Opinion
Case No. 4:01 CV 112
January 31, 2002.
Herbert West Linder, U.S. Department of Justice, Dallas TX., for Plaintiff.
Brett B. Flagg, Flagg Law Group, Dallas TX., Don C. Loeffler, and Tracy M. Loeffler, Murphy, TX., for Defendants.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Pending before the Court is Defendant Don C. Loeffler's Motion to Dismiss and having considered the motion, and the response thereto, the Court is of the opinion that the motion should be denied.
This suit involves an action by the United States to reduce to judgment certain tax assessments and to foreclose federal tax liens on certain real and personal property of Don C. Loeffler and others. Defendant Don C. Loeffler, pro se, requests that the Court grant his motion to dismiss. The Court has previously denied Defendant's request for summary judgment where Defendant argued the following: (1) that the U.S. Department of Justice, Tax Division had not provided any delegation of authority authorizing representation of the Internal Revenue Service ("IRS"); and (2) that the IRS cannot file a lien and/or the liens are not valid.
On December 4, 2001, Defendant filed his motion to dismiss asserting that the Internal Revenue Service ("IRS") failed to respond to his Claim for Release of Erroneous Notice of Lien/Levy which asserted procedural errors on the part of the IRS. Defendant asserts that he sent his claim to the IRS on or about April 30, 1998. Defendant argues that since the IRS never responded to his claim. The case should be dismissed. On December 19, 2001, the United States filed a response.
26 U.S.C. § 6326 provides as follows:
. . . any person shall be allowed to appeal to the Secretary after the filing of a notice of a lien under this subchapter on the property or the rights to property of such person for a release of such lien alleging an error in the filing of the notice of such lien.
The United States asserts that Defendant's requests created no legal duty on the IRS to respond since the requests alleged no facts which required a response. The United States also asserts that the federal tax liens were filed on or about August 11, 1999 which is after Defendant's requests.
Defendant cites to 26 U.S.C. § 6343 which provides for the release of levies and the return of property that has been wrongfully levied upon. Reliance upon this provision is misplaced. The IRS has not levied upon the property which is subject to this lawsuit. The United States seeks to foreclose on its filed federal tax liens on the subject property as part of its relief in this case.
Prior decisions of both the United States Supreme Court and the Fifth Circuit Court of Appeals have made it clear that motions to dismiss for failure to state a claim upon which relief can be granted should not be granted lightly. For a complaint to be dismissed for failure to state a claim, it must appear "beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief."Conley v. Gibson, 78 S.Ct. 99, 102 (1957); Reeves v. City of Jackson, Mississippi, 532 F.2d 491 (5th Cir. 1976).
Absent a claim which is obviously insufficient, a court should not grant a Rule 12(b)(6) motion to dismiss, thereby denying the plaintiff an opportunity to develop facts to support his complaint. Moreover, sufficient procedures are available to a defendant to seek summary disposition of a lawsuit after a plaintiff has been afforded some opportunity to develop facts to support his complaint. Reeves, 532 F.2d at 494.
Defendant has failed to meet his burden on his motion to dismiss and the motion to dismiss should be denied.
RECOMMENDATION
Based upon the forgoing, it is the recommendation that Defendant's Motion to Dismiss should be DENIED.
Within ten (10) days after receipt of the magistrate judge's report, any party may serve and file written objections to the findings and recommendations of the magistrate judge. 28 U.S.C.A. 636(b)(1)(C).
Failure to file written objections to the proposed findings and recommendations contained in this report within ten days after service shall bar an aggrieved party from de novo review by the district court of the proposed findings and recommendations and from appellate review of factual findings accepted or adopted by the district court except on grounds of plain error or manifest injustice. Thomas v. Arn, 474 U.S. 140, 148 (1985); Rodriguez v. Bowen, 857 F.2d 275, 276-77 (5th Cir. 1988).