Holcomb v. Internal Revenue Service

Filing 10

ORDER Deeming Plaintiff's Response Stricken in Part; and ORDER of Dismissal. The motion to quash is dismissed without leave to amend. Signed by Chief Judge Larry Alan Burns on 10/10/2019. (All non-registered users served via U.S. Mail Service) (jdt)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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ROBERT ERIC HOLCOMB,
Plaintiff,

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v.

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INTERNAL REVENUE SERVICE,
Defendant.

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Case No.: 19cv1482-LAB
ORDER DEEMING PLAINTIFF’S
RESPONSE STRICKEN IN
PART; AND
ORDER OF DISMISSAL

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Background

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After Plaintiff Robert Holcomb filed his motion to quash a summons served

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on Wells Fargo Bank by the I.R.S., the Court issued several orders to show cause

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in an effort to determine whether there was more than one Plaintiff, and what he

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or they were asking for, as well as to confirm its jurisdiction. After Holcomb

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responded to the first order, it became clear he was the only Plaintiff who was

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properly before the Court. Although the initiating pleading suggested that Brother’s

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Keeper Ministry might also be a Plaintiff, the Ministry could not proceed either pro

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se or represented by a non-lawyer such as Holcomb. It also appeared likely the

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Court lacked jurisdiction.

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The Court’s next orders focused on jurisdiction. See Chapman v. Pier 1

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Imports (U.S.) Inc., 631 F.3d 939, 954 (9th Cir. 2011) (en banc) (court must raise
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19cv1482-LAB

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jurisdictional issues such as standing, even if the parties do not). Holcomb was

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cautioned that he was required to establish that the Court had jurisdiction to hear

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his claims, and that until he did so, the Court was presumed to lack it. See

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Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). He was

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also cautioned that if he failed to establish jurisdiction, the action would be

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dismissed. After his response to the first order proved inadequate, the Court on

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September 23 ordered him specifically to show that he had complied with the

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procedural requirements of 26 U.S.C. § 7609(b). (Docket no. 8.) Fully compliance

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with these requirements is jurisdictional. Ponsford v. United States, 771 F.2d 1305,

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1309 (9th Cir. 1985).

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Striking Arguments

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The Court’s September 23 order required Holcomb to file a declaration

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complying with 28 U.S.C. 1746, addressing four issues. (Docket no. 9.) The Court

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ordered him not to include any legal arguments or other material—particularly

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requests for reconsideration—and cautioned him that if he attempted to do so, the

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declaration may be rejected for filing. (Id. at 4:19–22.)

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Holcomb has now filed a document including several pages of legal

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arguments taking issue with the Court’s earlier rulings, and his declaration. Under

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Fed. R. Civ. P. 12(f)(1), the Court may sua sponte strike from a pleading “any

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redundant, immaterial, impertinent, or scandalous matter.” Holcomb’s legal

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arguments, beginning just below the caption on page 1 of his response and

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continuing through page 4, just above the subheading “Court Requested

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Declaration” are impertinent and improper for any number of reasons. They are

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legally frivolous, they violate Fed. R. Civ. P. 11(b), and they include unauthorized

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requests for reconsideration in violation of both the Court’s order and the

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Chambers standing order. And of course, he was ordered not to include them here.

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These arguments are DEEMED STRICKEN and the Court will not address them.

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19cv1482-LAB

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Jurisdiction

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The Court’s September 23 order required Holcomb’s declaration to state

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what date he first knew the I.R.S. had sent the summons to Wells Fargo, and the

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date he first received a copy of it. The order also required him to specify what steps

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he took to comply with the notice requirements of 26 U.S.C. § 7609(b)(2)(B). That

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order pointed out that a copy of his petition had to have been mailed by registered

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or certified mail to both Wells Fargo and the I.R.S. (Docket no. 8 at 4:15–17.) He

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was also ordered to attach to his declaration a copy of the receipts showing his

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compliance with these requirements. (Id. at 4:18–19.)

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It is uncertain whether, or when the I.R.S. gave Holcomb notice of the

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summons as required under 26 U.S.C. § 7609(a)(2). Bearing in mind that Holcomb

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may not have a “last known address,” the service date may be the date the

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summons was mailed to Wells Fargo, see id., which must have been some time

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before July 15, the date Wells Fargo sent Holcomb a letter about the summons. In

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that case, the motion would be untimely and the Court would lack jurisdiction for

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that reason.

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But even assuming the I.R.S. failed to follow the notification procedures set

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forth in 26 U.S.C. § 7609(a)(2), the twenty-day clock for him to file his motion to

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quash does not stop indefinitely. See Kalra v. United States, 2013 WL 1749385,

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at *3 (N.D. Il., Apr. 23, 2013) (citing Sylvestre v. United States, 978 F.2d 25, 27–

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28 (1st Cir. 1992); Cook v. United States, 104 F.3d 886, 890 (6th Cir. 1997))

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(holding that I.R.S.’s failure to follow notification procedures under 26 U.S.C. §

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7609(a)(2) can be excused where movant was not prejudiced).

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Holcomb received actual notice of the summons, he was no longer prejudiced by

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any possible defect in the I.R.S.’s notification procedures. See Kalra at *4.

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Holcomb’s reply shows that he knew on July 20, 2019. that Wells Fargo had

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received the I.R.S. summons. He therefore had at most 20 days from that date to

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both file his motion to quash and to serve it as required under 26 U.S.C. § 7609(b).

As soon as

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19cv1482-LAB

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Although the government’s failure to comply with notice requirements under

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26 U.S.C. § 7609 may be excused, the rule does not work in reverse to excuse a

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movant’s failure to comply. Because sovereign immunity is at stake, movants must

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strictly comply with the requirements of 26 U.S.C. § 7609(a)(2). Mollison v. United

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States, 568 F.3d 1073, 1075 (9th Cir. 2009). Although Holcomb was ordered to

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show that he has complied with these requirements, he failed to do so.

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Holcomb’s declaration, along with the attached receipts, shows only that a

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copy of his motion was mailed to the I.R.S. by Priority mail, not certified or

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registered mail. See Env’tl Law & Pol’y Ctr. v. U.S. Envir. Agy., 349 F. Supp. 3d

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703, 713 n.6 (N.D. Oh. 2018) (pointing out that service by priority mail was not the

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same as service by certified or registered mail); Shupe v. Gen. Servs. Admin.,

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2017 WL 6209142, at *2–3 (D. Ariz., Apr. 25, 2017) (finding that pro se plaintiff’s

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use of priority mail rather than certified or registered mail did not satisfy service

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requirement). Although priority mail may also be sent as certified mail, the two are

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not the same. See Ming Kuo Yang v. City of Wyoming, Mich., 31 F. Supp. 3d 925,

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932 n.6 (W.D. Mich., 2014). Certified mail is ordinarily documented by a green

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mailing receipt, which Holcomb has not attached.

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Furthermore, Holcomb did not mail Wells Fargo a copy at all. Instead, he

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followed Wells Fargo’s instructions in its letter to someone else, and merely faxed

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the bank a copy. Even if Wells Fargo’s request for fax notice could excuse strict

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compliance with § 7609(a)(2)—which they cannot—Wells Fargo did not purport to

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instruct Holcomb on how to file and give notice of a motion to quash. Its letter

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requested immediate notice that a motion to quash had been filed, so that it would

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know how to proceed. Wells Fargo had previously disclaimed any suggestion that

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it was giving or could give legal advice or assistance:

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19cv1482-LAB

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If you’d like to take any action related to this legal order [the summons],
we recommend you contact an advisor of your choice, such as an
attorney, for guidance as soon as possible; Wells Fargo cannot advise
you in this matter.
(Docket no. 1 at 7 (Wells Fargo letter dated July 15).)

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Holcomb’s failure to mail a copy of his motion to Wells Fargo by registered

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or certified mail means the Court lacks jurisdiction, and the motion must be

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dismissed. See Ramirez v. United States, 604 Fed. Appx. 575, 576 (9th Cir. 2015).

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Furthermore, because the 20-day window has already passed, he cannot correct

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this defect.

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Conclusion and Order
The Court lacks jurisdiction to grant the relief Holcomb seeks. The motion to
quash is DISMISSED WITHOUT LEAVE TO AMEND.

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IT IS SO ORDERED.
Dated: October 10, 2019

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Hon. Larry Alan Burns
Chief United States District Judge

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19cv1482-LAB