No Extension of Time for DOJ in Case Over Seized 'Drug Paraphernalia,' Importer Tells CIT

The U.S.'s bid for more time to respond to importer Eteros Technologies USA's motion for judgment should be denied since the Department of Justice has not shown good cause for the extension, Eteros said in an Oct. 7 brief at the Court of International Trade. The case concerns CBP's seizure of Eteros' motor frame assemblies -- part of a marijuana and plant harvesting unit -- under the premise that the assemblies constitute "drug paraphernalia."

Eteros imported the motor frame assemblies in April through the Port of Blaine, Washington, describing the goods as being used to create the Mobius 108S Trimmer. In its motion for judgment, Eteros challenged CBP's seizure of these assemblies as defying the authorization exemption for drug paraphernalia where those goods are allowed to be imported and sold in a given state (see 2109140036).

Now, DOJ is dragging its feet on issuing a response to this motion for judgment, Eteros said. "The Government has used procedural defenses in an effort to delay judicial determination, resulting in massive uncertainty within [cannabis] industries," the brief said. Eteros expressed the importance of avoiding delays in this litigation since it represents a key legal issue for the marijuana industry: can these companies import goods deemed federally as drug paraphernalia if a certain state has legalized its use?

DOJ does not need more time to proceed with litigation in this case, Eteros said. "And to be clear, Defendant offers no 'good cause' in its Motion for an Extension of Time," the brief said. "The only 'good cause' Defendant cites is that the additional 'time will permit the United States to further consult with the agency in order to fully respond to Eteros’ motion and will allow time for the Government’s responsive brief to be reviewed at the required levels within the Department of Justice.' Defendant has had ample time to devise its litigation strategy."

In fact, DOJ has appeared in a "virtually identical action," in the case of Root Sciences Inc. v. Uinted States. That case was just dismissed from CIT for a lack of jurisdiction after the court found that it does not have jurisdiction in cases over seized goods, but it does over excluded goods (see 2110070022). The issue of jurisdiction has also been central to the marijuana industry's cases over these seizures, with certain players, including Eteros, accusing the federal government of playing "judicial keep-away" with these cases (see 2105030053).

"Considering that litigants in this Court and others have complained that the Government is intentionally playing 'judicial keep-away' whenever the 21 U.S.C. § 863(f)(1) question is raised in litigation, the Court should be reluctant to grant additional time except under the most exceptional of circumstances," the brief said.