Opinion
Case No. A05-0206 CV (JKS).
November 28, 2005
ORDER
In this case Plaintiffs identify Dennis Parizek and Michael Walsh as employees of the Internal Revenue Service ("IRS"), and General Communications, Inc. ("GCI") as Stephen Collier's employer. The Colliers contend that Parizek and Walsh, while acting as IRS agents, assessed a tax liability against Stephan Collier and levied upon Collier's wages with GCI. The Colliers allege that the assessment and levy are not in conformity with law and that they have informed Parizek, Walsh and GCI of that fact and that Parizek and Walsh continue to divert Collier's wages and GCI continues to honor the levy. The Colliers seek an injunction preventing Parizek and Walsh from in effect garnishing Collier's wages and preventing GCI from honoring the levy. The United States has entered an appearance on behalf of Parizek and Walsh and moved to dismiss the Collier's action. GCI, through counsel, has entered an appearance and moved to dismiss the Collier's action, pointing out that this Court previously dismissed a related action by the Colliers that sought to prevent GCI from honoring the IRS levy.
There are a number of pending matters that will be addressed in this order. First, the Colliers question the authority of the Department of Justice to assign an attorney to represent Parizek and Walsh where Parizek and Walsh are sued in their individual capacity rather than in their official capacity. It is clear that the Attorney General has the authority to represent the United States, its agencies, officers, and employees in any case in which the United States has an interest. See, e.g., 28 U.S.C. § 516 et seq. The United States has an interest in the collection of income taxes. Cf. Huff v. United States, 10 F.3d 1440 (9th Cir. 1993) (discussing the related issue of a lawyer from the Tax Division representing the United States in actions to quiet title to personal property pursuant to 28 U.S.C. § 2410). The Collier's objection to the United States providing a defense for Parizek and Walsh is therefore rejected.
The Colliers seek to default Parizek and Walsh. Docket Nos. 39; 40. The United States has entered an appearance on behalf of Parizek and Walsh and filed a motion to dismiss. Docket Nos. 26 (Mot.); 32 (Opp'n). A motion to dismiss is treated as a defense under Federal Rule of Civil Procedure 55(a), which precludes a default. See Fed.R.Civ.P. 12(a)(4), (b). Since Parizek and Walsh have, through counsel, filed a responsive motion to dismiss, default is not available.
The Colliers make a motion for sanctions against the United States. Docket Nos. 42 (Mot.); 45 (Opp'n). There is no merit in the motion it will therefore be denied. The Colliers move for reconsideration of this Court's order at docket no. 28, in which the Court questioned service in this case. Docket No. 34. Since Parizek and Walsh have entered an appearance and filed a motion to dismiss, further consideration of service on them is moot. The motion for reconsideration will therefore be denied.
The Government has moved to expunge the default previously entered against Walsh. Docket No. 20. This motion was granted by order at docket no. 28. That order is reaffirmed.
John Snyder moves for an order substituting himself as counsel for Parizek and Walsh and the United States. Docket No. 25. The motion will be granted. All service on Parizek, Walsh, and the United States pursuant to Federal Rule of Civil Procedure 5 shall hereafter be made on Snyder at his office in Washington, D.C.
The Colliers seek discovery. Docket No. 41. By extension, the Colliers may be requesting the issuance of a scheduling and planning order to provide for procedures to bring this case to trial. See Fed.R.Civ.P. 16. A motion to dismiss filed by the United States is currently pending. Docket No. 26. GCI has also filed a motion to dismiss. Docket No. 44. In the interest of efficient supervision of this case, these motions should be decided prior to scheduling discovery. The Court will therefore deny the motion at docket no. 41 and defer issuing a scheduling and planning order until the motions to dismiss are decided. If the motions are denied, the Court will schedule a pretrial conference to aid in the preparation of a scheduling and planning order. See Fed.R.Civ.P. 16.
IT IS THEREFORE ORDERED:
The motions for entry of default at Docket Nos. 39 and 40 are DENIED. The motion for sanctions at Docket No. 42 is DENIED. The motion for reconsideration at Docket No. 34 is DENIED. The motion at Docket No. 25 is GRANTED. The motion at Docket No. 41 is DENIED.