Depew v. U.S.
| Decision Date | 03 February 1999 |
| Docket Number | No. Civ.A. 94-B-2490.,Civ.A. 94-B-2490. |
| Citation | 50 F.Supp.2d 1009 |
| Parties | Jay L. DEPEW, Plaintiff, v. UNITED STATES of America, Defendant and Counterclaim Plaintiff, v. Jay L. Depew, Counterclaim Defendant. |
| Court | U.S. District Court — District of Colorado |
Jay L. Depew, Lakewood, CO, pro se.
Joel J. Roessner, Trial Atty., Tax Division, U.S. Dept. of Justice, Washington, DC, for U.S.
Defendant, United States of America ("the United States"), pursuant to Rule 56, moves for summary judgment on its counterclaim for injunctive relief. The United States also requests that I take judicial notice of five orders issued by the United States Tax Court and the United States Court of Appeals for the Tenth Circuit, Plaintiff, Jay L. Depew, moves for judgment on the pleadings pursuant to Rule 12(c). The motions are adequately briefed and oral argument will not aid materially their resolution. Jurisdiction exists under 28 U.S.C. §§ 1331 & 1651(a). For the reasons set forth below, I grant the United States' motion for summary judgment. I also take judicial notice of the five orders and deny Mr. Depew's motion for judgment on the pleadings.
Mr. Depew commenced this action on November 1, 1994 by filing a "Petition to Challenge IRS Assumed In Personam And Subject Matter Jurisdiction Over Complainant." On December 30, 1994, the United States filed a motion to dismiss Mr. Depew's petition.
On March 6, 1995, the United States filed a counterclaim for injunctive relief, seeking to enjoin Mr. Depew from commencing frivolous and vexatious litigation against the United States, its agencies, and its officers, regarding the validity of federal taxation laws and Mr. Depew's liability for federal taxes. Mr. Depew filed a motion to quash the government's counterclaim on March 28, 1995.
On August 8, 1995, I entered a special order of reference to Magistrate Judge Bruce D. Pringle, directing him to make recommendations on pending motions. On October 25, 1995, Magistrate Judge Pringle recommended granting the government's motion to dismiss and denying Mr. Depew's motion to quash. On November 8, 1995, I entered an order adopting Magistrate Judge Pringle's recommendations, dismissing Mr. Depew's petition, denying Mr. Depew's motion to quash the government's counterclaim, and directing Mr. Depew to answer the government's counterclaim. Mr. Depew filed a "Response to Respondents' Counterclaim" on November 21, 1995, which I deem an answer. Mr. Depew appealed from my November 8, 1995 order to the Tenth Circuit Court of Appeals. The Court of Appeals dismissed Mr. Depew's appeal for lack of prosecution on January 29, 1996. Accordingly, only the government's counterclaim requires adjudication.
When a party moves to dismiss pursuant to Rule 12(c), courts review the judgment on the pleadings under the standard of review applicable to a Rule 12(b)(6) motion to dismiss. McHenry v. Utah Valley Hosp., 927 F.2d 1125, 1126 (10th Cir.1991). Thus, dismissal of the United States' counterclaim is appropriate only if it appears that the United States can prove no set of facts in support of its counterclaim that would entitle it to relief. Coosewoon v. Meridian Oil Co., 25 F.3d 920, 924 (10th Cir.1994). I must accept all the well-pleaded allegations of the counterclaim as true and construe them in the light most favorable to the United States. Id. The dismissal of a complaint or counterclaim is a "harsh remedy which must be cautiously studied, not only to effectuate the spirit of the liberal rules of pleading but also to protect the interests of justice." Summum v. Callaghan, 130 F.3d 906, 913 (10th Cir.1997) (quotations omitted). In analyzing Mr. Depew's motion for judgment on the pleadings, I exclude from consideration all material presented outside the pleadings. See Biester v. Midwest Health Services, Inc., 77 F.3d 1264, 1265 (10th Cir. 1996).
Mr. Depew presents several arguments in support of his motion. I address each argument separately.
Mr. Depew first argues that the government's counterclaim fails to state a claim upon which relief can be granted. I disagree. The government alleges that Mr. Depew commenced "frivolous and vexatious litigation against the United States, its agencies and/or officers." (Counterclaim ¶ 1.) The government claims that it is without a legal remedy to stop Mr. Depew from filing frivolous and vexatious litigation and, therefore, seeks equitable relief enjoining Mr. Depew from commencing additional litigation without first seeking leave of the court.
Contrary to Mr. Depew's contentions, such injunctive relief is an appropriate equitable remedy for the deterrence of repetitive, frivolous, and vexatious litigation. See Christensen v. Ward, 916 F.2d 1485, 1485 (10th Cir.1990); Tripati v. Beaman, 878 F.2d 351, 353 (10th Cir.1989); Van Sickle v. Holloway, 791 F.2d 1431, 1437 (10th Cir.1986) (); Merrigan v. Affiliated Bankshares of Colorado, Inc., 775 F.Supp. 1408, 1413 (D.Colo.1991) (). "[T]he right of access to the courts is neither absolute nor unconditional, and there is no constitutional right of access to the courts to prosecute an action that is frivolous or malicious." Tripati, 878 F.2d at 353 (citation omitted). Although litigiousness alone will not support an injunction restricting filing activities, injunctions are proper where the litigant's abusive and lengthy history is properly set forth. Id. (collecting cases).
The government's counterclaim alleges that Mr. Depew has brought five frivolous and vexatious lawsuits based on the same or similar arguments, each resulting in dismissal. Specifically, the government avers that Mr. Depew commenced two frivolous lawsuits in the United States Tax Court, two frivolous appeals in the Tenth Circuit Court of Appeals, and this action. As noted above, I dismissed Mr. Depew's petition in this case on November 8, 1995. I conclude, therefore, that the government's counterclaim states a claim upon which relief can be granted.
Mr. Depew next argues that the government's counterclaim was not authorized by properly delegated authority. The Internal Revenue Code states, in relevant part: "No civil action for the collection or recovery of taxes, or of any fine, penalty, or forfeiture, shall be commenced unless the Secretary authorizes or sanctions the proceedings and the Attorney General or his delegate directs that the action be commenced." 26 U.S.C. § 7401. In its counterclaim, the government states: "This counterclaim is commenced pursuant to the Internal Revenue Code Section 7401 (26 U.S.C.) under the direction of the Attorney General of the United States, and with the authorization and sanction of the District Counsel of the Internal Revenue Service, a delegate of the Secretary of the Treasury of the United States." (Counterclaim ¶ 2.) Accordingly, I reject Mr. Depew's second argument.
Next, Mr. Depew contends that counsel for the government is not admitted to practice law in the State of Colorado. Although true, Mr. Depew's contention is of no consequence. As attorneys for the Department of Justice, the government's current and former counsel are authorized to appear before this court pursuant to 28 U.S.C. §§ 515-516. To the extent Mr. Depew contends that the government's power is confined to the District of Columbia, the Tenth Circuit Court of Appeals rejected that argument in Lonsdale v. United States, 919 F.2d 1440, 1448 (10th Cir.1990) (). Thus, I reject Mr. Depew's third argument. Mr. Depew's remaining contentions pertain to the merits of the counterclaim, or are barred by the doctrines of law of the case, res judicata, or collateral estoppel. I deny, therefore, Mr. Depew's motion for judgment on the pleadings.
II. THE GOVERNMENT'S MOTION FOR SUMMARY JUDGMENT
Rule 56 provides that summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, admissions, or affidavits show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The non-moving party has the burden of showing that issues of undetermined material fact exist. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A party seeking summary judgment bears the initial responsibility of informing the court of the basis for its motion, and identifying those portions of the pleadings, depositions, interrogatories, and admissions on file together with affidavits, if any, that it believes demonstrate the absence of genuine issues for trial. Celotex, 477 U.S. at 323, 106 S.Ct. 2548; Mares v. ConAgra Poultry Co., Inc., 971 F.2d 492, 494 (10th Cir.1992). Once a properly supported summary judgment motion is made, the opposing party may not rest on the allegations contained in the complaint, but must respond with specific facts showing the existence of a genuine factual issue to be tried. Otteson v. United States, 622 F.2d 516, 519 (10th Cir. 1980); Fed.R.Civ.P. 56(e). These specific facts may be shown "by any of the kinds of evidentiary materials listed in Rule 56(c), except the pleadings themselves." Celotex, 477 U.S. at 324, 106 S.Ct. 2548.
Summary judgment is also appropriate when the court concludes that no reasonable juror could find for the non-moving party based on the evidence present in the motion and response. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, ...
To continue reading
Request your trial