Opinion
2:22-cv-01746-JAD-VCF
02-28-2023
Paula Conner, Plaintiff v. United States of America and C.K. O'Neil, Defendants
ORDER VACATING DISMISSAL ORDER AND RESETTING BRIEFING ON MOTION TO DISMISS [ECF NOS. 6, 7]
Jennifer A. Dorsey, U.S. District Judge
Paula Conner brought this suit against the United States of America and “IRS Officer C.K. O'Neal,” seeking ten million dollars and other relief for a multitude of constitutional violations caused by the collection of taxes from her, a “Living Soul” who is exempt from taxation. The government moved to dismiss Conner's suit with prejudice for lack of subject-matter jurisdiction, for insufficient service, and for failure to state a viable claim. When Conner's deadline to oppose that motion passed without response, I granted the motion under Local Rule 7-2(d), which allows this court to deem such silence consent to grant the unopposed motion, and I entered judgment and closed this case.
ECF No. 1.
ECF No. 3.
ECF No. 4.
Conner moves to vacate that dismissal, explaining that she didn't oppose the motion to dismiss because she never received it. The government opposes her motion, arguing that it did serve a copy of the motion on Conner-just to her old address that it had from her prior lawsuit. Nevertheless, it contends, she should have been monitoring the docket and anticipating some filing, so she should have discovered the filing on her own. The government adds that reinstating this case would be futile because Conner's claims will have to be dismissed as meritless and for lack of proper service and failure to exhaust.
ECF No. 6.
ECF No. 8.
Id. at 5-6.
Conner has demonstrated that she is entitled to relief from this court's dismissal order. The court granted the motion to dismiss solely based on Conner's failure to respond to it, and she has shown that it was the government's use of an old address that caused her not to respond. I thus find that Conner is entitled to a full and fair opportunity to respond to the government's motion to dismiss. I thus vacate the dismissal order and resulting judgment and reinstate the motion to dismiss so that Conner may have a fair chance to respond to the arguments raised in it.
IT IS THEREFORE ORDERED that the plaintiff's motion to alter or amend [ECF No. 6] is GRANTED. The order granting the motion to dismiss with prejudice [ECF No. 4] and the resulting judgment [ECF No. 5] are VACATED. Plaintiff's motion for a hearing and reinstatement of this action [ECF No. 7] is DENIED as moot.
The Clerk of Court is directed to:
• SEND to plaintiff a copy of the motion to dismiss [ECF No. 3] and REACTIVATE that motion; and
• REOPEN this case.
IT IS FURTHER ORDERED that Conner will have until March 20, 2023, to file (and serve on the defendants) a response to the motion to dismiss [ECF No. 3]. The defendants will have 10 days after service of that response to file a reply.