Gerstenberger et al v. Internal Revenue Service (IRS)

Filing 43

ORDER. The Court's March 18, 2019 order 42 is amended as follows: Plaintiffs' Request for Reconsideration and Reinstatement of Case Citing New Evidence and Legal Representation 41 , which the Court construes as an objection to the Recomm endation of the United States Magistrate Judge 38 , is OVERRULED. The Recommendation of United States Magistrate Judge 38 is ACCEPTED in part and REJECTED in part as reflected in this order and the order 42 entered on March 18, 2019. Plaintiffs ' Motion for Leave to File Amended Complaint 24 is DENIED. This case is dismissed without prejudice. Plaintiffs Motion Requesting Partial Summary Judgment for Immediate Removal of Unsupported and Undocumented Lien on Plaintiffs Primary Residen ce 31 is DENIED as moot. Within 14 days of the entry of this order, defendant may have its costs by filing a Bill of Costs with the Clerk of the Court. This case is closed. By Chief Judge Philip A. Brimmer on 3/21/19. (pabsec) Modified on 3/22/2019 to correct file date. (sphil, ).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Philip A. Brimmer
Civil Action No. 17-cv-02184-PAB-SKC
PAUL J. GERSTENBERGER and
CELERINA B. GERSTENBERGER,
Plaintiffs,
v.
INTERNAL REVENUE SERVICE (IRS),
Defendant.
_____________________________________________________________________
ORDER
_____________________________________________________________________
This matter comes before the Court sua sponte on review of the order, Docket
No. 42, entered on March 18, 2019, wherein the Court dismissed this action with
prejudice. See Docket No. 42 at 6.
The Court finds that it erroneously dismissed this case with prejudice upon its
finding that granting plaintiffs leave to amend their complaint would be futile. In an
earlier order, the Court accepted the magistrate judge’s recommendation and
dismissed plaintiffs’ claims without prejudice for lack of subject matter jurisdiction. See
Docket No. 26 at 2; Docket No. 23 at 14. Futility of amendment does not convert a
dismissal for lack of subject matter jurisdiction into a dismissal with prejudice. See
Brereton v. Bountiful City Corp., 434 F.3d 1213, 1219 (10th Cir. 2006) (holding that
district court erred by applying “the futility concept to convert a dismissal that should
have been without prejudice into one with prejudice”). As the Tenth Circuit has
explained, “denial of leave to amend and dismissal with prejudice are two separate

concepts.” Id. Dismissal with prejudice is only appropriate “where a complaint fails to
state a claim under Rule 12(b)(6) and granting leave to amend would be futile.” Id.
(emphasis added).
Wherefore, it is
ORDERED that the Court’s March 18, 2019 order, Docket No. 42, is amended as
follows:
1. Plaintiffs’ Request for Reconsideration and Reinstatement of Case Citing
New Evidence and Legal Representation [Docket No. 41], which the Court construes as
an objection to the Recommendation of the United States Magistrate Judge [Docket No.
38], is OVERRULED.
2. The Recommendation of United States Magistrate Judge [Docket No. 38] is
ACCEPTED in part and REJECTED in part as reflected in this order and the order,
Docket No. 42, entered on March 18, 2019.
3. Plaintiffs’ Motion for Leave to File Amended Complaint [Docket No. 24] is
DENIED.
4. This case is dismissed without prejudice.
5. Plaintiffs Motion Requesting Partial Summary Judgment for Immediate
Removal of Unsupported and Undocumented Lien on Plaintiffs Primary Residence
[Docket No. 31] is DENIED as moot.
6. Within 14 days of the entry of this order, defendant may have its costs by
filing a Bill of Costs with the Clerk of the Court.
7. This case is closed.

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DATED March 21, 2019.
BY THE COURT:

s/Philip A. Brimmer
PHILIP A. BRIMMER
Chief United States District Judge

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