United States of America v. Herrington et al

Filing 27

OPINION and ORDER Denying 11 MOTION to Dismiss. Signed by District Judge Sean F. Cox. (KWin)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
United States of America,
Plaintiff,
v.

Case No. 15-11579

Karl E. Harrington, et al.,

Sean F. Cox
United States District Court Judge

Defendant.
___________________________/
OPINION & ORDER
DENYING DEFENDANT’S MOTION TO DISMISS
The instant action relates to a dispute over unpaid federal tax liabilities. This matter is
before the Court on Defendant Jeanne M. Herrington’s (“Defendant”) Motion to Dismiss
Pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(2). Defendant is currently
incarcerated in a federal prison in West Virginia and has proceeded pro se in this matter. The
motion has been fully briefed by the parties. For the reasons set forth below, the Court shall
DENY Defendant’s motion.
BACKGROUND
A.

Factual Background
Plaintiff commenced this action on May 1, 2015, seeking to collect unpaid federal tax

liabilities from Defendants Jeanne and Karl Herrington. (Docket Entry. No. 1, Compl.).
Defendant allegedly owes Plaintiff an excess of $64,000 as a result of her failure to pay federal
tax liabilities related to the income tax years of 1997, 1998, 1999, 2000, 2001, 2002, 2003, 2004,
2006, and 2007. (Compl. ¶ 28). Plaintiff would additionally like to enforce its federal tax liens
against real property located in Parma, Michigan. (Compl. ¶¶ 33-34, 37-41). Plaintiff contends

that Defendant has a purported interest in the Parma property. Id. Plaintiff’s complaint alleges
that the Court has jurisdiction under 28 U.S.C. §§ 1331, 1340 and 1345, as well as 26 U.S.C. §§
7402 and 7403. (Compl. ¶ 1). Although Defendant is currently incarcerated in West Virginia,
Plaintiff alleges that Defendant’s domicile is Michigan. (Compl. ¶¶ 5, 6).
B.

Procedural Background
Plaintiff filed this action against Defendants in Federal Court based upon federal question

jurisdiction. Plaintiff’s complaint lists the following parties as defendants: 1) Karl E. Herrington;
2) Jeanne M. Herrington; 3) Michael Robert Herrington; 4) Jackson County Treasurer, in the
State of Michigan; 5) State of Michigan; and 6) Portfolio Recovery Associates. (Compl. ¶¶ 310). A Clerk’s entry of default as to Michael Robert Herrington, Jackson County Treasurer, and
Portfolio Recovery Associates was filed on September 1, 2015. (Docket Entry No. 21, 22, 23).
Plaintiff’s complaint is comprised of two counts. Count I contains allegations against
both Karl and Jeanne Herrington. Plaintiff alleges that, despite notice and demand, Karl and
Jeanne Herrington have failed, neglected, or refused to fully pay liabilities individually assessed
against them. (Compl. ¶¶ 13, 28). As such, Karl and Jeanne Herrington each remain indebted to
Plaintiff. Id. Specifically, Plaintiff alleges that Karl Herrington’s costs, fees, accruals,
abatements, payments, and credits amount to $141,542.56 and Defendant’s liabilities amount to
$64,388.97. Id. Count II contains allegations against both Karl and Jeanne Herrington.1 In it,
Plaintiff alleges that Karl and Jeanne Herrington’s failure, neglect, or refusal to pay the taxes
assessed against them individually gave rise to liens in favor of Plaintiff pursuant to 26 U.S.C. §§
6321 and 6322, upon all property and rights to property of Karl and Jeanne Herrington, in an

1

Plaintiff’s complaint has its second count labeled “Count III,” but because there is no
Count II preceding it, the Court shall refer to Plaintiff’s “Count III” as Count II.

amount equal to their unpaid assessed liabilities. (Compl. ¶ 34). Pursuant to 26 U.S.C. § 7403,
Plaintiff seeks to enforce its liens against the property of Karl and Jeanne Herrington. (Compl. ¶
41).
Plaintiff’s Complaint seeks the following relief:
A.

Judgment in its favor against Defendant Karl E. Herrington for his income tax
liabilities and civil penalties in the amount of $141,542.56, plus statutory
additions and interest that continue to accrue from and after March 2, 2105;

B.

Judgment in its favor against Defendant Jeanne M. Herrington for her income tax
liabilities and civil penalties in the amount of $64,388.97, plus statutory additions
and interest that continue to accrue from and after March 2, 2105;

C.

Judgment in its favor that it has valid and subsisting federal tax liens on all
property and rights to property of Defendants Karl E. Herrington and Jeanne M.
Herrington, including their interest in the Property;

D.

Judgment in its favor enforcing the federal tax liens against the Property, and
ordering the property to be sold, according to law, free and clear of all rights,
titles, claims, and interest of the parties to this case, including any rights of
redemption, with the net proceeds of the sale, after the payment of the costs of
sale and any real estate taxes due and owning as permitted by 26 U.S.C. §
6323(b)(6), to be distributed among the parties in accordance with their lawful
priorities;

E.

Judgment that, if Defendant Michael Robert Herrington fails to appear and prove
a right, title, claim, lien, or interest in the Property, said defendant has no right,
title, claim, lien, or interest in the Property;

F.

Judgment that, if the defendant State of Michigan fails to appear and prove a right,
title, claim, lien, or interest in the Property, said defendant has no right, title,
claim, lien, or interest in the Property;

G.

Judgment that, if the defendant Portfolio Recovery Associates fails to appear and
prove a right, title, claim, lien, or interest in the Property, said defendant has no
right, title, claim, lien, or interest in the Property; and

H.

Any other and further relief that the Court deems just and proper, including
Plaintiff’s costs

(Compl. at pp. 12-13).

In lieu of filing an Answer, Defendant Jeanne M. Herrington has filed a Motion to
Dismiss Pursuant to Federal Rules of Civil Procedure 12(b)(1) and Rule 12(b)(2). (Docket Entry
No. 11, Def.’s Motion). Defendant argues that this Court lacks subject matter jurisdiction over
the matter at issue as well as personal jurisdiction over Defendant herself. Plaintiff opposes
Defendant’s motion.
STANDARDS OF REVIEW
A.

Subject-Matter Jurisdiction
In a motion to dismiss for lack of subject-matter jurisdiction under Federal Rule of Civil

Procedure 12(b)(1), the party invoking federal jurisdiction bears the burden of proving it.
Dismas Charities, Inc. v. U.S. Dep’t of Justice, 401 F.3d 666, 671 (6th Cir. 2005). Subjectmatter jurisdiction may be challenged facially or factually. Ohio Nat’l Life Ins. Co. v. U.S. 922
F.2d 320, 325 (6th Cir. 1990). A facial attack on subject-matter jurisdiction questions the
sufficiency of the pleadings. Id. When evaluating a facial attack, the Court looks to whether the
plaintiff has alleged a basis for subject matter jurisdiction and takes all allegations plead in the
complaint as true. Cartwright v. Garner, 751 F.3d 752, 759 (6th Cir. 2014). However, under a
factual attack, the Court can actually weigh evidence to confirm the existence of the factual
predicates for subject-matter jurisdiction. Gentek Bldg. Prod., Inc. v. Sherwin-Williams Co., 491
F.3d 320, 330 (6th Cir. 2007). “[N]o presumptive truthfulness applies to the complaint’s
allegations, and [the court] must weigh conflicting evidence.” Id.
B.

Personal Jurisdiction
In a motion to dismiss for want of personal jurisdiction under Federal Rule of Civil

Procedure 12(b)(2), the plaintiff bears the burden of proving the court’s jurisdiction over the
defendant. Neogen Corp. v. Neo Gen Screening, Inc., 282 F.3d 883, 887 (6th Cir. 2002). “[I]n

the face of a properly supported motion for dismissal, the plaintiff may not stand on his pleadings
but must, by affidavit or otherwise, set forth specific facts showing that the court has
jurisdiction.” Theunissen v. Matthews, 935 F.2d 1454, 1458 (6th Cir. 1991). If the Court finds
no need for an evidentiary hearing, "the burden on the plaintiff is relatively slight" and the Court
must "consider the pleadings and affidavits in the light most favorable to the plaintiff." Am.
Greetings Corp. v. Cohn, 839 F.2d 1164, 1169 (6th Cir. 1988) (citing Welsh v. Gibbs, 631 F.2d
436, 438-39 (6th Cir. 1980)). Where no evidentiary hearing is held, the plaintiff need only make
a prima facie showing of jurisdiction to avoid dismissal. Neogen, 282 F.3d at 887.
ANALYSIS
Defendant has filed a single motion to dismiss pursuant to Rules 12(b)(1) and 12(b)(2).
None of the asserted bases for dismissal pursuant to the above Rules have merit. Defendant
advances additional miscellaneous arguments - all of which are under-developed and unrelated to
the motion.2 Since Defendant’s arguments have no bearing on her Motion to Dismiss pursuant to
Rules 12(b)(1) and 12(b)(2), and because Defendant has failed to substantiate these conclusory
claims, the Court shall discuss only the issues pertaining to subject-matter and personal
jurisdiction.

2

In addition to arguing that the Court lacks personal and subject-matter jurisdiction,
Defendant appears to make a claim under what has been called the “redemption theory.”
Defendant’s argument here is without merit, unsupported, and has absolutely no bearing on this
Court’s jurisdiction, which is the basis for Defendant’s motion. Defendant also asserts, in a
conclusory manner, that Plaintiff has failed to comply with F.R.C.P. 4(e) and 17(a). These
arguments are also without merit.

A.

Subject-Matter Jurisdiction Exists Over Plaintiff’s Claims
Defendant appears to be arguing that the Court lacks subject-matter jurisdiction over

Plaintiff’s claims because “no other than a court of Admiralty can enforce maritime liens.”
(Def.’s Motion ¶ 4).
Before addressing whether or not subject-matter jurisdiction exists over Plaintiff’s claims,
the Court notes that neither admiralty nor maritime law is implicated here. “[A]dmiralty
jurisdiction exists only if the complained of incident occurred on navigable waters or is
substantially related to traditional maritime activity.” Herrington v. Agents for Int’l Monetary
Fund, No. 5-74424-DT, 2005 WL 3334827, at *1. Plaintiff’s complaint does not contain
allegations relating to maritime activity nor does it contain allegations of incidents occurring on
navigable waters. Rather, it seeks the collection of unpaid federal tax liabilities and the
enforcement of federal tax liens on Defendant’s real property. For these reasons, Defendant’s
argument is without merit. Defendant’s argument also fails for another reason: it mistakenly
presumes that this Court lacks the power to hear and decide cases of admiralty and maritime
jurisdiction. However, 28 U.S.C. § 1333(1) confers upon the district courts original jurisdiction
over any civil case of admiralty or maritime jurisdiction. Thus, even if the liens at issue were
maritime liens, this on its own would not strip the Court of its power to hear this case.
The Court has subject-matter jurisdiction over Plaintiff’s claims on various grounds.
Because this suit was commenced by the United States, the Court has subject-matter jurisdiction
pursuant to 28 U.S.C. § 1345 (conferring upon the district courts original jurisdiction over all
civil actions, suits or proceedings commenced by the United States...”). The Court also has
subject-matter jurisdiction under 28 U.S.C. § 1345, since the matter at issue is a civil action
arising under an Act of Congress providing for the internal revenue. Moreover, the Court has

subject-matter jurisdiction over Plaintiff’s claims because “district courts of the United States at
the instance of the United States shall have such jurisdiction... to render such judgments and
decrees as may be necessary or appropriate for the enforcement of the internal revenue laws.” 26
U.S.C. § 7402(a). And finally, the legal right of Plaintiff to commence this type of action is
established by 26 U.S.C. § 7403 (“[i]n any case where there has been a refusal or neglect to pay
any tax... a civil action [may] be filed in a district court of the United States to enforce the lien of
the United States under this title with respect to such tax or liability or to subject any property...
to the payment of such tax or liability.”).
For the reasons cited above, the Court finds that it has subject-matter jurisdiction over
this action. Accordingly, the Court shall deny Defendant’s Motion to Dismiss pursuant to Rule
12(b)(1).
B.

Personal Jurisdiction Exists Over Defendant Jeanne M. Herrington
Neither party has requested to conduct limited discovery, or for the Court to hold an

evidentiary hearing, on the issue of whether the Court has personal jurisdiction over Defendant.
Therefore, the burden on Plaintiff is slight, and Plaintiff must only make a prima facie showing
that Defendant is subject to personal jurisdiction in Michigan to avoid dismissal.
Plaintiff has pleaded federal claims against Defendant.
Where... a federal court's subject matter jurisdiction over a case stems from the
existence of a federal question, the personal jurisdiction analysis depends on
whether the federal statute in question contains a national service of process
provision. The existence of a national service of process provision “confers
personal jurisdiction in any federal district court over a defendant with minimum
contacts to the United States.”
The Supreme Court has held that when there is no provision authorizing
nationwide service, federal courts must follow Rule 4(k) of the Federal Rules of
Civil Procedure, which, inter alia, limits a court's exercise of personal jurisdiction
to persons who can be reached by the forum state's long-arm statute . . . .

Alisoglu v. Central States Thermo King of Oklahoma, 2012 WL 1666426 at *2-4 (E.D. Mich.
May 11, 2012) (Rosen, J.).
Here, none of the federal statutes in question contain a nationwide service of process
provision. In federal question cases as this, where no such provision exists, the Court is required
to apply a test similar to that used in diversity cases and “personal jurisdiction over a defendant
exists ‘if the defendant is amenable to service of process under the [forum] state’s long-arm
statute and if the exercise of personal jurisdiction would not deny the defendant[] due process.’”
Alisoglu, 2012 WL 1666426 at *4 (quoting Bird v. Parsons, 289 F.3d 865, 871 (6th Cir. 2002)).
Michigan's long-arm statute permits the exercise of both“general” and “limited” jurisdiction over
individuals. See M.C.L. § 600.701, § 600.705.
For the reasons set forth below, the Court finds that it has general personal jurisdiction
over Defendant. Accordingly, the Court shall deny Defendant’s Motion to Dismiss pursuant to
Rule 12(b)(2).
1.

General Personal Jurisdiction

Under Michigan law, a court has general personal jurisdiction over an individual if that
individual is domiciled in the state at the time process is served. See M.C.L. §600.701(2);
Milliken v. Meyer, 311 U.S. 457, 462 (1940) (“Domicile in the state is alone sufficient to bring an
absent defendant within the reach of the state’s jurisdiction for purposes of a personal
judgment.”).
Plaintiff has alleged that Defendant is domiciled in Michigan. Defendant has identified
the property in Parma, Michigan as her home address on several of her previous tax returns. (Ex.
1 to Pl.’s Motion). In 2005, this Court found that Defendant was a citizen of Michigan for

purposes of diversity jurisdiction.3 See Herrington, 2005 WL 3334827 at *1. Since then,
Defendant has been compulsorily relocated to the state of West Virginia, where she remains
incarcerated. For Defendant to establish that she has abandoned her Michigan domicile and has
since acquired domicile within another state, Defendant must be physically present in the state
and must have the intention to make her home there indefinitely or the absence of an intention to
make her home elsewhere. Stifel v. Hopkins, 477 F.2d 1116, 1120 (6th Cir. 1973).
Where, as here, the defendant is a prisoner that has been forced to relocate to another
state for purposes of incarceration, the presumption is that a prisoner retains pre-incarceration
domicile. To rebut this presumption, “more than unsubstantiated declarations” are required.
Stifel, 477 F.2d at 1126. Here, Defendant has not offered any evidence to suggest that she has
abandoned her Michigan residency. Notably, Defendant herself has not even asserted that she no
longer maintains Michigan citizenship. Thus, Plaintiff has established that the Court has general
personal jurisdiction over Defendant.
CONCLUSION
For the foregoing reasons, the Court shall DENY Defendant’s Motion to Dismiss
Pursuant to Rules 12(b)(1) and 12(b)(2).

IT IS SO ORDERED.
S/Sean F. Cox
Sean F. Cox, United States District Judge
Dated: December 29, 2015

3

Defendant has previously filed several suits in this Court and others.

I hereby certify that a copy of the foregoing document was served upon counsel of record
on December 29, 2015, by electronic mail and ordinary mail to:

Karl E Herrington
Registration No. 45853039
P.O. Box 1085
Brooks, WI 53952
Jeanne M Herrington # 43680060
ALDERSON FEDERAL PRISON CAMP
Inmate Mail/Parcels
GLEN RAY RD. BOX A
ALDERSON, WV 24910

S/Kelly Winslow for Jennifer McCoy
Case Manager Generalist