Mincher v. United States of America

Filing 24

ORDER Affirming Magistrate Judges Order re 18 Order on Motion for Leave to File. Signed by Judge Robert N. Scola, Jr on 5/19/2017. (ail)

United States District Court
for the
Southern District of Florida
John A. Mincher, Plaintiff,
v.
United States of America,
Defendant.

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Civil Action No. 17-20390-Civ-Scola
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Order Affirming Magistrate Judge’s Order
This matter is before the Court on the Defendant’s objections to the
Magistrate Judge’s paperless order granting the Plaintiff leave to file an ex parte
supplement to his response to the Defendant’s Motion to Dismiss. (Def.’s Obj.’s,
ECF No. 19). For the reasons set forth below, the Court affirms the Magistrate
Judge’s order (ECF No. 18).
The Internal Revenue Service (“IRS”) is investigating the Plaintiff’s income
tax liabilities and has issued Formal Document Requests (“FDRs”) to the
Plaintiff. (Mot. to Quash Formal Document Request, ECF No. 1.) The Plaintiff
has moved to quash the FDRs, in part because the Plaintiff asserts that
producing the documents will violate his Fifth Amendment rights. (Id.) In the
United States’s Motion to Dismiss and Cross-Motion to Enforce, the United
States argues, among other things, that the waiver, foregone conclusion, and
collective entity doctrines prevent the Plaintiff from relying on the Fifth
Amendment (ECF No. 7).
The Plaintiff moved for leave to supplement his publicly filed response to
the United States’ Motion to Dismiss and Cross-Motion to Enforce with an ex
parte submission. (Mot. to File Supplemental Resp., ECF No. 11.) The United
States objected in part to the Plaintiff’s motion, asserting that the Court can
rule on its threshold arguments that the waiver, foregone conclusion, and
collective entity doctrines prevent the Plaintiff from relying on the Fifth
Amendment on the basis of the facts that are currently known to both parties
(ECF No. 15). The Court referred this case to Magistrate Judge Otazo-Reyes for
a ruling on all pre-trial, nondispositive matters and for a report and
recommendation on any dispositive matters (ECF No. 17). Judge Otazo-Reyes
issued a paperless order granting the Plaintiff’s motion for leave to file an ex
parte supplement (ECF No. 18). The United States filed objections to the order
(ECF No. 19).
Federal Rule of Civil Procedure 72(a) and Local Magistrate Judge Rule
4(a) require that a district judge apply a “clearly erroneous or contrary to law”

standard of review when considering objections to non-dispositive rulings. The
United States’s objections assert that in its motion to dismiss, the United
States has argued that the waiver, foregone conclusion, and collective entity
doctrines prevent the Plaintiff from relying on the Fifth Amendment. (Def.’s
Obj.’s at 2, ECF No. 19.) The United States argues that ex parte evidence is not
relevant to the Court’s resolution of the United States’s arguments concerning
these doctrines, and therefore, Judge Otazo-Reyes’s decision to permit an ex
parte submission before ruling on these arguments was clearly erroneous. (Id.
at 4-6.) In essence, it appears that the United States is concerned that the ex
parte submission will somehow lead Judge Otazo-Reyes to misapply the law
concerning the waiver, foregone conclusion, and collective entity doctrines. (Id.
5-6.) These concerns are unfounded. Moreover, the United States will have the
opportunity to file objections to Judge Otazo-Reyes’s report and
recommendations if it believes that the law has been misapplied.
The United States acknowledges that courts have discretion whether to
accept ex parte evidence (id. at 4.), and it has provided no case law holding that
a court cannot exercise its discretion to accept an ex parte submission under
these circumstances. Therefore, the United States has failed to show that
Judge Otazo-Reyes’s decision was clearly erroneous or contrary to law, and the
Court affirms the order granting the Plaintiff leave to file an ex parte
supplement (ECF No. 18).
Done and ordered, at Miami, Florida, on May 19, 2017.
________________________________
Robert N. Scola, Jr.
United States District Judge