Opinion
No. CV-S-01-0384-LRH (PAL)
May 13, 2002
ORDER
On April 4, 2001, Plaintiff filed a Motion for the Court to Declare the I.R.S. Determination Invalid (Docket #6). That motion was followed by a Motion for Default Judgment on January 23, 2002. (Docket #13). Defendant responded by filing a Motion to Dismiss or, in the alternative, for Summary Judgment on January 30, 2002. (#14 #15). Because the United States attached exhibits to its motion, the Court must consider the motion to be a motion for summary judgment and grants the motion. Fed.R.Civ.P. 12(b)(6); Anderson v. Angelone, 86 F.3d 932, 934 (9th Cir. 1996).
Plaintiff's first "Motion" was filed at the same time that Plaintiff filed his Complaint. The Court responded with an Order served and filed on June 11, 2001, instructing Plaintiff to serve his Complaint on Defendant. (Docket #2). It appears that Plaintiff did serve his Complaint by certified mail and that the Summons was received and filed by the Clerk of Court on July 9, 2001. (#3, #4 #5). There is no evidence, however, that Plaintiff ever served the "Motion for the Court to Declare the I.R.S. Determination Invalid" on Defendants. Because there is no evidence that the motion was ever served on the opposing party, this Court will not consider its merits. Fed.R.Civ.P. 5(a).
The United States appeared and filed a Motion for Extension of Time to Respond to the Complaint on August 16, 2001. (#7). The United States argued that it needed additional time to locate the relevant I.R.S. records and the Court Ordered an extension of time on August 22, 2001. (#8). On October 16, 2001, the United States filed a second Motion for Extension of Time to Respond to the Complaint. (#9). The Court granted Defendant's Motion permitting the United States to file a response to the Complaint by November 14, 2001. (#10). On November 20, 2001, the United States made a third request to file a responsive pleading which was granted on November 21, 2001, and permitted the government to file a responsive pleading by December 5, 2001. (#11).
On January 17, 2001, this case along with several hundred others, was reassigned to Judge Larry R. Hicks. (#12). On January 23, 2002, Plaintiff filed a Motion for Default Judgment pursuant to Fed.R.Civ.P. 55 (#13), that correctly noted that the government had not yet filed a responsive pleading. Before this Court could determine Plaintiff's entitlement to the relief he sought, the United States filed a responsive pleading, specifically, a Motion to Dismiss, or in the alternative, a Motion for Summary Judgment on January 30, 2002. (#14 #15).
"No judgment by default shall be entered against the United States or an officer or agency thereof unless the claimant establishes a claim or right to relief by evidence satisfactory to the Court." Fed.R.Civ.P. 55(e). See Campbell v. Eastland, 307 F.2d 478, 491 (5th Cir. 1962) ("Rule [55(e)] rests on the rationale that the taxpayers at large should not be subjected to the cost of a judgment entered as a penalty against a government official which comes as a windfall to the individual litigant.")
Because the United States attached Plaintiff's individual tax return as exhibits, the Court will consider Defendant's motion as a Motion for Summary Judgment. Fed.R.Civ.P 12(b).
On March 1, 2002, this Court issued an Order warning Plaintiff that he "must properly oppose the motion by filing opposing points and authorities, admissible evidence and a statement of facts under Local Rule 56-1, with fifteen days after defendants [sic.] served you with their motion." (Order, pages 2-3, #18). The failure to oppose a Motion for Summary Judgment constitutes consent thereto. Local Rule 7-2(d). Consequently, Defendant's Motion for Summary Judgment is granted.
For the foregoing reasons, Plaintiff's Motion for the Court to Declare the I.R.S. Determination Invalid (#6) and the Motion for Default Judgment (#13) are DENIED. Defendant's Motion for Summary Judgment (#15) is GRANTED and Defendant's Motion to Dismiss (#14). is DENIED as moot.