Baxter et al v. United States of America, et al

Filing 50

ORDER by Judge Yvonne Gonzalez Rogers denying 47 Motion for Leave to File a Motion for Reconsideration of Interlocutory Order. (fs, COURT STAFF) (Filed on 10/12/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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JOSEPH GARY BAXTER AND PATRICIA
MARY BAXTER,

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Plaintiffs,
v.

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UNITED STATES OF AMERICA, et al.,

United States District Court
Northern District of California

ORDER DENYING MOTION FOR LEAVE TO
FILE A MOTION FOR RECONSIDERATION OF
INTERLOCUTORY ORDER
Re: Dkt. No. 47

Defendants.

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Case No. 15-cv-02138-YGR

The Baxters brought this action seeking to challenge defendants’ use of the National

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Research Program (“NRP”) to audit plaintiffs as an invalid and unconstitutional exercise of the

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IRS’s authority. The Court granted the government’s motion to dismiss the First Amended

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Complaint for lack of subject matter jurisdiction under Rule 12(b)(1). (Dkt. No. 43.)

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The Baxters now move for leave to file a motion for reconsideration of interlocutory order.
(Dkt. No. 47 (“Mtn.”).) The Court having carefully considered the papers submitted, the
pleadings in this action, and for the reasons set forth below, DENIES the Baxters’ motion.
I.

RELEVANT BACKGROUND

The facts at issue in this case are well-known to the parties and were summarized
previously by the Court in its prior orders. (See Dkt. Nos. 26. and 43.) The Baxters now move for

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reconsideration of the order granting motion to dismiss on two grounds, namely: (1) a manifest
failure by the Court to consider material facts or dispositive legal arguments that were presented to
the Court before such interlocutory order, and (2) the emergence of new material facts or a change
of law occurring after the time of such order.

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II.

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“Reconsideration is appropriate if the district court (1) is presented with newly discovered

STANDARD OF REVIEW

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evidence, (2) committed clear error or the initial decision was manifestly unjust, or (3) if there is

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an intervening change in controlling law.” School Dist. No. 1J v. ACandS, Inc., 5 F.3d 1255, 1263

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(9th Cir.1993). Local Rule 7–9(b) requires that a party seeking leave to file a motion for

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reconsideration show reasonable diligence in making the motion and one of the following:
(1) That at the time of the motion for leave, a material difference in fact or law
exists from that which was presented to the Court before entry of the
interlocutory order for which reconsideration is sought. The party also must
show that in the exercise of reasonable diligence the party applying for
reconsideration did not know such fact or law at the time of the interlocutory
order; or

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(2) The emergence of new material facts or a change of law occurring after the time
of such order; or
(3) A manifest failure by the Court to consider material facts or dispositive legal
arguments which were presented to the Court before such interlocutory order.

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Pursuant to Local Rule 7–9(c), “[n]o motion for leave to file a motion for reconsideration may

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repeat any oral or written argument made by the applying party in support of or in opposition to

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United States District Court
Northern District of California

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the interlocutory order which the party now seeks to have reconsidered.” Reconsideration of a

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prior ruling is an “extraordinary remedy, to be used sparingly.” Kona Enter., Inc. v. Estate of
Bishop, 229 F.3d 877, 890 (9th Cir. 2000).
III.

DISCUSSION

The Baxters contend that the Court erred in failing to consider material facts and
dispositive legal arguments. However, their arguments are unpersuasive. The motion is based

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entirely on arguments that either were or could have been presented to the Court in support of their
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opposition to the government’s motion to dismiss. The Baxters have failed to satisfy their burden.
Furthermore, the Baxters contend that new facts have arisen warranting leave to file a
motion for reconsideration. Specifically, plaintiffs received a notice of Income Tax Examination
Changes from the IRS assessing over $1 million in taxes, penalties for fraud, and interest. In

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addition, they assert that the IRS advised Mr. Baxter that the 2012 and 2013 audits were deemed

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research audits after the Baxters asserted their constitutional rights. The receipt of this

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information cannot alter the Court’s decision that it lacks subject matter jurisdiction.

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Reconsideration is therefore inappropriate on these grounds as well.1

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//

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As the Court previously noted, the Baxters’ remedies include petitioning the Tax Court
for a redetermination of the deficiency and suing for a refund in the Court of Federal Claims.
(Dkt. No. 43 at 8:7-12.)
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IV.

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Based upon the foregoing, the Baxters’ motion is DENIED. This Order terminates Docket

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CONCLUSION

Number 47.
IT IS SO ORDERED.
Dated: October 12, 2016
______________________________________
YVONNE GONZALEZ ROGERS
UNITED STATES DISTRICT COURT JUDGE

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United States District Court
Northern District of California

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