Davis v. Bank of America et al

Filing 63

MEMORANDUM AND ORDER denying 42 Motion for Review; dismissing 44 Motion for for Review of Court Order to Dismiss Case. Signed by District Judge Carlos Murguia on 5/31/17. Mailed to pro se party Ronald E. Davis by regular mail. (kao)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
RONALD E. DAVIS,
Plaintiff,
v.

Case No. 16-2506-CM

BANK OF AMERICA, et al.,
Defendants.

MEMORANDUM & ORDER
This matter comes before the court on pro se plaintiff Ronald E. Davis’s Motion for Review of
Order (Doc. 42).

Plaintiff seeks review of this court’s order setting aside default and granting

defendant Franchise Tax Board’s motion to dismiss. (Doc. 41.) The court will interpret plaintiff’s
motion as one to alter or amend judgment under Rule 59(e) of the Federal Rules of Civil Procedure.
Because plaintiff has not provided any grounds for reconsideration of the court’s order, his motion is
denied.
A motion for reconsideration—which is not recognized by the Federal Rules of Civil
Procedure—may be construed as a motion to alter or amend the judgment under Rule 59(e) if filed
within 28 days after the entry of judgment. See Price v. Philpot, 420 F.3d 1158, 1167 n.9 (10th Cir.
2005). Relief under Rule 59(e) is available only if a party can establish (1) there is an intervening
change in controlling law, (2) there is new evidence that was previously unavailable, or (3) there is a
need to correct clear error or prevent manifest injustice. See Hayes Family Trust v. State Farm Fire &
Cas. Co., 845 F.3d 997, 1004 (10th Cir. 2017). A motion to alter or amend judgment is appropriate
where the “court has misapprehended the facts, a party’s position, or the controlling law.” Servants of

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Paraclete v. Does, 204 F. 3d 1005, 1012 (10th Cir. 2000). It should not be used to “revisit issues
already addressed or advance arguments that could have been raised in prior briefing.” Id.
Plaintiff’s motion largely consists of arguments raised in prior pleadings, so he has not
established he is entitled to Rule 59(e) relief. He has not shown there is any new law, new evidence, or
that the court has made a clear error. He argues that defendant is not entitled to sovereign immunity
and there is no good cause for setting aside the clerk’s entry of default, all arguments raised in his
responses to defendant’s motion for relief from judgment and motion to dismiss.
Because plaintiff is proceeding pro se, the court will liberally interpret his motion and presume
he seeks relief based on an error of law. He argues there was no good cause to set aside the clerk’s
entry of default because defendant’s listed affirmative defenses were meritless. Although he has
already argued these claims in a prior pleading, the court will briefly address them below.
Based on the accusations in the amended complaint and various other pleadings, the court notes
that plaintiff has claimed that defendants fraudulently garnished funds from his Bank of America
account under the false allegation he owed taxes in California. He maintains that his civil rights have
been deprived and that he is a victim of intentional torts and negligence. He believes there is no
sovereign immunity when a state is in violation of the constitution and that sovereign immunity is
waived under 42 U.S.C. 2000d-7 and Fitzpatrick v. Bitzer, 427 U.S. 445 (1976).
Plaintiff, however, has misinterpreted both 42 U.S.C. 2000d-7 and the Supreme Court’s ruling
in Fitzpatrick. 42 U.S.C. 2000d-7 waives state sovereign immunity in cases involving violations of
certain federal anti-discrimination laws. Plaintiff has not brought a claim under any of these statutes.
Further, in Fitzpatrick, the Supreme Court held that Congress has the power to provide for private suits
against states that may otherwise be unconstitutional under the Eleventh Amendment. 427 U.S. at 456.

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Again, plaintiff has not specified which federal laws make his claim is actionable. None of the various
statutes plaintiff lists in his amended complaint provide a private cause of action.
As for plaintiff’s tort claims, the court again finds no error in holding that the principle of
comity bars his suit as currently pled. While the court recognizes plaintiff does not believe this to be a
tax case, the court again notes that any disputes with a tax assessment, including whether the tax
should have been assessed in the first place, should first be resolved using California tax dispute
procedures.

Plaintiff continues to argue he is the victim of fraud and negligence.

But neither

California nor Kansas has waived immunity for public entities for injuries that may have occurred as a
result of tax collection. See Cal. Gov't Code § 860.2 (“Neither a public entity nor a public employee is
liable for an injury caused by: (a) Instituting any judicial or administrative proceeding or action for or
incidental to the assessment or collection of a tax. (b) An act or omission in the interpretation or
application of any law relating to a tax.”); Kan. Stat. Ann. § 75-6104(f) (“A governmental entity or an
employee acting within the scope of the employee’s employment shall not be liable for damages
resulting from: (f) the assessment or collection of taxes or special assessments.”).
Additionally, the court interprets plaintiff’s Motion for Clarity of Plaintiffs Motion for Review
of Court Order to Dismiss Case 16-2506 Answer to Defendant California Franchise Tax Board (Doc.
44) as a reply to Franchise Tax Board’s response to his original motion for reconsideration. No
separate action on this filing is necessary.
IT IS THEREFORE ORDERED that plaintiff Ronald E. Davis’s Motion for Review of Order
(Doc. 42) is denied.
IT IS FURTHER ORDERED that plaintiff Ronald E. Davis’s Motion for Clarity of Plaintiffs
Motion for Review of Court Order to Dismiss Case 16-2506 Answer to Defendant California Franchise
Tax Board (Doc. 44) is dismissed.

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Dated May 31, 2017, at Kansas City, Kansas.

s/ Carlos Murguia
CARLOS MURGUIA
United States District Judge

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