United States of America v. Ohlin et al

Filing 55

FINDINGS AND RECOMMENDATIONS re 51 Ohlins' PRO SE MOTION to Dismiss Plaintiffs Motion for Summary Judgment, filed by Beverly J. Ohlin, Ronald E. Ohlin. IT IS RECOMMENDED that Ohlins' Motion to Dismiss be DENIED. Objections to F&R due by 3/1/2010. Signed by Magistrate Carolyn S Ostby on 2/10/2010. (Hard-copy mailed to Ronald and Beverly Ohlin.) (POC, )

IN THE UNITED STATES DISTRICT COURT F O R THE DISTRICT OF MONTANA B IL L I N G S DIVISION U N I T E D STATES OF AMERICA, Plaintiff, vs. R O N A L D and BEVERLY OHLIN; S T A T E OF MONTANA, DEPT. O F REVENUE; and PORTFOLIO R E C O V E R Y ASSOCIATES, LLC, Defendants. P la in t iff United States of America initiated this action on F e b r u a r y 12, 2009, to foreclose federal tax liens and judgment liens on c e r ta in real property in Yellowstone County, Montana. Cmplt. (Court D o c . 1) at 2. The Court has jurisdiction under 26 U.S.C. § 7402(a) and 2 8 U.S.C. §§ 1340 and 1345. O n January 6, 2010, Chief Judge Cebull ordered that the United S t a te s ' Motion for Summary Judgment be granted (Court Doc. 49) and t h e Clerk of Court entered judgment accordingly (Court Doc. 50). O n January 11, 2010, Ronald and Beverly Ohlin, acting pro se, file d a document titled "Notice of Motion and Motion To: Dismiss F I N D I N G S AND R E C O M M E N D A T I O N S OF U . S . MAGISTRATE JUDGE C V -0 9 -1 3 -B L G -R F C -C S O

P la in t iffs Motion For Summary Judgment." Court Doc. 51. O n January 22, 2010, the United States filed its response to the O h lin s ' motion to dismiss Plaintiff's motion for summary judgment. Court Doc. 52. O n February 9, 2010, the Ohlins filed a document titled " D e fe n d a n t s ' Refusal of Order of the Court Dated 6 January 2010 for F r a u d & Notice of Payment of Alleged Debt." Court Doc. 53.1 The C o u r t has considered this document and the Ohlins' accompanying a ffid a v it s in rendering a recommendation with respect to the Ohlins' m o t io n to dismiss the US' summary judgment motion. F o r reasons explained below, the Court recommends that the O h lin s ' motion to dismiss the United States' summary judgment motion b e denied. I . BACKGROUND T h e background of this action has been thoroughly set forth in p r io r orders. See Order Denying Motion for Leave to File Amended

This document is unsigned and undated. It is accompanied by the s ig n e d and notarized Affidavit of Ronald Ohlin and the signed and n o t a riz e d Affidavit of Beverly Ohlin.
-2-

1

A n s w e r (Court Doc. 44); Findings and Recommendations (Court Doc. 4 5 ) . The Court will repeat the background here only as necessary to e x p la in the Court's recommendation. I I . DISCUSSION A . The Objections Come Too Late T h e Ohlins' motion should be denied because their objections to t h e Motion for Summary Judgment come too late. They were given a m p le opportunity both to find counsel to represent them and to r e s p o n d substantively to the United States' Motion for Summary J u d g m e n t. They failed to do so within the time allowed by the g o v e r n in g rules or within the extensions of time the Court afforded t h e m . See Court Doc. 38, 41. Also, they chose not to file any objections t o the Court's recommendation that the Motion for Summary Judgment b e granted. As noted, Chief Judge Cebull granted the summary ju d g m e n t motion and the Clerk of Court has entered judgment a c co r d in g ly . Any substantive objections come too late, unless they are p e rm it t e d by Fed. R. Civ. P. 60, upon which the Ohlins rely. B . Rule 60 Does Not Apply T h e Ohlins cite Fed. R. Civ. P. 60(b)(6) and refer to "the inherent
-3-

p o w e r of this court to do justice" in support of their motion to dismiss. In light of the citation to Rule 60(b)(6) and the reference to the court's in h e r e n t power to do justice, the Court assumes that the Ohlins wish to s e e k relief from the judgment that has been entered. R u le 60(b)(6) provides: "On motion and just terms, the court may r e lie v e a party or its legal representative from a final judgment, order, o r proceeding for the following reasons: .... (6) any other reason that ju s t ifie s relief." This catch-all provision, however, does not allow a p a r t y to raise post-judgment arguments that could have been raised e a rlie r. The Ninth Circuit recently held: "Relief under Rule 60(b)(6) w ill not be granted unless the moving party is able to show both injury a n d circumstances beyond its control prevented timely action to protect it s interest." Gardner v. Martino, 563 F.3d 981, 991 (9th Cir. 2009). T h e Court has carefully reviewed the Ohlins' "Notice of Motion a n d Motion To: Dismiss Plaintiffs Motion For Summary Judgment" (C o u r t Doc. 51) and "Defendants' Refusal of Order of the Court Dated 6 J a n u a r y 2010 for Fraud & Notice of Payment of Alleged Debt" (Court D o c . 53). Having done so, the Court finds nothing in them showing " c ir c u m s t a n c e s beyond [the Ohlins'] control [that] prevented timely
-4-

a ct io n to protect [their] interest." Gardner, 563 F.3d at 991. It is true t h a t , in the affidavits attached to their most recent filing, the Ohlins s ta t e that they "neglected to raise" the argument that they "never r e c e iv e d any oath or affirmation, subscribed and sworn to by a person h a v in g personal knowledge of any alleged facts pertaining to alleged S u b t it le A income taxes owed by [them], in connection with" the u n d e r ly in g case or this case because they are "unschooled in the law." See Court Docs. 53-1 at ¶ 2 and 53-2 at ¶ 2. It is equally true, however, t h a t the Court afforded them ample opportunity to retain counsel a n d /o r to appear pro se to defend against the United States' motion. They failed to do either. A ls o , that they have now raised lengthy, detailed arguments c h a lle n g in g the government's authority to tax them and "all American c it iz e n s [,]" Ohlins' Mtn. at ¶ 7, indicates to the Court that they were c a p a b le of raising such arguments when the summary judgment motion w a s pending and had not already been decided.2 Their failure to do so

The Court notes that some, if not most, of the Ohlins' arguments are a v a ila b le in prepared briefs or memoranda on the Internet. Compare O h l i n s ' M t n . (C o u r t D o c . 51) at ¶ 10 w i t h w w w . t a x f r e e d o m .c o m /T a x P a g e .p d f .
-5-

2

in the ample time afforded them for their stated reason does not c o n s t it u t e the type of extraordinary circumstances necessary to obtain r e lie f under Fed. R. Civ. P. 60(b)(6). C . Rule 59 Does Not Apply T h e Ohlins do not cite Fed. R. Civ. P. 59, which allows a court to a lt e r or amend it judgment. Nonetheless, the Court has considered w h e t h e r relief is available to the Ohlins under Rule 59. After reviewing t h e Ohlins' motion, the Court concludes that no grounds have been s t a t e d for relief under Rule 59. A district court may alter or amend judgment under Rule 59(e) if " (1 ) the district court is presented with newly discovered evidence, (2) t h e district court committed clear error or made an initial decision that w a s manifestly unjust, or (3) there is an intervening change in c o n tr o llin g law." Duarte v. Bardales, 526 F.3d 563, 567 (9th Cir. 2008) (c it in g Zimmerman v. City of Oakland, 255 F.3d 734, 740 (9th Cir. 2 0 0 1 ) ). T h e rule permits a court to vacate a judgment rather than merely a m e n d it. Foman v. Davis, 371 U.S. 178, 181 (1962); Ortiz v. Gaston C o u n ty Dyeing Machine Co., 277 F.3d 594, 597 n.1 (1 st Cir. 2002)
-6-

(c it a t io n omitted). One purpose of Rule 59(e) is "to allow the district c o u r t to correct its own errors, sparing the parties and appellate courts t h e burden of unnecessary appellate proceedings." Howard v. United S t a t e s , 533 F.3d 472, 475 (6th Cir. 2008) (quoting Charles v. Daley, 799 F .2 d 343, 348 (7th Cir. 1986)). A Rule 59(e) motion is a proper vehicle to seek reconsideration of a s u m m a r y judgment. School Dist. No. 1J, Multnomah County, Ore. v. A C a n d S , Inc. 5 F.3d 1255, 1262 (9 th Cir. 1993). The decision whether to a lt e r or amend a judgment is generally committed to the court's d is c r e t io n . Id. (citing Fuller v. M.G. Jewelry, 950 F.2d 1437, 1441 (9 th C ir . 1991); Backlund v. Barnhart, 778 F.2d 1386, 1388 (9 th Cir. 1985)). R e c o n s id e r a t io n of a judgment after its entry is an extraordinary r e m e d y , however, which should be used sparingly. Carroll v. Nakatani, 2 4 3 F.3d 934, 945 (9th Cir. 2003). H e r e , the Ohlins have presented no newly discovered evidence. Although, in their recently-filed "Refusal of Order of the Court," Court D o c . 53, they accuse the United States, "through the willing cooperation o f this Honorable Court," of fraud, they provide no factual support for t h is allegation.
-7-

S e c o n d , there is no indication, for reasons already discussed, that t h e district court committed clear error or made an initial decision that w a s manifestly unjust. The Court has examined the Ohlins' legal a r g u m e n t s and believes they lack merit. Finally, the Ohlins have pointed to no change in controlling law t h a t would affect the Court's decision. Also, the Court's own research h a s failed to reveal any change in controlling law that would alter the C o u r t 's earlier decision. F o r all of the foregoing reasons, the Court declines to recommend t h a t the Judgment be altered or amended. III. C O N C L U S IO N

B a s e d on the foregoing, IT IS RECOMMENDED that the Ohlins' M o t io n to Dismiss Plaintiff's Motion for Summary Judgment (Court D o c . 51) be DENIED. IT IS ORDERED that the Clerk shall serve a copy of these F in d in g s and Recommendation of United States Magistrate Judge upon t h e parties. The parties are advised that, under to 28 U.S.C. § 636, any o b je c t io n s must be filed with the Clerk of Court and copies served on o p p o s in g counsel within fourteen (14) days after receipt hereof, or
-8-

o b je c t io n is waived. D A T E D this 10th day of February, 2010. /s / Carolyn S. Ostby United States Magistrate Judge

-9-