycurgan believes), the. case is moot. This court is not capable of granting any effective relief because Lycurgan seeks an injunction ordering the return of property that it recognizes the government does not possess. See Already, 133 S.Ct. at 727 (“No matter how vehemently the parties continue to dispute the lawfulness of the conduct that precipitated the lawsuit, the ease is moot if the dispute is no longer embedded in any actual controversy about the plaintiffs’ particular legal rights.” (internal quotation marks omitted)). Lycurgaris argument that mootness is intertwined with the merits of this action is not correct. “[J]urisdiction and the merits of an action are intertwined where a stat *444 ute provides the basis for both the subject matter jurisdiction of the federal court and the plaintiffs substantive claim for relief.” Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004) (internal quotation marks omitted). In Safe Air, for instance, “the Growers challenged Safe Air’s contention that grass residue constitutes solid waste under [the Resource Conservation and Recovery Act].” Id. The issues were intertwined because, if grass residue counted as solid waste, then not only did the court have subject matter jurisdiction to hear Safe Air’s substantive claim, but the Growers w¿re liable under the statute. Id. at 1037-41 . Here, the issues are not comparably intertwined. The jurisdictional question of whether the court is capable of granting the relief Lycurgan requests does not depend on resolving the only factual question genuinely in dispute — whether the missing receivers were lost or are missing only because there was a miscount. As a consequence, Lycurgan’s request for injunctive relief has been rendered moot. 1 AFFIRMED. This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. . Given these circumstances, we decline to reach the remainder of Lycurgan’s arguments. In addition, Lycurgan’s motion to file a late brief is granted, Dkt. No. 36, and its motion to extend the time to file its reply is denied as moot, Dkt. No. 31. Lycurgan’s two motions for judicial notice are denied. See Dkt. Nos. 15, 37.