Opinion
CIV No. 02-1664 Conway
April 9, 2003
MEMORANDUM OPINION AND ORDER
THIS MATTER comes before the Court on Defendants' Motion to Dismiss, filed February 14, 2003. Having reviewed the motion, memoranda and all relevant authorities, this Court Finds Defendants' motion well taken and it is thus granted.
I. Background
On November 17, 1997, the Government instituted a suit to recover over $900,000 in alleged tax liabilities against Plaintiff for the years 1976 through 1989. Judge Robin J. Gauthron of the United States District Court For the Western District of Oklahoma, granted the Government's motion for summary judgment against Plaintiff and Sandra Vance, which alleged that Plaintiff fraudulently transferred the title of his real property to the "Vance Irrevocable Family Trust 'A'."
Judge Cauthron entered judgment against Plaintiff and in favor of the Government for $983,340.32 plus interest on August 17, 1999. The court concluded that the Government's federal tax liens attached to all property allegedly transferred by Plaintiff into the trust and authorized the Government to foreclose on its tax liens and sell Plaintiffs real property. The Government sold Plaintiffs property in December 2002.
In the present action, Plaintiff seeks injunctive relief to prevent the Government from collecting the assessed tax liabilities. Plaintiff also requests the Court to refer the individual Defendants for criminal prosecution under the Internal Revenue Code.
II. Standard of Review
Dismissal of a pro se complaint for failure to state a claim is proper only where it is obvious that the plaintiff cannot prevail on the facts he has alleged and it would be futile to give him an opportunity to amend, Perkins v. Kan. Dep't of Corr., 165 F.3d 803-806 (10th Cir. 1999) (applying de novo review). In determining whether dismissal is proper, a court must accept the allegations of the complaint as true and must construe those allegations, and any reasonable inferences that might be drawn from them in the light most favorable to the plaintiff. Id. Because petitioner is pro se the Court must construe his pleadings liberally. Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (per curiam).
III. Discussion Failure to effect proper service against the Government
Pursuant 10 Federal Rule of Civil Procedure 4(i)(1) to properly effectuate service upon the United States, a plaintiff must "deliver a copy of the summons and of the complaint to the attorney of the United States, attorney for the district in which the action is brought or to an assistant United States attorney or clerical employee . . ." Under Fed.R.Civ.P. 4(i)(2) service upon officers sued in their official capacity is effectuated in the manner prescribed by Rule 4(i)(1) and by also sending a copy of the summons and complaint by registered or certified mail to the officer. . . ."
Defendants contend, and Plaintiff does not contest in any coherent manner, that service was not properly effectuated upon either the United States or the individual Defendants. Lack of jurisdiction
Plaintiff cites to Blacks Law Dictionary for the proposition that the individual Defendants are "relators." This absurd articulation of the law requires sparse comment beyond noting its erroneous inclusion.
Due to Plaintiffs failure to directly respond to Defendants' arguments and the Court finding that Defendants' arguments are meritorious, the Court adopts in whole Defendants' contentions. The Court, however, will briefly address Defendants' position.
A party must support its argument with legal authority. Primes v. City of Okla. City, 958 F.2d 1506, 1511 (10th Cir. 1992) (holding that a party must cite to authority for any argument raised): United States v. Hardwell, 80 F.3d 1471, 1492 (10th Cir. 1996) (Issue is waived when a party fails to make any argument or cite any authority to support his assertion.).
Plaintiff seeks injunctive relief and a referral for criminal prosecution against Defendants. As Defendants argue, such relief signals that the suit actually is against the United States, Louisiana v. McAdoo, 234 U.S. 627, 629 (1914); New Mexico v. Backer, 199 F.2d 426, 427-28 (10th Cir. 1952). As such, the individual Defendants are dismissed and the United States is substituted in their place. Wyoming v. United States, 279 F.3d 1214, 1225 (10th Cir. 2002) ("Federal courts generally deem a suit for specific relief, e.g., injunctive or declaratory relief against a named officer of the United States to be a suit against the sovereign.") (citation omitted)).
Furthermore, as Defendants argue, the Court lacks jurisdiction to hear a suit against the United States in this action. United States v. Mitchell, 445 U.S. 535, 538 (1980) ("It is elementary that the United States, as sovereign, is immune from suit save as it consents to be sued . . . and the terms of its consent to be sued in any court define that court's jurisdiction to entertain the suit.") (citation omitted). Pursuant to the Anti-Injunction Act. 26 U.S.C. § 7421. Congress has expressly barred Plaintiffs intended relief, and none of its statutory or judicially-created exceptions apply in this action. Id. Enochs v. Williams Packing Navigation Co., 370 U.S. 1-7 (1962). Finally, Plaintiff fails to demonstrate that the Government cannot prevail on the merits under any circumstances and that no adequate legal remedy exists. Id. ("Only if it is then apparent that, under the most liberal view of the law and the facts, the United States cannot establish its claim, may the suit for an injunction be maintained").
The Court notes that the Tenth Circuit recently denied Plaintiff's appeal in another similar suit be filed against the Government. Vance v. United States, No. 02-6346 2003 WL 1194218 (10th Cir. March 17, 2003). In the district court, Vance requested an order compelling the Government to return his property after the district court, in a previous ruling ( United States v. Vance, No. 97-CV-89 (W.D. Okla. Aug. 17, 1999) (" Vance I"), authorized foreclosure of liens against his property. Vance, 2003 WL 194218 at *1. The Circuit held Plaintiff's claims for declaratory and injunctive relief were barred under the Anti-Injunction Act and the Declaratory Judgment Act. Id. at *2.
Request for referral for prosecution
Plaintiff requests that the individual Defendants be referred for "preference of charges" under the authority the authority of 26 U.S.C. § 7214. This Court, however, does not have the to authority to request individuals for criminal prosecution. Moreover, as Defendants' argue, without the cooperation of the local United States Attorney, private citizens are explicitly prohibited from bringing an action or violations of the Internal Revenue Code. 18 U.S.C. § 3045.
IV. Conclusion
The Court finds Defendants motion will taken, and it is therefore granted in whole.
Wherefore,
IT IS ORDERED that Defendants' Motion to Dismiss, filed Feb. 14, 2003, is GRANTED.