Summary
rejecting argument that the Government's complaint should be dismissed for improper service of process because defendant was personally served by an IRS officer
Summary of this case from U.S. v. GuldmanOpinion
Case No. 5:02-cv-230-Oc-10GRJ
August 29, 2003
Eddie R. Kahn, pro se Maurya McSheehy, Counsel of Record
ORDER
This case is before the Court for consideration of the Defendant's Motion to Dismiss (Doc. 11) to which the Plaintiff has responded (Doc. 13). This case is also before the Court for consideration of the Plaintiffs Motion for Judgment on the Pleadings (Doc. 10). The Defendant has not responded to this motion, and the time for doing so has passed.
Middle District of Florida Local Rule 3.01(b).
Background and Facts
The Plaintiff, the United States of America, brought this action on August 8, 2002, seeking judgment against the Defendant, Eddie R. Kahn, for unpaid federal income tax liabilities for the years 1986, 1987 and 1988, totaling $56,622.86 as of July 17, 2002. On September 13, 2002, pursuant to the Plaintiffs suggestion of the Defendant's bankruptcy (Doc. 4), this Court administratively closed the file, subject to re-open if the automatic stay was lifted (Doc. 5). While this action was stayed, the Defendant, appearing pro se, filed his "Acceptance and Response to Summons and Complaint" (Doc. 6) in which he alleged that the Complaint contained several procedural defects, but admitted all of the substantive allegations in the Complaint.On June 23, 2003, the Court entered an Order (Doc. 9) re-opening this case upon the Bankruptcy Court's dismissal of the Defendants petition for bankruptcy. The Plaintiff filed its Motion for Judgment on the Pleadings (Doc. 10) on July 3, 2003. The Defendant has not responded to this motion. However, the Defendant filed a motion to dismiss (Doc. 11) on July 17, 2003. Upon due consideration and for the following reasons, the Defendant's motion to dismiss is due to be denied, and the Plaintiffs motion for judgment on the pleadings is due to be granted.
Motion to Dismiss Standard
In passing on a motion to dismiss under Rule 12(b)(6), the Court is mindful that "[d]ismissal of a claim on the basis of barebones pleadings is a precarious disposition with a high mortality rate." Thus, if a Complaint "shows that the Plaintiff is entitled to any relief that the Court can grant, regardless of whether it asks for the proper relief, " it is sufficiently plead. As the Supreme Court declared in Conley v. Gibson, a complaint should not be dismissed for failure to state a claim unless it appears "beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief." The Federal Rules of Civil Procedure "do not require a claimant to set out in detail the facts upon which he bases his claim." Instead, all that is required is that the claimant set forth a "short and plain statement of the claim" sufficient to give the defendant "fair notice of what the plaintiffs claim is and the grounds upon which it rests." However, "while notice pleading may not require that the pleader allege a 'specific fact' to cover each element of a claim, it is still necessary that a complaint contain either direct or inferential allegations respecting all the material elements necessary to sustain a recovery under some viable legal theory."
Int'l Erectors, Inc. v. Wilhoit Steel Erectors Rental Serv. 400 F.2d 465, 471 (5th Cir. 1968).
Dotschay v. Nat. Mut. Ins. Co., 246 F.2d 221 (5th Cir. 1957).
Conley v. Gibson, 355 U.S. 41, 45-46 (1957). See also Cook Nichol, Inc. v. The Plimsoll Club, 451 F.2d 505 (5th Cir. 1971).
Conley, 355 U.S. at 47.
Id.
Roe v. Aware Woman Center for Choice, Inc., 253 F.3d 678, 683 (11th Cir. 2001) (quotations omitted).
Discussion
The Defendant argues that the Plaintiffs Complaint should be dismissed for improper service of process. The Defendant admits that he was personally served with a copy of the Complaint by Revenue Officer C. Cochran of the United States Internal Revenue Service. However, the Defendant asserts that Mr. Cochran did not have the power to serve process on him. Specifically, the Defendant argues that because Mr. Cochran is an agent of the IRS and an employee of the United States Government, he was a party to the action; therefore, he could not properly serve the Defendant in accordance with Federal Rule of Civil Procedure 4(c)(2), which provides that "[s]ervice may be effected by any person who is not a party. . . ."The Defendant's argument is without merit. The phrase "any person who is not a party" does not preclude service of process by the representative of a party. Accordingly, the Defendant's motion to dismiss (Doc. 11) is due to be denied.
United States v. Gregor, No. 86 C 8103, 1989 WL 6388 at *1 (N.D. Ill. Jan. 26, 1989) (service by an IRS employee was not service of process by a party); Commodity Futures Trading Comm'n v. American Metals Exchange Corp., 693 F. Supp. 168, 186 (D.N.J. 1988).
Judgment on the Pleadings Standard
Judgment on the pleadings is appropriate where there are no material facts in dispute and the moving party is entitled to judgment as a matter of law. For purposes of a motion for judgment on the pleadings, all the non-moving party's pleadings are taken as true, and, if denied, the moving party's allegations are taken as false. "In other words, a judgment on the pleadings alone, if sustained, must be based on the undisputed facts appearing in all the pleadings." "If, on a motion for judgment on the pleadings, matters outside of the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment. . . . " However, attachments to pleadings may be considered without converting the motion into one for summary judgment.
Cannon v. City of West Palm Beach, 250 F.3d 1299, 1300 (11th Cir. 2001).
Stanton v. Larsh, 239 F.2d 104, 106 (5th Cir. 1957).
Id.
Horsley v. Feldt, 304 F.3d 1125, 1134 (11th Cir. 2002).
Discussion
The Plaintiff argues that it is entitled to judgment on the pleadings because the Defendant has admitted all of the substantive facts in the Plaintiffs Complaint. This Court agrees.In his "Acceptance and Response to Summons and Complaint" (Doc. 6), the Defendant raises several incomprehensible and irrelevant defenses directed at perceived procedural defects in the Plaintiffs Complaint. Specifically, the Defendant contends that the Complaint (1) is "an incomplete instrument pursuant to UCC 3-115;" (2) was improperly served by an agent of the Plaintiff; (3) does not contain evidence of a "written instrument, agreement, or contract containing the Defendant's bona fide signature, per UCC 3-401, which created the alleged claim" and compelled "the Defendant's performance under any purported commercial agreement, UCC 1-201(3);" (4) was not served as required by Federal Rule of Civil Procedure 5(a); (5) is not verified; (6) does not contain a verified statement of account; and (7) does not contain an "instrument bonding this matter." The Defendant also alleges that his property is exempt from levy, and that he sent to the Secretary of the Treasury a letter described as a "Registered Bill of Exchange . . . for discharge of any purported claim" which was not "dishonored" by the Secretary. Upon due consideration, the Court finds that the Defendant's averments in his responsive pleading do not constitute valid defenses to this action.
The Defendant attached this letter to his responsive pleading.
More importantly, the Court finds that the Defendant has admitted all of the allegations in the Complaint. Paragraphs seven and eight of Defendant's responsive pleading (Doc. 6) read:
7. Notwithstanding the foregoing enumerated commercial process and procedural defects, the Respondent does not dispute any facts in the instant matter.
8. Respondent accepts for value the Summons, Complaint, and all the facts of this case including, but not limited to, all charges, offers, and dishonors; and the same are returned to this court in exchange for settlement and closure of this account.
Doc. 6, ¶ 7 (emphasis in original).
Id. at ¶ 8 (emphasis in original).
Thus, it is undisputed that the Defendant has not paid the $56,622.86 of tax, interest and penalties assessed against him by the Treasury. Federal tax assessments are presumptively correct. Accordingly, the Court finds that there are no material disputes of fact, and the Plaintiff is entitled to judgment as a matter of law.
See, e.g., United States v. Janis, 428 U.S. 433, 440 (1976);Feldman v. Commissioner of Internal Revenue, 20 F.3d 1128, 1132 (11th Cir. 1994); Davoli v. United States, 74 F. Supp.2d 1182, 1186 (M.D. Fla. 1999).
Conclusion
Accordingly, upon due consideration, it is ordered that:(1) the Defendant's motion to dismiss (Doc. 11) is DENIED;
(2) the Plaintiffs Motion for Judgment on the Pleadings (Doc. 10) is GRANTED;
(3) the Clerk is directed to enter judgment for the Plaintiff in the amount of $56,622.86, plus interest as provided by law from July 17, 2002;
(4) the Clerk is further directed terminate all pending motions and close the file.
IT IS SO ORDERED.