Bartlett et al v. United States of America,

Filing 13

ORDER ADOPTING 10 Findings and Recommendations re: 5 Motion to Dismiss/Lack of Jurisdiction filed by United States of America. Findings and Recommendations are adopted in their entirety and this case is dismissed wihtout prejudice. Signed by Judge Richard F. Cebull on 7/15/2011. Copy of Order and Judgment to W. and E. Bartlett. (KCJ)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONT ANA2011
BILLINGS DIVISION
WILLIAM G. BARTLETT, and
ELIZABETH K. BARTLETT
Plaintiffs

v.

)
)
)
)
)
)
)

UNITED STATES OF AMERICA, )
)

Defendant.
)

FILED
BilliNGS DIV.

JUl 15 Af1110 29

PATRIC.~ E. DUFiY , CL"',­
L..r",

BY ---;::::-:-:-::-_ __
~EPUTY Cl.ERK

Cause No. CV-1l-31-BLG-RFC-CSO

ORDER ADOPTING FINDINGS
AND RECOMMENDATIONS OF
ll.S. MAGISTRATE JUDGE

--------------------)
Plaintiffs William and Elizabeth Bartlett, appearing pro se, allege the
Internal Revenue Service violated their rights by improperly issuing a decision in
response to their request for a "Collection Due Process" ("COP") hearing. Doc. l.
The United States responded with a motion to dismiss brought pursuant to Rules
12(b)(1), (2), (5), and (6) of the Federal Rules of Civil Procedure and, in the
alternative, a motion for summary judgment. Doc. 5. United States Magistrate
Judge Carolyn Ostby has entered Findings and Recommendations with respect to
the motion, recommending that the Complaint be dismissed without prejudice
because the Bartlett's failed to respond to the motion within the time allotted by
this Court's Local Rules of Procedure. Doc. 10.
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Upon service of a magistrate judge's findings and recommendation, a party
has 14 days to file written objections. 28 U.S.c. § 636(b)(I). Six days after the
entry of the Findings and Recommendations, the Bartletts filed a document
entitled "Motion That Court Suspend Issuing Dimiss (sic) Ruling In This Case
Until Petitioner Has Completed Discovery." Doc. 11. Since the Bartlett's filing
contains arguments that can be construed as objections to Magistrate Judge
Ostby'S recommendation that the Complaint be dismissed, this Court must make a
de novo determination of those portions ofthe Findings and Recommendations to

which objection is made. 28 U.S.c. § 636(b)(J). For the following reasons, the
Bartlett's objections are overruled and the case must be dismissed under the
Henderson factors for failure to respond to the motion within the time allotted.

But even if this case were not dismissed for failure to respond, the United States'
motion to dismiss would be granted on its merits because the Court lacks
jurisdiction.
Magistrate Judge Ostby recommended the Complaint be dismissed for
failure to respond under Local Rule 7.1(d)(l)(B) after considering the five factors
courts ofthe Ninth Circuit must consider in determining whether a motion should
be deemed well-taken because the opposing party did not respond: (I) the public's
interest in expeditious resolution of the litigation; (2) the court's need to manage
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its docket; (3) the risk of prejudice to the defendants; (4) the public policy
favoring disposition of cases on their merits; and (5) the availability of less drastic
sanctions. Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986). After a
thorough review, Magistrate Judge Ostby concluded all of these factors weigh in
favor of dismissal.
The Bartletts assert they received an Order from Chief Judge John O. Conlin
dated May 31, 2011 that provided them until June 30, 2011 to respond to the
motion to dismiss, overruled Magistrate Judge Ostby's recommendation that their
case be dismissed, and "waiv[ed] the right of US District Court statute of
limitations of20 working days after proper notice." Doc. 11, p.1. The Bartletts
attached Chief Judge Conlin's Order to their objections. Not only does the Order
say nothing about the Findings and Recommendations, which were not issued
until almost a month later, Chief Judge Conlin's Order applies only in the Tax
Court proceeding in Docket No. 7499-11 and has no effect on this case. This
objection is overruled.
The Bartletts also assert they were "never properly served" with the motion
to dismiss because the United States "had improper return addresses to start with."
Doc. 11, p. 1. The Bartletts offer no specifics as to how the address was incorrect

and, in fact, the first sentence of their objections states plainly that the Bartletts
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"received a Motion to dismiss ..." Further, the Certificate of Service for the
motion provides that it was mailed to the Bartletts at the address they have listed
in all of their filings in this case. According to the copy of the envelope attached
to their objections, the Tax Court Order sent its Order to the same address. This
objection is also overruled.
Although the Bartlett's make additional arguments, they do not address the
reasons why Magistrate Judge Ostby's recommended dismissal of the Complaint.
But the additional arguments can be construed as a response to the United State's
motion to dismiss and since the Bartletts are proceeding pro se and untrained in
the law, the Court will consider them.
The Bartletts appear to argue that if they are allowed to maintain this case,
discovery will provide them evidence proving that the United States knowingly
and intentionally made false claims in their motion. Doc. 11, p.2. As best the
Court can tell, the Bartletts allege the United States falsely claimed it served the
Bartletts with the notice that is a prerequisite to placing a levy on a delinquent
taxpayer's property. But even if the Bartletts would likely succeed on the merits
after discovery, the United States' motion to dismiss is primarily based on this
Court's lack ofjurisdiction to hear this case. As argued by the United States in its
brief, this Court lacks subject matter jurisdiction over the Bartletts claims because
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the United States has not waived its sovereign immunity. See doc. 6, pp. 4-17. It
appears the Bartletts have another case pending in the Tax Court, which may be an
appropriate venue to resolve their disputes with the Internal Revenue Service.
The Bartletts also cite the Administrative Procedures Act,S U.S.C. § 702, as
authority for this Court's jurisdiction. But it has long been established that "the
APA does not afford an implied grant of subject-matter jurisdiction permitting
federal judicial review of agency action ..." Califano v. Sanders, 430 U.S. 99,
104-108 (1977). Since this Court otherwise lacks subject matter jurisdiction, the
AP A does not provide an independent basis for this Court to hear this case.
Accordingly, IT IS HEREBY ORDERED that Magistrate Judge Ostby's
Findings and Recommendations (doc. 10) are adopted in their entirety.
IT IS FURTHER ORDERED that the United States' Motion to Dismiss

(doc. 5) is GRANTED: this case is dismissed without prejudice.
The Clerk of Court shall notify the parties of the entry of this Order and
close this case.

/

DATED this -1--'''--­

CHARD F. CEBULL
UNITED STATES DISTRICT JUDGE

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