Breaux v. USA

Filing 10

REPORT AND RECOMMENDATIONS re 6 MOTION to Dismiss Case filed by USA. IT IS RECOMMENDED that defendants Motion to Dismiss (rec. doc. 6) be GRANTED and this matter be DISMISSED. Objections to R&R due by 2/1/2010. Signed by Magistrate Judge Patrick J Hanna on 1/13/10. (crt,Smith, C)

U N IT E D STATES DISTRICT COURT W E S T E R N DISTRICT OF LOUISIANA L A F A Y E T T E -O P E L O U S A S DIVISION K E I T H L. BREAUX V ER SU S U N IT E D STATES OF AMERICA C I V I L ACTION NO. 07-0910 J U D G E MELANCON M A G I S T R A T E JUDGE HANNA

R E P O R T AND RECOMMENDATION B e fo re the court is defendant's Motion to Dismiss (rec. doc. 6). The motion is unopposed. I n its motion, defendant asks the court to dismiss plaintiff's Petition to Quash S u m m o n s . Plaintiff's petition to quash summons was filed on May 30, 2007, and served o n the United States Attorney's Office on November 30, 2007. The summons sought to be quashed was issued by the Internal Revenue Service on T e c h e Federal Savings Bank on May 8, 2007, for various information and records p e rta in in g to plaintiff Keith L. Breaux. On May 15, 2007, Teche responded to the s u m m o n s , stating it had none of the records requested, prior to the petition to quash being fi le d . In its motion to dismiss, defendant asks that the petition to quash be dismissed for fa ilu re to properly effect service upon United States through the Attorney General of the U n ite d States, and because the matter is moot. Defendants explain plaintiff only served th e United States Attorney, and the summons was issued and responded to prior to the p e titio n to quash having been filed. As noted above, defendant's motion to dismiss is 1

unopposed. A fte r review of the litigation and defendant's motion, the undersigned finds d e fe n d a n t's motion to dismiss is supported in law and in fact. Therefore, I T IS RECOMMENDED that defendant's Motion to Dismiss (rec. doc. 6) be G R A N T E D and this matter be DISMISSED. U n d e r the provisions of 28 U.S.C. Section 636(b)(1)(C) and Rule 72(b), parties a g g rie v e d by this recommendation have fourteen (14) days from service of this report and re c o m m e n d a tio n to file specific, written objections with the Clerk of Court. A party may re sp o n d to another party's objections within fourteen (14) days after being served with a c o p y of any objections or responses to the district judge at the time of filing. F a ilu r e to file written objections to the proposed factual findings and/or the p r o p o se d legal conclusions reflected in this Report and Recommendation within fo u r te e n (14) days following the date of its service, or within the time frame a u t h o r ize d by Fed.R.Civ.P. 6(b), shall bar an aggrieved party from attacking either th e factual findings or the legal conclusions accepted by the District Court, except

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u p o n grounds of plain error. See Douglass v. United Services Automobile A s s o c ia tio n , 79 F.3d 1415 (5 th Cir. 1996).

T h u s done and signed this 13 th day of January, 2010 at Lafayette, Louisiana.

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