Eckwortzel v. Crossman

• Decision Date: 04 June 2008
• Docket Number: Civil No. CV 07-497-C-EJL.
• Citation: 561 F.Supp.2d 1144
• Parties: Jimmie R. ECKWORTZEL, Plaintiff, v. Sandra L. CROSSMAN and Cleo Travis, Defendants.
• Court: U.S. District Court — District of Idaho

561 F.Supp.2d 1144

Jimmie R. ECKWORTZEL, Plaintiff, v. Sandra L. CROSSMAN and Cleo Travis, Defendants.

Civil No. CV 07-497-C-EJL.

United States District Court, D. Idaho.

June 4, 2008.

Jimmie R. Eckwortzel, Pollock, ID, pro se.

Michael Peter Hatzimichalis, Steven Paul Johnson, U.S. Department of Justice, Washington, DC, Leslie R. Weatherhead, Witherspoon Kelley Davenport & Toole, Coeur D'Alene, ID, for Defendants.

ORDER ON REPORT AND RECOMMENDATION

EDWARD J. LODGE, District Judge.

On April 30, 2008, United States Magistrate Judge Candy W. Dale issued a Report and Recommendation, recommending that Plaintiffs motion to remand be denied, both Defendants' motions for summary judgment be granted, and that Plaintiffs complaint be dismissed with prejudice. Any party may challenge a Magistrate Judge's proposed recommendation regarding by filing written objections within ten days after being served with a copy of the Magistrate Judge's Report and Recommendation. 28 U.S.C. § 636(b)(1)(C). Thereafter, a party may respond to the objections within ten days. Fed.R.Civ.P. 72. The district court must then "make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." Id. The district court may accept, reject, or modify in whole or in part, the findings and recommendations made by the magistrate. Id.; see also Fed.R.Civ.P. 72(b). Plaintiff filed objections to the report and recommendation and the Defendants have responded. (Dkt. Nos. 36, 37).

The Plaintiffs objections are a continuation of his arguments that he is not liable to pay taxes and that jurisdiction here is not proper. The Court has reviewed the report and recommendation, the parties' motions, briefing, and the entire record in these matters. Based upon this review, the Court finds the report and recommendation has correctly decided the motions and this Court is in agreement with the reasoning of the Magistrate Judge.

ORDER

Having conducted a de novo review of the Report and Recommendation, this Court finds that Magistrate Judge Dale's Report and Recommendation is well founded in law and consistent with this Court's own view of the evidence in the record. Acting on the recommendation of Magistrate Judge Dale, and this Court being fully advised in the premises, IT IS HEREBY ORDERED that the Report and Recommendation entered on April 30, 2008, (Docket No. 34), should be, and is hereby, INCORPORATED by reference and ADOPTED in its entirety.

THEREFORE, IT IS HEREBY ORDERED as follows:

1) Plaintiffs Motion to Remand (Dkt. No. 9) is DENIED.

2) Defendant Crossman's Motion for Summary Judgment (Dkt. No. 14) is GRANTED.

3) Defendant Travis's Motion for Summary Judgment (Dkt. No. 22) is GRANTED.

4) Plaintiffs Complaint is DISMISSED WITH PREJUDICE and the case is closed.

REPORT AND RECOMMENDATION

CANDY W. DALE, United States Magistrate Judge.

REPORT

The Court has before it pro se Plaintiff Jimmie Eckwortzel's ("Eckwortzel") Motion to Remand (Docket No. 9) and Defendants' motions for summary judgment (Docket Nos. 14, 22). Eckwortzel filed this action against Defendant Cleo Travis ("Travis"), a Sterling Bank employee, and Defendant Sandy Crossman ("Crossman"), an employee with the Internal Revenue Service ("IRS"), seeking the return of $4,276.40 withdrawn from his bank account pursuant to a federal tax levy. Having carefully reviewed the record and the parties' briefs, the Court enters the following Report and Recommendation.¹

I.

Background and Facts.²

According to records of the IRS, Eckwortzel failed to file income tax returns for seven years between 1994 and 2003, and when he did file a return in 1997, failed to pay income tax due. Aff. of Crossman ¶¶ 4-5, Docket No. 19. The IRS asserts that Eckwortzel now owes over $310,000.00 in outstanding tax liability, penalties and interest. Initial notices and demands for payment were sent to Eckwortzel once each of his tax liabilities were assessed. Aff. of Crossman ¶ 7, Docket No. 19. In August 2005 and February 2006, the IRS filed Notices of Federal Tax Liens. Aff. of Crossman ¶ 8, Docket No. 19. When several final notices and demands went unheeded, on April 16, 2007, the IRS sent Eckwortzel a warning of enforcement concerning his income tax liabilities. Aff. of Crossman ¶ 10-14, Docket No. 19. Eckwortzel responded with a letter dated June 1, 2007, addressed to Crossman, denying that he had any tax liability and refusing to acknowledge the IRS letters until his questions were answered. Aff. of Crossman Ex. 8, Docket No. 19. According to Crossman, Eckwortzel has never paid any taxes due, sought an alternate payment arrangement or administrative hearing, or provided any basis for his failure to pay income taxes other than simply denying tax liability. Aff. of Crossman ¶ 16, Docket No. 19.

When the IRS learned Eckwortzel maintained a bank account at Sterling Savings Bank, it issued a Notice of Levy to the bank on October 11, 2007. In response to the Notice of Levy, the IRS received a check from Sterling Savings Bank made payable to the United States Treasury in the amount of $4,276.40 and the IRS applied that amount to Eckwortzel's outstanding tax liability. Aff. of Crossman ¶¶ 17-18, Ex. 9, Docket No. 19.

Thereafter, Eckwortzel filed suit on October 30, 2007, in the small claims division of the Second Judicial District Court of the State of Idaho against Crossman and Cleo Travis, a Sterling Savings Bank employee. Docket No. 1. Eckwortzel demanded return of the $4,276.40, claiming "lack of due process—no court order signed by judge." Notice of Removal, Ex. A, Docket No. 1. Both defendants were served with the summons and complaint by personal service. Notice of Removal, Ex. B, Docket No. 1. On November 20, 2007, the United States, on behalf of revenue officer Crossman, filed a notice of removal pursuant to 28 U.S.C. §§ 1441 and 1442(a)(1). Both defendants have filed answers asserting as a defense the failure to state a claim for relief against them. Docket No. 1, Ex. B; Docket No. 13.

Eckwortzel argues his case should continue in small claims court because he did not "consent" to be sued in Federal District Court. Defendant Crossman and Defendant Travis both contend in their motions that Eckwortzel's complaint fails to state a claim for relief against them. Travis further asserts that, pursuant to the Internal Revenue Code, she is immune from liability for complying with the IRS levy.

II. Discussion

A. Eckwortzel's Motion to Remand.

In response to the notice of removal, Eckwortzel filed a document entitled "Praecipe to Court Clerk Cameron Burke" commanding the clerk to "remand the kidnapped [sic] case ... to its proper jurisdiction, the Small Claim Department in the State of Idaho." Docket No. 9. It was therefore filed by the Clerk's office as a motion for remand. From what can be discerned, Eckwortzel contends that he did not "contract" with this Court nor consent to allow the United States to become a party to the lawsuit. Docket No. 9. In its reply, the government asserts that its Notice of Removal was proper under 28 U.S.C. § 1442 because Eckwortzel sued a federal employee acting in her official capacity.

28 U.S.C. § 1442(a)(1) allows a case commenced in state court to be removed to the federal district court of the district where the action is pending if the suit is against any officer of the United States or of any agency thereof, when that person "is sued in an official or individual capacity for any act under color of such office or on account of ... the collection of the revenue." The statute is "broad enough to cover all cases where federal officers can raise a colorable defense arising out of their duty to enforce federal law." Swett v. Schenk, 792 F.2d 1447, 1450 (9th Cir.1986). The purpose of the statute is "to ensure a federal forum in any case where a federal official is entitled to raise a defense arising out of his official duties." Swett, 792 F.2d at 1450. The right of removal is "absolute for conduct performed under color of federal office." Id.

Removal was proper in this case. Defendant Crossman stated that she is employed as a Revenue Officer for the Internal Revenue Service ("IRS"). Aff. of Crossman, ¶ 1, Docket No. 19. Eckwortzel brought the action against Crossman because of her actions on behalf of the IRS in collecting tax revenue owed and for which Eckwortzel now seeks reimbursement. Eckwortzel has not presented any evidence to contradict these facts.

A motion to remand may be brought under 28 U.S.C. § 1447(c) on the grounds of a defect in the removal process or if the district court lacks subject matter jurisdiction. Burnette v. Godshall, 828 F.Supp. 1439, 1444 (N.D.Cal.1993), aff'd, Burnette v. Lockheed Missiles & Space Co., Inc., 72 F.3d 766 (9th Cir.1995). The party invoking removal jurisdiction bears the burden of proving the federal nature of the claim in support of removal. Burnette, 828 F.Supp. at 1444 (citing Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir.1992)). Since Eckwortzel has not challenged the procedural aspects of removal by the United States, such as tardy filing or defects in form or content, the question for the Court is whether Plaintiffs claims are state law claims or are preempted by federal law.

Eckwortzel's suit is founded in federal law. He seeks return of money taken by the IRS in satisfaction of his tax liability, a claim arising under the Internal Revenue Code. He has sued a federal government employee acting in her official capacity, which is essentially a suit against the United States. Gilbert v. DaGrossa, 756 F.2d 1455, 1458 (9th Cir.1985). The Court therefore has no discretion to remand. Ryan v. State Board of Elections, 661 F.2d 1130, 1133 (7th Cir.1981) (citing Thermtron Prods., Inc. v. Hermansdorfer, 423 U.S. 336, 96 S.Ct. 584, 46 L.Ed.2d 542 (1976)). Eckwortzel's motion to remand should therefore be denied.

B. Legal Standards Governing Motions for Summary...