Opinion
No. 4:05-cv-00206-JEG.
November 2, 2005
ORDER
This matter is before the Court on Plaintiffs' Motion for This Court to Take Judicial Notice, Motion to Strike/Motion for Lack of Standing, and Motion to Reconsider, each of which Defendants resist. On October 31, 2005, Plaintiffs filed an additional Motion to Strike and Motion to Reconsider, to which Defendants have not yet filed a resistance, though the Court notes the time in which to file a resistance has not yet lapsed. Plaintiffs have requested an evidentiary hearing. Upon review of the merits of the motions, neither resistance by the Defendants nor hearing is necessary. The matter is fully submitted. For the reasons discussed below, Plaintiffs' motions must be denied.
APPLICABLE LAW AND DISCUSSION
A summary of the material facts of this case can be found in the Court's Order filed on August 11, 2005, and need not be repeated herein.
I. Motion for Reconsideration
On August 11, 2005, this Court entered an order granting Defendants' Motion to Dismiss. On September 23, 2005, Plaintiffs filed a Motion to Reconsider the Order on the Motion to Dismiss. Plaintiffs generally state they are so moving pursuant to Rule 27(b), without specifying the particular set of rules. It appears likely Plaintiffs are referencing Federal Rule of Appellate Procedure 27(b), since Federal Rule of Civil Procedure 27(b) addresses the taking of depositions pending appeal. However, this matter is not on appeal but still before this Court, so the Federal Rules of Civil Procedure apply. Federal Rule of Civil Procedure 59(e) governs motions to reconsider. "Any motion to alter or amend a judgment shall be filed no later than 10 days after entry of the judgment." Fed.R.Civ.P. 59(e). Plaintiffs' Motion to Reconsider, filed on September 23, 2005, is untimely. Plaintiffs' Motion to Reconsider is therefore denied. Plaintiffs' October 31, 2005, Motion to Reconsider, which presents the same arguments as the September 23, 2005, Motion to Reconsider, is untimely and is therefore denied.
II. Motion to Take Judicial Notice
On August 30, 2005, Plaintiffs filed a Motion for this Court to Take Judicial Notice pursuant to Fed.R.Evid. 201. The Court has found that Plaintiffs' Motion to Reconsider is untimely, thus given the Court's prior dismissal of this case, there currently exists no case or controversy. Plaintiffs' Motion to Take Judicial Notice is therefore denied as moot.
III. Motion to Strike and Vacate United States' Pleadings/Motions for Lack of Standing and Motion to Strike
On August 30, 2005, Plaintiffs filed a Motion to Strike and Vacate United States' Pleadings/Motions for Lack of Standing. Plaintiffs claim that because their complaint was expressly filed against Defendants in their individual capacities, counsel for the United States has trespassed on this case as an interloper, having no standing to file a motion of any kind. Plaintiffs argue that all pleadings and/or motions by the United States have no relevance in this Court and should be stricken and vacated from the record.
For the reasons explained in the Court's August 11, 2005, Order, the case law makes clear that Plaintiffs' Bivens action against IRS Agents Jones and Albright in their individual capacities is precluded. Stated simply, this means Plaintiffs cannot bring suit against Agents Jones and Albright in their individual capacities. To the extent Plaintiffs brought suit against Jones and Albright in their official capacities as IRS Agents, the suit is treated as a suit against the IRS. "It is well settled that an official-capacity suit is, in all respects other than name, to be treated as a suit against the entity."Buford v. Runyon, 160 F.3d 1199, 1201 n. 3 (8th Cir. 1998) (quoting Kentucky v. Graham, 473 U.S. 159, 166 (1985)); see also Searcy v. Donelson, 204 F.3d 797, 798 (8th Cir. 2000). "Except as otherwise authorized by law, the conduct of litigation in which the United States, an agency, or officer thereof is a party, or is interested, and securing evidence therefor, is reserved to officers of the Department of Justice, under the direction of the Attorney General." 28 U.S.C. § 516.
The Solicitor General, or any officer of the Department of Justice, may be sent by the Attorney General to any State or district in the United States to attend to the interests of the United States in a suit pending in a court of the United States, or in a court of a State, or to attend to any other interest of the United States.28 U.S.C. § 517. Pursuant to this statutory authority, United States Department of Justice counsel is authorized to represent the IRS in this matter. Plaintiffs' Motion to Strike/Motions for Lack of Standing is without merit and is therefore denied. Plaintiffs' October 31, 2005, Motion to Strike, which presents arguments identical to those contained in the August 30, 2005, Motion to Strike, is without merit and is therefore denied.
CONCLUSION
Plaintiffs' Motion to Reconsider (Clerk's No. 15) is untimely and is therefore denied. Plaintiffs' Motion to Reconsider (Clerk's No. 17) is untimely and is therefore denied. Plaintiffs' Motion for This Court to Take Judicial Notice (Clerk's No. 9) is denied as moot. Plaintiffs' Motion to Strike and Vacate United States' Pleadings/Motions for Lack of Standing (Clerk's No. 10) is without merit and is denied. Plaintiffs' Motion to Strike Defendants' Response (Clerk's No. 18) is without merit and is denied.
IT IS SO ORDERED.