Opinion
Case No. 05-80351-CIV-RYSKAMP/VITUNAC.
August 16, 2005
ORDER DENYING MOTION TO DISMISS
THIS CAUSE comes before the Court upon Defendant's Motion to Dismiss [DE 3] filed on June 22, 2005. One July 28, 2005, Plaintiff filed a Reply to Motion to Dismiss and Memorandum of Law [DE 5], as well as an Affidavit [DE 6] in support thereof. Defendant filed a Reply Memorandum [DE 7] on August 7, 2005.
I. Introduction
This is an action for judicial review of a Collection Due Process determination made by the Office of Appeals for the Internal Revenue Service ("IRS"). See Pet. for Lien or Levy Action Under Code Sec. 6320(c) or 6330(d) [DE 1]. As stated in the Petition, the IRS issued a Notice of Determination on March 23, 2005, advising Plaintiff that he had thirty days to file a complaint in a district court for redetermination. See id at ¶ 2, Exh. "A". Plaintiff filed his complaint on April 25, 2005, three days after the thirty day period had lapsed. Defendant now moves this Court to dismiss this case on the basis that the Court lacks subject matter jurisdiction.
In his response, Plaintiff concedes that he was required to file his complaint by April 22, 2005, but claims that he was prevented from doing so by an employee at the Clerk's office. Specifically, Plaintiff contends that one Verniece Thomas refused to accept the Petition from the process server retained by Plaintiffs attorney, because the county in which the action arose was not circled on the Civil Cover Sheet. Plaintiff further alleges that Ms. Thomas instructed the process server to return to the Clerk's office on the following business day (April 25, 2005), and stated that she would stamp the Petition as having been filed on April 22, 2005 if he returned by 10:00 a.m. However, when the process server returned the following Monday, Ms. Thomas refused to back-date the complaint because he did not reach the front of the line until 10:45 a.m.
Defendant replies that the thirty day limitations period in Section 6330 is not subject to equitable tolling. Additionally, Defendant argues that even if equitable tolling were available, Plaintiff has failed to show extraordinary circumstances to justify the untimely filing of his complaint.
II. Discussion
A motion to dismiss for lack of subject matter jurisdiction tests a federal court's authority to adjudicate a case. See Fed.R.Civ.P. 12(b)(1). The plaintiff bears the burden of establishing that subject matter jurisdiction exists when a defendant contests its existence. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). Jurisdiction exists when a federal court has both the constitutional and statutory authority to adjudicate the dispute. See Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377 (1994). Federal courts are courts of limited jurisdiction; they may only hear cases over which there has been a congressional grant of jurisdiction. See Smith v. GTE Corp., 236 F.3d 1292, 1299 (11th Cir. 2001).
When a suit is brought against the United States, an additional jurisdictional question arises, i.e. whether the action is barred by sovereign immunity. See F.D.I.C. v. Meyer, 510 U.S. 471, 475 (1994). Courts have construed Section 6330(d)(1) as a limited waiver of sovereign immunity in favor of taxpayers who disagree with the outcome of a collection due process hearing. See Render v. I.R.S., 309 F. Supp. 2d 938, 941 (E.D. Mich. 2004) (citing various cases). Since waivers of sovereign immunity are construed narrowly, any procedural requirements — such as the filing deadline in Section 6330(d) — must be strictly complied with. Accordingly, federal courts have consistently denied pleas to apply the equitable tolling doctrine to the thirty day limitations period of Section 6330(d). See, e.g., Kone v. Ashcroft, No. Civ.PJM 04-1996, 2004 WL 2944186, at *3 (D. Md. Nov. 16, 2004); McNeil v. U.S., No. 1:01 CV 597, 2002 WL 507821, at *4 (W.D. Mich. Mar. 7, 2002); Walz v. U.S., No. CIV.01-1858 (RHK/RLE), 2002 WL 523880, at *3 (D. Minn. 2002); McCune v. Comm'r of Internal Revenue, 115 T.C. 114, 117 (U.S. Tax. Ct. 2000).
Notwithstanding the foregoing, the Court need not reach the issue of whether the jurisdictional thirty day time limit of Section 6330(d) is subject to equitable tolling, or whether the circumstances presented by Plaintiff warrant an extension. Fed.R.Civ.P. 5(e) provides that "[t]he clerk shall not refuse to accept for filing any paper presented for that purpose solely because it is not presented in proper form as required by these rules or any local rules or practices." Thus, Rule 5(e) on its face mandates that the clerk accept pleadings for filing even when the pleading technically does not conform with form requirements of the Federal Rules of Civil Procedure or the local rules. See McClellon v. Lone Star Gas Co., 66 F.3d 98, 101 (5th Cir. 1995). By using the word "shall," the rule removes from the clerk of the court any discretion in the decision to accept a technically deficient pleading. Id. Moreover, the Advisory Committee notes regarding the 1991 amendment to Rule 5(e) expressly delegates to the court the task of eliminating insufficient pleadings: "This is not a suitable role for the office of the clerk, and the practice exposes litigants to the hazards of time bars; . . . [t]he enforcement of these rules and of the local rules is a role for a judicial officer." Id. Accordingly, the clerk does not possess the power to reject a pleading for lack of conformity with form requirements, and a pleading is considered filed when it is received by, placed in the actual or constructive possession of, or reached the custody of, the Clerk of the Court. Id. See also Loya v. Desert Sands Unified Sch. Dist., 721 F.2d 279, 280 (9th Cir. 1983).
In this case, Plaintiff contends, and the process server attests, that Ms. Thomas refused to file the complaint because a section of the Civil Cover Sheet indicating what county the action arose was not completed. The Court observes that the Civil Cover Sheet did, however, indicate Palm Beach County as Plaintiffs county of residence, and that a brief perusal of the three page complaint would have revealed that information as well. In any event, a deficiency in a civil cover sheet is a lack of conformity with a form requirement, and does not justify a clerk's refusal to file the complaint. Moreover, the Court observes that the deficiency was corrected as soon as reasonably practicable, by the next business day. Accordingly, it is appropriate for this Court to deem the complaint timely filed on April 22, 2005. See, e.g., Gilardi v. Schroeder, 833 F.2d 1226, 1233 (7th Cir. 1987) (deeming a complaint filed within limitations period when placed in the custody of the clerk within the statutory period, although the complaint was filed without a filing fee); Cintron v. Union Pacific R. Co., 813 F.2d 917, 920-21 (9th Cir. 1987) (holding that appellant constructively filed his complaint when he delivered it to the clerk of court, although he he did not punch two holes at the top of the pleading and did not submit a civil cover sheet, in contravention of local rules); Loya, 721 F.2d at 280 (reversing district court's dismissal of action as time-barred, where clerk rejected a "timely presented complaint" because it was typed on 8½" × 13" paper instead of 8½ × 11 paper); In re Replogle, 70 B.R. 444, 446 (Bkrtcy. D. Mont. 1987) (deeming complaint filed on the day clerk received it, although the clerk did not file the complaint and returned it with a note stating that the filing fee was not paid and no civil cover sheet attached). See also generally Walz, 2002 WL 523880, at *3 (finding, per local rule, that complaint was filed on the date when plaintiff filed a complaint without a civil cover sheet, not on the date that a completed civil cover sheet was submitted).
In conclusion, this Court concludes that although the thirty day limitations period of Section 6330(d) must be strictly construed, Plaintiff timely filed his complaint when he presented it to the Clerk of the Court on April 22, 2005. Accordingly, the Defendant's Motion to Dismiss is denied.
III. Conclusion
Based on the foregoing, it is hereby,
ORDERED AND ADJUDGED that Defendant's Motion to Dismiss [DE 3] is DENIED.
DONE AND ORDERED.