Smith v. Rossotte, No. 02-922-HU.

• Court: United States District Courts. 9th Circuit. United States District Court (Oregon)
• Writing for the Court: Haggerty
• Citation: 250 F.Supp.2d 1266
• Parties: Paula Rae SMITH Plaintiff, v. Charles O. ROSSOTTE, Commissioner, Internal Revenue Service, Dennis L. Paiz, Chief Examination Branch, Deborah S. Decker, Director, Ogden Customer Service Center, Mr. Parezek; Susan Meredith, Automated Collection Service, Fresno, Greenpoint Financial, Does 1-999, Defendants.
• Docket Number: No. 02-922-HU.
• Decision Date: 30 January 2003

250 F.Supp.2d 1266 Paula Rae SMITH Plaintiff,
v.
Charles O. ROSSOTTE, Commissioner, Internal Revenue Service, Dennis L. Paiz, Chief Examination Branch, Deborah S. Decker, Director, Ogden Customer Service Center, Mr. Parezek; Susan Meredith, Automated Collection Service, Fresno, Greenpoint Financial, Does 1-999, Defendants. No. 02-922-HU. United States District Court, D. Oregon. January 30, 2003.

Page 1267

Paula Rae Smith, Portland, OR, Plaintiff, Pro Se.

Michael W. Mosman, United States Attorney, District of Oregon, Portland, OR, Jeremy N. Hendon, Trial Attorney, Tax Division, United States Department of Justice, Washington, DC, for Defendants Rossotte, Paiz, Decker, Parezek and Meredith.

HAGGERTY, District Judge.

This matter is before the court on defendants Rossotte, Paiz, Decker, Parezek, and Meredith's motion to dismiss (# 3). For the following reasons, defendants' motion is granted.

BACKGROUND

Plaintiff filed a petition to quash notice of levy issued by the Internal Revenue Service ("IRS") on April 27, 2002. Plaintiff challenges the procedural validity of a tax lien and seeks a release of the garnishment of her wages and a return of her property. Plaintiff alleges that defendants did not provide a ten day notice and demand, that plaintiff did not receive a copy of the Notice of Levy or a Certificate of Assessment form, and she did not receive a due process hearing. Plaintiff further alleges that her earnings are not taxable income and seems to contend that alcohol, tobacco, and firearms are the only taxable items.

Defendants Rossotte, Paiz, Decker, Parezek, and Meredith filed a motion to dismiss the complaint pursuant to Rule 12(b)(1), (b)(5), and (b)(6). Defendants contend that (1) the United States is the

Page 1268

only proper defendant in this action; (2) plaintiff did not properly serve the United States; (3) this court lacks jurisdiction with respect to wages which the IRS has already levied upon and collected; (4) this court lacks jurisdiction with respect to plaintiffs contentions regarding issues other than the procedural validity of the levy; (5) this court lacks jurisdiction over plaintiffs procedural allegations; and (6) injunctive relief is barred in this case by the Injunctive Relief Act. Plaintiff filed no response to the motion to dismiss. Defendants' motion is now before the court.

STANDARDS

A motion to dismiss brought pursuant to Federal Rule of Civil Procedure 12(b)(1) addresses the court's subject matter jurisdiction. The party asserting jurisdiction bears the burden of proving that the court has subject matter jurisdiction over his claims. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673,128 L.Ed.2d 391 (1994).

A Rule 12(b)(1) motion may attack the substance of the complaint's jurisdictional allegations even though the allegations are formally sufficient. St. Clair v. City of Chico, 880 F.2d 199, 201 (9th Cir.1989). The court may consider evidence outside the pleadings to resolve factual disputes. Id.; see also Dreier v. United States, 106 F.3d 844, 847 (9th Cir.1996) (a challenge to the court's subject matter jurisdiction under Rule 12(b)(1) may rely on affidavits or any other evidence properly before the court).

On a motion to dismiss pursuant to Rule 12(b)(6), the court must review the sufficiency of the complaint. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). The court should construe the complaint most favorably to the pleader:

In evaluating the sufficiency of the complaint, we follow, of course, the accepted rule that the complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.

Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); American Family Ass'n, Inc. v. City & County of San Francisco, 277 F.3d 1114, 1120 (9th Cir.2002). The allegations of material fact must be taken as true. Moyo v. Gomez, 40 F.3d 982, 984 (9th Cir.1994).

DISCUSSION

I. Individual Defendants

Plaintiff brings this action against a number of IRS employees. However, the complaint makes no allegations against these defendants in their individual capacities. Rather, plaintiffs allegations are directed solely against these defendants in their official capacities and plaintiff seeks relief solely from the United States. Plaintiff may only seek relief for actions of these individuals taken in their official capacities from the United States, not from the individual defendants. See Dugan v. Rank, 372 U.S. 609, 83 S.Ct. 999, 10 L.Ed.2d 15 (1963); Hutchinson v. United States, 677 F.2d 1322, 1327 (9th Cir.1982). Therefore, to the extent that plaintiff brings these claims against defendants Rossotte, Paiz, Decker, Parezek, and Meredith in their official capacities, plaintiffs claims are dismissed.

II. Improper Service

Defendants also contend that plaintiff has failed to properly serve the United States. Rule 4(i)(1) provides: (i) Serving the United States, Its Agencies, Corporations, Officers, or Employees.

(1) Service upon the United States shall be effected

Page 1269

(A) by delivering a copy of the summons and of the complaint to the United States attorney for the district in which the action is brought or to an assistant United States attorney or clerical employee designated by the United States attorney in a writing filed with the clerk of the court or by sending a copy of the summons and of the complaint by registered or certified mail addressed to the civil process clerk at the office of the United States attorney and

(B) by also sending a copy of the summons and of the complaint by registered or certified mail to the Attorney General of the United States at Washington, District of Columbia, and

(C) in any action attacking the validity of an order of an officer or agency of the United States not made a party, by also sending a copy of the summons and of the complaint by registered or certified mail to the officer or agency.

Fed.R.Civ.P. 4(i)(1)(A)—(C). Rule 4(i)(2) provides that

(2)(A) Service on an agency or corporation of the United States, or an officer or employee of the United States sued only in an official capacity, is effected by serving the United States 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, employee, agency, or corporation.

Fed.R.Civ.P. 4(i)(2)(A).

Plaintiffs certificate of service does not demonstrate that she served the United States Attorney in this district as required by Rule 4(i)(1)(A). Furthermore, plaintiffs certificate of service states that she served United States Attorney General Ashcroft with a copy of the petition to quash and the brief in support. Plaintiff fails to demonstrate that she served the United States Attorney General with a copy of the summons as required by Rule 4(i)(1)(B). Accordingly, plaintiffs complaint is dismissed for failure to properly serve the United States.

III. Section 2410

Plaintiff alleges that this court has jurisdiction over her petition pursuant to 28 U.S.C. § 2410. Defendants contend that section 2410 applies only to a portion of plaintiffs claim and that the portions of her claim to which section 2410 does apply are barred by the Anti-Injunction Act.

Section 2410 provides in pertinent part: (a) Under the conditions prescribed in this section and section 1444 of this title for the...