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Gonser v. U.S.

United States District Court, M.D. Georgia
Aug 26, 2003
CIVIL ACTION FILE NO. 5:00-CV-298-2-WBH (M.D. Ga. Aug. 26, 2003)

Opinion

CIVIL ACTION FILE NO. 5:00-CV-298-2-WBH

August 26, 2003


ORDER


Before the Court are Defendant's Motion to Strike Jury Demand [39] and Attorney Neal Weinberg's Motion to Withdraw as Counsel [44].

BACKGROUND

In its Order of May 21, 2001, the Court set forth many of the underlying case and will not recite them again here. However, to the extent that they give context to this Order, they are back incorporated herein.

Plaintiff, a Certified Public Accountant ("CPA") who was employed as an agent at the Internal Revenue Service ("IRS") from 1971 through 1982, filed a complaint against IRS and three IRS employees seeking damages and injunctive relief. Plaintiff alleged Defendants violated federal law and internal IRS rules when they engaged in a violent course of action against him. According to Plaintiff, Defendants retaliated against him because of his role in seeking the ouster of an IRS group manager while plaintiff employed as an agent in the Macon, Georgia IRS office. On April 24, 2003, this Court granted in part Defendants' motion to dismiss Plaintiffs amended complaint, resulting in the dismissal of the individual defendants and of certain claims. Remaining in this action are Plaintiff's claims against the United States for unlawful disclosure of tax return information in violation of 26 U.S.C. § 7431 and unauthorized enticement under 26 U.S.C. § 7435.

DISCUSSION

I. Motion to Strike Jury Demand

Defendant United States moves to strike the demand for jury trial asserted in the consolidated amended complaint because Plaintiff is not entitled to a jury trial on either claim remaining in this action. As Defendant points out, there is no constitutional right to a jury trial against the United States unless Congress has unambiguously created such a right by statute. See Lehman v. Nakshian, 453 U.S. 156, 164(1981). Because Sections 7431 and 7435 of the Internal Revenue Code do not unambiguously provide for a jury trial, Defendant contends that no such right exists. Plaintiff has found no authority to refute Defendant's position and does not object to a bench trial. Accordingly, Defendant's motion to strike is GRANTED. This case will be tried to the Court once discovery is completed and the Pretrial Order is filed.

II. Motion to Withdraw

Neal Weinberg moves the Court to withdraw as counsel for Plaintiff. Mr. Weinberg has complied with the requirements of Local Rule 83.1. Plaintiff did not respond to the Notice of Motion to Withdraw as Counsel, which was sent to him via Certified and First Class Mail.

Mr. Weinberg's motion to withdraw is hereby GRANTED. Mr. Weinberg is ORDERED to serve a copy of this Order on Plaintiff. Because it appears that Plaintiff has refused to accept the Notice of Motion to Withdraw sent via Certified Mail, the Clerk is also DIRECTED to send a copy of this Order to Plaintiff at P.O. Box 5377, Macon, GA 31204.

Plaintiff is hereby ORDERED to advise the Court, in writing, within fifteen (15) days of the date of this Order, whether Plaintiff plans to proceed pro se or obtain other legal counsel. If Plaintiff plans to proceed pro se, Plaintiff must also provide an address and daytime telephone number to the Court where Plaintiff can be reached. In the event new counsel is retained, Plaintiff shall provide the name, address, and telephone number of new counsel, and that counsel shall file a notice of appearance within twenty (20) days of the date of this Order. Plaintiff's failure to comply with this Order will result in dismissal of this action.

CONCLUSION

For the reasons set forth above, Defendant's Motion to Strike Jury Demand [39] is GRANTED, and Attorney Neal Weinberg's Motion to Withdraw as Counsel [44] is GRANTED.

It is so ORDERED.


Summaries of

Gonser v. U.S.

United States District Court, M.D. Georgia
Aug 26, 2003
CIVIL ACTION FILE NO. 5:00-CV-298-2-WBH (M.D. Ga. Aug. 26, 2003)
Case details for

Gonser v. U.S.

Case Details

Full title:FRED L. GONSER, Plaintiff, v. UNITED STATES OF AMERICA, on behalf of the…

Court:United States District Court, M.D. Georgia

Date published: Aug 26, 2003

Citations

CIVIL ACTION FILE NO. 5:00-CV-298-2-WBH (M.D. Ga. Aug. 26, 2003)