Harman v. United States of America

Filing 14

MEMORANDUM DECISION AND ORDER granting 6 Motion to Dismiss. This case shall be transferred to the District of Alaska. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (krb)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

RALPH A. HARMAN,

Case No. 1:12-cv-00220-BLW

Plaintiff,

MEMORANDUM DECISION AND
ORDER

v.
UNITED STATES OF AMERICA,
Defendant.

INTRODUCTION
The Court has before it Defendant’s Motion to Dismiss for Improper Venue (Dkt.
6). The Court has determined that oral argument will not aid the decisional process of the
Court. Accordingly, the Court will decide the motion based upon the submitted briefs.
For the reasons explained below, the Court will grant the motion, and transfer the case to
the District of Alaska.
ANALYSIS
The United States asks the Court to dismiss or transfer this case to the District of
Alaska pursuant to Rule 12(b)(3). Harman’s Complaint asserts a refund action under 28
U.S.C. § 1346(a) for recovery of federal tax penalties paid. For an individual, a civil
action against the United States under 28 U.S.C. 1346(a) “may be prosecuted only . . . in
the judicial district where the plaintiff resides.” 28 U.S.C. § 1402. According to his
Complaint, Harman resides in the District of Alaska.

MEMORANDUM DECISION AND ORDER - 1

Venue may be proper elsewhere when the plaintiff is a corporation. 28 U.S.C.
§ 1402(a)(2). Harman suggests venue is proper under Section 1402(a)(2) because his tax
liabilities were created by the business operations of the Ralph A. Harman Family
Limited Partnership. That makes no difference. Harman is the taxpayer against whom the
tax penalties were assessed. Thus, only he has standing to bring a refund action for the
recovery of those tax penalties. First American Title Ins. Co. v. United States, 520 F.3d
1051, 1053-54 (9th Cir. 2008). Accordingly, venue is only proper in the District of
Alaska
Although the United States filed a motion to dismiss, the United States indicated
in its reply brief that it is not opposed to transfer instead of dismissal. The Court agrees
that transfer is the better option. Accordingly, the Court will grant the motion and transfer
the case to the District of Alaska.
ORDER
IT IS ORDERED THAT:
1. Defendant’s Motion to Dismiss for Improper Venue (Dkt. 6) is GRANTED.
This case shall be transferred to the District of Alaska.
2. The Telephonic Scheduling Conference scheduled for November 28, 2012 is
VACATED.

MEMORANDUM DECISION AND ORDER - 2

DATED: November 15, 2012

_________________________
B. Lynn Winmill
Chief Judge
United States District Court

MEMORANDUM DECISION AND ORDER - 3