NELSON v. UNITED STATES OF AMERICA

Filing 41

ORDER - - - 1. Plaintiff's 36 Motion for leave to file a second amended complaint is Denied. - - 2. The magistrate judge's 33 Report and Recommendation is Adopted and Incorporated by reference in this order. - - 3. Defendant USA's motion to dismiss Plaintiff's refund claims for tax years 2002 and 2006 for lack of subject matter jurisdiction 17 is Granted; in the alternative, Defendant's motion for summary judgment on these claims is Granted. - - 4. Defendant's 17 motion for summary judgment on Plaintiff's refund claims for tax years 2003, 2004, and 2007 is GRANTED. - - 5. Plaintiff's 26 motion for summary judgment is DENIED. - - 6. Judgment shall be entered in favor of Defendant. - - - Signed by District Judge M CASEY RODGERS on January 8, 2010. (cbj)

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA PENSACOLA DIVISION

DAVID NELSON, Plaintiff, v. UNITED STATES OF AMERICA, Defendant. _________________________________/ ORDER This cause comes on for consideration upon the magistrate judge's Report and Recommendation dated December 7, 2009. (Doc. 33). The parties have been furnished a copy of the Report and Recommendation and have been afforded an opportunity to file objections pursuant to Title 28, United States Code, Section 636(b)(1). Neither party has filed any objections, but in response to the Report and Recommendation Plaintiff David Nelson ("Plaintiff") filed a motion for leave to file a second amended complaint (doc. 36), along with a proposed second amended complaint (doc. 37). Defendant United States of America ("Defendant") has filed a response in opposition to Plaintiff's motion. (Doc. 39). For the reasons stated in the response filed by the Defendant, the court denies Plaintiff's motion for leave to file an amended complaint. Additionally, having considered the magistrate judge's Report and Recommendation, the court has determined that the Report and Recommendation should be adopted. Accordingly, it is ORDERED as follows: 1. Plaintiff David Nelson's motion for leave to file a second amended complaint Case No. 3:08cv508/MCR/EMT

(doc. 36) is DENIED. 2. The magistrate judge's Report and Recommendation (doc. 33) is ADOPTED

and INCORPORATED by reference in this order.

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3.

Defendant United States of America's motion to dismiss Plaintiff's refund

claims for tax years 2002 and 2006 for lack of subject matter jurisdiction (doc. 17) is GRANTED; in the alternative, Defendant's motion for summary judgment on these claims is GRANTED. 4. Defendant's motion for summary judgment (doc. 17) on Plaintiff's refund

claims for tax years 2003, 2004, and 2007 is GRANTED. 5. 6. Plaintiff's motion for summary judgment (doc. 26) is DENIED. Judgment shall be entered in favor of Defendant.

DONE AND ORDERED this 8th day of January 2010.

s/

M. Casey Rodgers

M. CASEY RODGERS UNITED STATES DISTRICT JUDGE

Case No. 3:08cv508/MCR/EMT