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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 11 For the Northern District of California United States District Court 10 NICHOLAS CAPOUS, 12 Plaintiff, 13 14 No. C 13-00358 DMR ORDER DISMISSING COMPLAINT WITHOUT PREJUDICE v. UNITED STATES INTERNAL REVENUE SERVICE, 15 16 Defendant. ___________________________________/ 17 On February 13, 2013, the court granted pro se Plaintiff Nicholas Capous's application for 18 leave to proceed in forma pauperis (“IFP”) and dismissed Plaintiff's Complaint with leave to 19 amend.1 [Docket No. 6.] On February 28, 2013, Plaintiff filed an Amended Complaint. [Docket 20 No. 7.] In this action, Plaintiff seeks to recover from Defendant United States Internal Revenue 21 Service (“IRS”) $150,000 in taxes that he alleges the IRS wrongfully collected from him and/or his 22 23 24 25 26 27 28 1 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). 1 previous enterprises in 1988 (see Compl. ¶¶ 5b, 5c, 5e, 5h, 5i; Am. Compl. ¶ 5d), and challenges a 2 June 2011 IRS tax assessment of $79,052.72 (see Compl. ¶ 5h; Am. Compl. ¶ 5d). 3 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 6 months from the date of filing the claim. 26 U.S.C. §§ 6532, 7422; Flora v. United States, 362 U.S. 7 145, 177 (1960) (holding that full payment of assessment required prior to suit in federal court). The 8 “timely filing of a refund claim [is] a jurisdictional prerequisite to bringing suit.” Zeier v. United 9 States Internal Revenue Serv., 80 F.3d 1360, 1363 (9th Cir. 1996) (quotation marks omitted, 10 alteration in original) (citing Comm’r v. Lundy, 516 U.S. 235, 240 (1996)). In his Amended 11 Complaint, Plaintiff concedes that he has not filed a claim for a refund. (Am. Compl. ¶ 5b.) 12 Accordingly, the court does not have jurisdiction over this dispute. Further, the court concludes that 13 any amendment would be futile, given Plaintiff’s admitted failure to have satisfied the jurisdictional 14 prerequisites to filing a lawsuit. As Plaintiff may be able to cure this defect in his complaint at some 15 point in the future, his Amended Complaint is dismissed without prejudice. S DISTRICT TE C TA 18 Dated: March 21, 2013 20 I NO DONNA M. RYU M. Ryu United States e Donna Judge g Magistrate ud RT ER H 22 J 23 24 25 26 27 28 2 LI 21 A 19 ERED ORD T IS SO R NIA S IT IS SO ORDERED. UNIT ED 17 FO 16 RT U O For the Northern District of California the IRS to recover a refund must first have fully paid the assessed tax, must have filed an 5 United States District Court 4 N F D IS T IC T O R C

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