Smith et al v. USA

Filing 18

ORDER re: 12 Motion for a Preliminary Injunction and/or Other Equitable Relief, and Request for an Evidentiary Hearing and 13 Motion for a Temporary Restraining Order. The parties shall submit briefing on the Motions [# 12 ,# 13 ] in accordance with D.C.COLO.LCivR 7.1C. By Magistrate Judge Kristen L. Mix on 7/26/2013. (klyon, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-01156-MSK-KLM
DAVID L. SMITH, and
M. JULIA HOOK,
Plaintiffs,
v.
United States of America,
Defendant.
_____________________________________________________________________
ORDER
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Plaintiffs’ Motion for a Preliminary Injunction
and/or Other Equitable Relief, and Request for an Evidentiary Hearing [Docket No. 12;
Filed July 19, 2013] (the “Motion for Injunction”) and on Plaintiffs’ Motion for a Temporary
Restraining Order [Docket No. 13; Filed July 19, 2013] (the “Motion for TRO”) (collectively,
the “Motions“). Pursuant to 28 U.S.C. § 636(b)(1)(A) and D.C.COLO.LCivR 72.1C., the
Motions have been referred to this Court [#16, #17].
Plaintiffs, who proceed in this matter pro se,1 seek “the recovery of internal-revenue
taxes erroneously or illegally assessed or collected, and penalties collected without

1

The Court is mindful that it must construe the filings of pro se litigants liberally. See
Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.
1991). However, the Court should not be a pro se litigant’s advocate, nor should the Court “supply
additional factual allegations to round out [a pro se litigant’s] complaint or construct a legal theory
on [her] behalf.” Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (citing Hall, 935
F.2d at 1110). In addition, pro se litigants must follow the same procedural rules that govern other
litigants. Nielson v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994).

-1-

authority, and sums that are excessive or were collected in a wrongful manner under
internal-revenue laws . . . and to quiet title to real and personal property.” Compl. [#1] at
1-2. They seek as relief: (1) “[a] credit and/or refund of almost $1,000,000 ($964,500 by
[Plaintiffs’] calculation) for payment/overpayment of taxes, penalties and interest for tax
years 1992-1996 and 2001-1006;” (2) “[a]batement of penalties and interest for tax years
1992-1996 and 2001-2006;” (3) “[t]he actual, direct economic damages sustained by
[Plaintiffs’] which, but for the failure or refusal of the United States to release the federal tax
liens, would not have been sustained, plus the costs of the action;” (4) “[t]he release of all
federal tax liens;” (5) “[t]he return of all levied/seized property;” (6) “[t]he release of the
continuing levy on [Plaintiff David L.] Smith’s Social Security payments in effect since
2007;” (7) “[a]n order quieting title to all real and personal property owned by [Plaintiffs];”
(8) “[i]nterest, costs and reasonable attorneys’ fees and expenses as provided by law;” and
(9) “[s]uch other and further legal and equitable relief as may be just under the
circumstances.” Id. at 15-16.
Fed. R. Civ. P. 65(a) and (b) govern preliminary injunctions and temporary
restraining orders. “Where the opposing party has notice, the procedure and standards for
issuance of a temporary restraining order mirror those for a preliminary injunction.” Emmis
Commc’ns Corp. v. Media Strategies, Inc., No. 00-WY-2507CB, 2001 WL 111229, at *2 (D.
Colo. Jan. 23, 2001) (citing 11A Charles Alan Wright, et al., Federal Practice and
Procedure § 2951 (2d ed. 1995)). Here, Defendant has entered an appearance and filed
a Motion to Dismiss [#9] in response to the Complaint [#1], and therefore has notice of the
Motion for TRO [#13]. Preliminary review of the Motion for TRO [#13] does not reveal any
issue of such urgency that the Court should act before Defendant is given an opportunity
-2-

to respond. Thus, the Court will analyze both the Motion for TRO [#13] and the Motion for
Injunction [#12] under the standards for issuance of a preliminary injunction and,
consequently, the Court will permit full written briefing on both of the Motions. Accordingly,
IT IS HEREBY ORDERED that the parties shall submit briefing on the Motions [#12,
#13] in accordance with D.C.COLO.LCivR 7.1C.

Dated: July 26, 2013

-3-