United States of America v. Malinowski et al

Filing 84

ORDER signed by Judge John A. Mendez on 10/11/2012 ORDERING that Defendant's 76 Motion for Reconsideration is DENIED. (Zignago, K.)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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United States of America,

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No.

2:11-cv-01187-JAM-JFM

Plaintiff,
v.

ORDER DENYING DEFENDANT’S MOTION
FOR RECONSIDERATION

Kennith J. Malinowski, et
al.,
Defendants.

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Presently before the Court is Defendant Kenneth J.

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Malinowski’s (“Defendant”) Motion for Reconsideration (Doc. # 76)

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of the Court’s September 20, 2012 order granting summary judgment

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in favor of Plaintiff United States of America (“Plaintiff”)

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(Doc. # 74).

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unopposed by Defendant.

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reconsideration (Doc. # 81).

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Plaintiff’s motion for summary judgment was
Plaintiff opposes the current motion for

There are four bases for reconsideration presented by

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Defendant: 1) Plaintiff failed to properly notice its lien on

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Defendant’s property, 2) Plaintiff’s counsel is not authorized to

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represent the United States and the Court improperly considered
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evidence submitted in support of Plaintiff’s motion, 3) Defendant

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was unable to oppose the motion due to pending discovery

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requests, and 4) the Court abused its power by entering judgment

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in favor of Plaintiff without a sufficient explanation of its

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reasoning.

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A motion for reconsideration of a grant of summary judgment

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can be brought pursuant to Federal Rules of Civil Procedure 59(e)

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or 60(b).

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1993).

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Hinton v. Pac. Enters., 5 F.3d 391, 395 (9th Cir.

In this case, Defendant proceeds under rule 59(e).

Rule 59(e) permits a district court to reconsider and
amend a previous order, [but] the rule offers an
extraordinary remedy, to be used sparingly in the
interests of finality and conservation of judicial
resources.
Indeed, a motion for reconsideration
should
not
be
granted,
absent
highly
unusual
circumstances, unless the district court is [1]
presented
with
newly
discovered
evidence,
[2]
committed clear error, or [3] if there is an
intervening change in the controlling law.
A Rule
59(e) motion may not be used to raise arguments or
present evidence for the first time when they could
reasonably have been raised earlier in the litigation

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Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th

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Cir. 2000) (internal quotations omitted) (emphasis in original).

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At the outset, the Court notes that Defendant merely raises

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arguments that could have been reasonably raised in opposition to

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the original motion for summary judgment, making the present Rule

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59(e) motion improper.

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disputes limit a defendant’s ability to respond to a motion for

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summary judgment, an opposition based upon Rule 56(d) allows a

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court to defer consideration of the motion until more facts are

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known.

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arguments.

For instance, when pending discovery

The same reasoning applies to Defendant’s remaining
Accordingly, Defendant’s motion may be properly
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denied solely because it raises arguments that should have been

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raised in opposition to Plaintiff’s motion for summary judgment.

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Id.

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entitled to some deference.

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94 (2007).

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other arguments to ensure that the Plaintiff was entitled to

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summary judgment.

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Defendant proceeds pro se, however, and pro se pleadings are
See Erickson v. Pardus, 551 U.S. 89,

Accordingly, the Court will address the Defendant’s

1. Proper Notice of Lien
Defendant argues that Plaintiff’s liens cannot be reduced to

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judgment because Plaintiff failed to produce a certified copy of

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a valid claim of lien.

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automatically arose pursuant to 26 U.S.C. §§ 6321 and 6322 when

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Defendant failed to pay taxes.

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persuasive.

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rise to a valid lien when a taxpayer fails to pay taxes upon the

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government’s demand.

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1239, 1243 (D. Neb. 1996).

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Forms 4340, were submitted by Plaintiff.

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States, 953 F.2d 531, 535 (9th Cir. 1992) (holding that forms

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4340 are sufficient evidence of tax assessments); see also

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McGinley, 942 F. Supp. at 1243 (holding that the government is

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not required to file a notice of lien with state authorities in

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order to enforce a federal tax lien).

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judgment was properly entered in Plaintiff’s favor based on the

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submitted evidence.

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Plaintiff responds that a valid lien

Plaintiff’s argument is

Sections 6321 and 6322, by their plain terms, give

See McGinley v. United States, 942 F. Supp.
Evidence of Defendant’s liability,
Hughes v. United

Accordingly, summary

2. Plaintiff’s Counsel’s Authority to Bring Action

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Next Defendant argues that Plaintiff’s counsel lacks

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authority under the 11th Amendment to the U.S. Constitution to
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prosecute this action on behalf of the United States.

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also argues that Plaintiff’s counsel did not submit admissible

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evidence in support of the motion for summary judgment.

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Plaintiff responds that Defendant’s arguments are not grounded in

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any authority, and are therefore frivolous and should not be

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considered.

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Defendant

Defendant’s argument concerning admissible evidence is

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incorrect.

Under Federal Rule of Civil Procedure 56, a motion

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for summary judgment can be supported with affadavits, admissible

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evidence, and declarations.

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vehicle for submitting admissible evidence.

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Tulare, 755 F. Supp. 2d 1075, 1084 (E.D. Cal. 2010) (holding that

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an attorney may certify the authenticity of documents if he has

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personal knowledge of their authenticity).

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declaration only concerns documents that were created during the

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course of litigation and he declares that he has personal

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knowledge of their authenticity.

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submitted by Plaintiff’s counsel were properly considered.

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An attorney declaration is a proper
Clark v. Cnty. of

Plaintiff’s counsel’s

As a result, the materials

Defendant’s argument that the 11th Amendment bars this suit

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is also incorrect.

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but the present action is against Kenneth and Patricia

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Malinowski, neither of whom are sovereign entities.

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Young, 209 U.S. 123, 149 (1908).

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does not bar entry of judgment in Plaintiff’s favor.

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The 11th Amendment bars suits against states,

Ex parte

Accordingly, the 11th Amendment

3. Discovery Responses

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Finally, Defendant claims that he was not able to oppose

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Plaintiff’s motion for summary judgment because was waiting for a

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“verified complaint” and production of discovery.
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The Court’s

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docket indicates that Defendant was served with and acknowledged

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receiving the complaint in this action (Doc. # 5).

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some of the discovery requests made by Defendant were actually

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Freedom of Information Act requests, and are therefore beyond the

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purview of this litigation.

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requests, Plaintiff points out that it responded to timely

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requests for admissions, but the last set were served by

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Defendant after the discovery cutoff date.

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Court finds that Defendant’s motion cannot be maintained on the

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Additionally,

With regard to the remaining

Accordingly, the

basis of deficient discovery requests.
4. Conclusion
For the reasons discussed above, Defendant has not raised

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any ground upon which his motion for reconsideration may be

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granted.

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judgment in Plaintiff’s favor is deficient because it is not a

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reasoned decision grounded in law and fact.

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however, is not required when granting an unopposed motion for

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summary judgment.

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Defendant’s last argument is mooted by the present order because

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it contains the Court’s reasoning with regard to the entry of

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summary judgment in Plaintiff’s favor.

Defendant does argue that the Court’s order granting

Fed. R. Civ. P. 52(a)(3).

Such an order,

In any event,

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III. ORDER
Defendant’s Motion for Reconsideration is DENIED.

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IT IS SO ORDERED.

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Dated: October 11, 2012

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____________________________
JOHN A. MENDEZ,
UNITED STATES DISTRICT JUDGE
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