Flanagan et al v. Department of the Treasury et al

Filing 7

ORDER Affirming and Adopting Magistrate Judge's Recommendation. ORDERED that the Recommendation of United States Magistrate Judge, is AFFIRMED and ADOPTED. ORDERED that the United States' Motion to Dismiss for Mootness 4 is GRANTED, and this matter is DISMISSED by Chief Judge Wiley Y. Daniel on 02/08/12.(jjhsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Wiley Y. Daniel
Civil Action No. 11-cv-01930-WYD-KLM
BRIAN AND JILL FLANAGAN,
Plaintiffs,
v.
DEPARTMENT OF THE TREASURY and
FIRSTBANK VAIL,
Defendants.

ORDER AFFIRMING AND ADOPTING
MAGISTRATE JUDGE'S RECOMMENDATION

THIS MATTER is before the Court in connection with Plaintiffs’ Petition to Quash
IRS Administrative Summons. The Petition seeks to quash a Summons issued against
Petitioners on July 5, 2011. The Summons was issued by the Internal Revenue Service
(“IRS”) to Defendant FirstBank of Vail, a record keeper of Petitioners. However, the
Summons was withdrawn by Revenue Officer Ginger Wray on August 4, 2011, when she
issued a faxed memorandum to Defendant FirstBank informing it to disregard the
Summons as she was no longer in need of the information requested in it. Thus, no
records were ever received by the IRS from FirstBank as a result of the Summons.
On October 21, 2011, the United States filed a Motion to Dismiss for Mootness
pursuant to Fed. R. Civ. P. 12(b)(1). Plaintiffs did not respond to the motion. Defendants’
motion was referred to Magistrate Judge Mix for a recommendation by Order of Reference
of August 1, 2011 and Memorandum of October 21, 2011.

On January 5, 2012, a Recommendation of United States Magistrate Judge was
issued, which is incorporated herein by reference. See 28 U.S.C. § 636(b)(1); Fed. R. Civ.
P. 72(b). Magistrate Judge Mix recommends therein that Defendants’ Motion to Dismiss
be granted and that Plaintiff’s Petition to Quash IRS Administrative Summons be
dismissed. She finds that the case is moot and the Court does not have jurisdiction to hear
this matter due to the withdrawal by the IRS of the Summons at issue. (Recommendation
at 3) (citing Kearns v. United States, 580 F. Supp. 8, 10 (S.D. Ohio 1983) (stating that there
was no case or controversy to adjudicate with respect to a summons that had been
withdrawn by the respondent)).
Magistrate Judge Mix advised the parties that specific written objections were due
within fourteen (14) days after service of the Recommendation. (Recommendation at 3-4.)
Despite this advisement, no objections were filed to the Magistrate Judge's
Recommendation. No objections having been filed, I am vested with discretion to review
the Recommendation “under any standard [I] deem[] appropriate.” Summers v. Utah, 927
F.2d 1165, 1167 (10th Cir. 1991); see also Thomas v. Arn, 474 U.S. 140, 150 (1985)
(stating that "[i]t does not appear that Congress intended to require district court review of
a magistrate's factual or legal conclusions, under a de novo or any other standard, when
neither party objects to those findings"). Nonetheless, though not required to do so, I
review the Recommendation to "satisfy [my]self that there is no clear error on the face of
the record."1 See Fed. R. Civ. P. 72(b) Advisory Committee Notes.

1

Note, this standard of review is something less than a "clearly erroneous or contrary to law" standard
of review, Fed. R. Civ. P. 72(a), which in turn is less than a de novo review, Fed. R. Civ. P. 72(b).

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Having reviewed the Recommendation, I am satisfied that there is no clear error on
the face of the record. I agree with Magistrate Judge Mix’s analysis and find that the
Recommendation should be affirmed. Accordingly, it is
ORDERED that the Recommendation of United States Magistrate Judge dated
January 5, 2012, is AFFIRMED and ADOPTED. In accordance therewith, it is
ORDERED that the United States’ Motion to Dismiss for Mootness filed October 21,
2012 (ECF No. 4) is GRANTED, and this matter is DISMISSED.
Dated: February 8, 2012
BY THE COURT:

s/ Wiley Y. Daniel
Wiley Y. Daniel
Chief United States District Judge

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