Klodt v. USA

Filing 7

ORDER DISMISSING CASE under Rule 12(b)(6) for the failure to state a claim for relief, by Judge Richard P. Matsch on 7/9/2012. (rpmcd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Senior District Judge Richard P. Matsch
Civil Action No. 12-cv-00988-RPM
FRED KLODT,
Plaintiff,
v.
UNITED STATES OF AMERICA,
Defendant.
_____________________________________________________________________
ORDER OF DISMISSAL
_____________________________________________________________________
A default judgment was entered against Frederick J. Klodt as a counterclaim
defendant in Civil Action No. 04-cv-00437-WYD-CBS on May 16, 2007, holding him
liable for employer taxes owed by Bailco, Inc. On May 31, 2011, Klodt filed a motion for
relief from judgment under Fed.R.Civ.P. 60(b). That motion was denied by order
entered on June 28, 2011.
Fred Klodt filed this civil action on April 13, 2012, asserting a claim for refund
under 26 U.S.C. § 7422, having paid $21,094.51 of the taxes owed. He seeks now to
litigate his liability for the taxes that were the bases for the counterclaim and default
judgment. The government filed its motion to dismiss on June 22, 2012, asserting the
preclusive effect of the default judgment. The plaintiff responded on July 4, 2012,
arguing that his claim is not the same claim as the counterclaim. That argument is
rejected. The issue of liability is the same and he is precluded from re-opening the
issue. It is

ORDERED that this civil action is dismissed under Rule 12(b)(6) for the failure to
state a claim for relief.
DATED: July 9th, 2012
BY THE COURT:
s/Richard P. Matsch
__________________________
Richard P. Matsch, Senior Judge

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