United States of America v. Hom
Filing
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ORDER GRANTING MOTION TO STRIKE DEFENDANTS AMENDED ANSWER AND COUNTERCLAIM AND VACATING HEARING by Hon. William Alsup granting 22 Motion to Strike.(whalc3, COURT STAFF) (Filed on 3/16/2014)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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UNITED STATES OF AMERICA,
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For the Northern District of California
United States District Court
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Plaintiff,
v.
JOHN C. HOM,
Defendant.
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No. C 13-03721 WHA
ORDER GRANTING
MOTION TO STRIKE
DEFENDANT’S AMENDED
ANSWER AND
COUNTERCLAIM AND
VACATING HEARING
In this tax-penalty enforcement action, the government is seeking to collect unpaid civil
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penalty assessments arising from defendant’s failure to report his interests in foreign banks or
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financial accounts. Defendant filed an answer on August 23, 2013 (Dkt. No. 6). Almost four
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months later, defendant filed an amended answer and asserted a counterclaim — without seeking
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leave pursuant to Rule 15(a). The counterclaim alleges the government improperly disclosed
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defendant’s tax return information to the Department of Justice in violation of nondisclosure
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laws in the internal revenue code. The government now moves to strike defendant’s amended
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answer and counterclaim. For the following reasons, the motion to strike defendant’s amended
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answer and counterclaim is GRANTED.
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Of some significance, defendant earlier sued the government in a similar action alleging
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that the IRS made unauthorized disclosures of his tax return information to the Department of the
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Treasury. That action was dismissed without leave to amend by the undersigned judge in an
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order dated September 30, 2013, due to futility. John C. Hom, et al. v. United States, No.
13-02243, 2013 U.S. Lexis 142818, at *6 (N.D. Cal.).
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ANALYSIS
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RULE 15.
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Rule 15(a) of the Federal Rules of Civil Procedure provides that a party may amend its
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pleading once as a matter of course within 21 days after serving it, with the opposing party’s
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written consent, or with the court’s leave. A party waives a defense of insufficient service by
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failing to “include it in a responsive pleading or in an amendment allowed by Rule 15(a)(1) as a
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matter of course.” FRCP 12(h)(2).
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The government contends that defendant’s assertion of his counterclaim almost four
was not properly served with the lawsuit because he “was not living at his residence during the
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For the Northern District of California
months after filing the answer constituted undue delay. In response, defendant contends that he
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United States District Court
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time of the alleged service” and therefore “the clock never started on the original answer” (Opp.
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4). Defendant further contends that there is no violation with his bringing a counterclaim
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because of the two-year statute of limitations for Section 6103 violations (ibid.).
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Defendant’s arguments are without merit. First, defendant was personally served so his
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residence at the time of service is irrelevant (Dkt. No. 9). Second, defendant waived the
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affirmative defense of improper service when he failed to either include it in his original answer
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or move to raise the defense before filing his answer. Third, irrespective of the statute of
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limitations, defendant filed his amended answer and counterclaim almost four months after filing
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his answer. This is well beyond the 21 days allowed as a matter of course under Rule 15(a)(1).
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Defendant received neither written consent from the government or leave, therefore, defendant’s
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amended answer was not properly filed.
ISSUE PRECLUSION.
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2.
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Even if, however, defendant had properly sought leave to file an amended answer, such
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leave would be denied because the counterclaim is barred by issue preclusion.
Defendant’s counterclaim alleges that the government, in violation of 26 U.S.C. 6103,
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obtained tax return information from the IRS and made unauthorized disclosures to the
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Department of Justice in connection with a Foreign Bank Account Report (“FBAR”)
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investigation. Defendant is barred from relitigating that issue because it was already decided in
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the prior case. The September 30 order dismissing the unauthorized disclosure claim specifically
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stated, “Section 5314 is therefore a related statute under Section 6103 and the disclosures at
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issue in this action were lawful.” Hom, 2013 U.S. Lexis 142818, at *6. The fact that in the prior
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action defendant addressed the Department of the Treasury and not the Department of Justice has
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no importance. The named parties in both actions are John C. Hom and the United States, and
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the asserted counterclaim — unauthorized disclosure of tax return information under Section
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6103 — is the same claim made by defendant in the prior action. Defendant’s counterclaim is
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thus barred and this order need not reach whether the counterclaim was properly pled.
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counterclaim is GRANTED. The hearing is VACATED.
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For the Northern District of California
United States District Court
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Accordingly, the government’s motion to strike defendant’s amended answer and
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IT IS SO ORDERED.
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Dated: March 16, 2014
WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE
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