Capous v. United States Internal Revenue Service

Filing 8

ORDER DISMISSING CASE. Signed by Magistrate Judge Donna M. Ryu on 03/21/2013. (dmrlc1, COURT STAFF) (Filed on 3/21/2013)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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For the Northern District of California

United States District Court

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NICHOLAS CAPOUS,

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Plaintiff,

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No. C 13-00358 DMR
ORDER DISMISSING COMPLAINT
WITHOUT PREJUDICE

v.
UNITED STATES INTERNAL REVENUE
SERVICE,

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Defendant.
___________________________________/

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On February 13, 2013, the court granted pro se Plaintiff Nicholas Capous's application for
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leave to proceed in forma pauperis (“IFP”) and dismissed Plaintiff's Complaint with leave to
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amend.1 [Docket No. 6.] On February 28, 2013, Plaintiff filed an Amended Complaint. [Docket

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No. 7.] In this action, Plaintiff seeks to recover from Defendant United States Internal Revenue
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Service (“IRS”) $150,000 in taxes that he alleges the IRS wrongfully collected from him and/or his
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A magistrate judge generally must obtain the consent of the parties to enter dispositive rulings
and judgments in a civil case. See 28 U.S.C. § 636(c)(1). However, in cases such as this one, where
the plaintiff has consented but not served the defendants, “all parties have consented pursuant to 28
U.S.C. § 636(c)(1),” and a magistrate judge therefore “‘may conduct any or all proceedings in a jury or
nonjury civil matter and order the entry of judgment in the case.’” Gaddy v. McDonald, No. CV 1108271 SS, 2011 WL 5515505, at *1 n.2 (C.D. Cal. Nov. 9, 2011) (quoting § 636(c)(1)) (citing United
States v. Real Property, 135 F.3d 1312, 1317 (9th Cir. 1995)); Third World Media, LLC v. Doe, No. C
10-04470 LB, 2011 WL 4344160, at *3 (N.D. Cal. Sept. 15, 2011)); see also Neals v. Norwood, 59 F.3d
530, 532 (5th Cir.1995) (holding that magistrate judge had jurisdiction to dismiss action as frivolous
without consent of defendants because defendants had not yet been served and therefore were not
parties).

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previous enterprises in 1988 (see Compl. ¶¶ 5b, 5c, 5e, 5h, 5i; Am. Compl. ¶ 5d), and challenges a

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June 2011 IRS tax assessment of $79,052.72 (see Compl. ¶ 5h; Am. Compl. ¶ 5d).

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In the court's February 13, 2013 Order, the court noted that a plaintiff bringing suit against

administrative claim for a refund, and the IRS must have denied the claim or failed to act within six

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months from the date of filing the claim. 26 U.S.C. §§ 6532, 7422; Flora v. United States, 362 U.S.

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145, 177 (1960) (holding that full payment of assessment required prior to suit in federal court). The

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“timely filing of a refund claim [is] a jurisdictional prerequisite to bringing suit.” Zeier v. United

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States Internal Revenue Serv., 80 F.3d 1360, 1363 (9th Cir. 1996) (quotation marks omitted,

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alteration in original) (citing Comm’r v. Lundy, 516 U.S. 235, 240 (1996)). In his Amended

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Complaint, Plaintiff concedes that he has not filed a claim for a refund. (Am. Compl. ¶ 5b.)

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Accordingly, the court does not have jurisdiction over this dispute. Further, the court concludes that

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any amendment would be futile, given Plaintiff’s admitted failure to have satisfied the jurisdictional

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prerequisites to filing a lawsuit. As Plaintiff may be able to cure this defect in his complaint at some

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point in the future, his Amended Complaint is dismissed without prejudice.

S DISTRICT
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C
TA

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Dated: March 21, 2013

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I

NO

DONNA M. RYU
M. Ryu
United States e Donna Judge
g Magistrate
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IT IS SO ORDERED.

UNIT
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FO

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For the Northern District of California

the IRS to recover a refund must first have fully paid the assessed tax, must have filed an

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United States District Court

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