Opinion
Case No. CIV-02-1327-C
October 17, 2002
ORDER OF DISMISSAL
Plaintiff filed this action for injunctive relief on September 24, 2002. Although the documents filed by Plaintiff indicate he served Defendant on that date, the Court notes there are substantial questions regarding whether Defendant was properly served. Nevertheless, on October 11, 2002, Defendant filed its Response and a Motion to Dismiss. On October 15, 2002, Plaintiff filed a Response to the Motion to Dismiss. These matters are now at issue.
Plaintiff alleges Defendant obtained a judgment against him by fraud and that the U.S. Marshal will conduct a sale to satisfy that judgment. Plaintiff requests the Court quash any sale and quiet title to the property in his name. In response Defendant argues: 1) that Plaintiff's request is barred by the doctrine of res judicata; 2) the Anti-Injunction Act and/or the Declaratory Judgment Act deprive the Court of subject matter jurisdiction to hear Plaintiff's claims; or 3) that Plaintiff's present motion is not brought within the parameters of Fed.R.Civ.P. 60(b). Defendant requests that Plaintiff's motion for preliminary injunction be denied and Plaintiff's claims be dismissed.
Prior to receipt of Defendant's Response, the Court had set this matter for hearing so that evidence could be received on the propriety of issuing an order preventing the sale of Plaintiff's land. Because Defendant's Response raises substantial questions regarding Plaintiff's likelihood of success and whether Plaintiff has stated a claim for relief, the Court struck the hearing. This matter may be resolved on the pleadings before the Court.
Plaintiff's Response argues the 1999 judgment was procured by fraud and is therefore void and must be set aside. According to Plaintiff, the proof on which the underlying judgment relies was fabricated by counsel for Defendant. Plaintiff argues that Defendant's counsel defrauded the Court by this fabrication of evidence and by attempting to collect taxes past the limitations period. Finally, Plaintiff argues that there are no tax assessments, only fabricated papers showing alleged assessments.
Plaintiff's action clearly asks for declaratory relief from the United States's claim for past due taxes. As such, it violates the plain language of the Declaratory Judgment Act, 28 U.S.C. § 2201, which states:
In a case of actual controversy within its jurisdiction, except with respect to Federal taxes other than actions brought under section 7428 of the Internal Revenue Code of 1986, . . . any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought.28 U.S.C. § 2201 (a). Plaintiff's claims are also barred by the language of the Anti-Injunction Act, 26 U.S.C. § 7421, which states:
Except as provided in sections 6015(e), 6212(a) and (c), 6213(a), 6225(b), 6246(b), 6330(e)(1), 6331(i), 6672(c), 6694(c), 7426(a) and (b)(1), 7429(b), and 7436, no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person, whether or not such person is the person against whom such tax was assessed.26 U.S.C. § 7421. Faced with similar claims, the Tenth Circuit affirmed a district court reaching this conclusion.
Any controversy growing out of the allegations of the complaint could relate only to federal taxes and the liability therefor. It is not sufficient to say that the controversy relates only to procedure in the method of collection when the decree prayed for would not only affect, but would prevent, the collection of federal taxes which the collector claims are due and owing. The action is, therefore, one "with respect to Federal taxes" as contemplated by the Declaratory Judgments Statute.Taylor v. Allan, 204 F.2d 485, 486 (10th Cir. 1953).
Plaintiff's arguments are also without merit, as they fail to satisfy the requirements of Fed.R.Civ.P. 60(b). To the extent Plaintiff argues the judgment was fraudulent under 60(b)(3), his claim fails for two reasons. First, it is properly brought only in the case that gave rise to the judgment sought to be set aside. Second, the rule states: "[t]he motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment, order, or proceeding was entered or taken." Fed.R.Civ.P. 60(b). Here, Plaintiff filed this action September 24, 2002, and the final judgment was entered August 17, 1999. Clearly more than a year had passed. To the extent Plaintiff argues the underlying judgment was reached by fraud on the Court, he is not bound by the one-year limitation. "When alleging a claim of fraud on the court, the plaintiff must show by clear and convincing evidence that there was fraud on the court, and all doubts must be resolved in favor of the finality of the judgment." Weese v. Schukman, 98 F.3d 542, 552 (10th Cir. 1996). The conclusory allegations in Plaintiff's Complaint fall well short of meeting this requirement.
Finally, Plaintiff's claims are nothing more than a collateral challenge to the underlying judgment and so are barred by res judicata.
Res judicata requires the satisfaction of four elements: (1) the prior suit must have ended with a judgment on the merits; (2) the parties must be identical or in privity; (3) the suit must be based on the same cause of action; and (4) the plaintiff must have had a full and fair opportunity to litigate the claim in the prior suit.Nwosun v. General Mills Restaurants, Inc., 124 F.3d 1255, 1257 (10th Cir. 1997). As for the first element, it was noted above that judgment against Plaintiff was entered August 17, 1999. The second and third elements are satisfied, as the parties in the two actions are identical and both suits are based on the same taxes owed by Plaintiff. As for the fourth element, Plaintiff appeared and defended in the earlier case and ultimately appealed the judgment against him to the Tenth Circuit which affirmed this Court. Without question Plaintiff had a full and fair opportunity to litigate his claims in the prior suit. Consequently, Plaintiff's present claims are barred by the doctrine of res judicata.
For the reasons set forth herein, Bobby Don Vance's 28 U.S.C. § 2284 Motion for Injunctive Relief Preliminary to this Court's Ruling on a Motion to Vacate/Mandatory Judicial Notices, Federal Rules of Evidence Rule 201 is DENIED. Defendant's Motion to Dismiss is GRANTED. A separate judgment will enter. IT IS SO ORDERED this day of October, 2002.