United States of America v. Mengedoht et al

Filing 15

MEMORANDUM AND ORDER - THEREFORE, IT IS ORDERED THAT: The defendant's objections and refusal for cause, Filing No. 13 , are overruled. The findings and recommendation of the magistrate judge, Filing No. 11 , is adopted in its entirety. D efendants Estate of Charles A. Mengedoht and H C J Holdings Trust are in default, and the Court hereby enters default judgment against each of them. Jan Mengedoht shall file a brief in support of his motion to dismiss, Filing No. 8 , within 14 days of the date of this order, or face dismissal of his motion. Ordered by Senior Judge Joseph F. Bataillon. (Copy mailed to pro se party)(TCL)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA

UNITED STATES OF AMERICA,
Plaintiff,

8:17CV238

v.
MEMORANDUM AND ORDER
JAN M. MENGEDOHT, Individually, and as
Executor of the Charles A. Mengedoht
Estate and as Trustee of the H C J
Holdings Trust; and WASHINGTON
COUNTY TREASURER,
Defendants.

This matter is before the court on the Findings and Recommendation, Filing No.
11, of the magistrate judge. This case involves an assessment of taxes by the United
States of America against the defendants.

Filing No. 1. Plaintiff filed a complaint;

defendant Jan Mengedoht filed a motion to dismiss on behalf of the defendants; and the
magistrate judge ordered counsel to appear and represent defendants Estate of Charles
A. Mengedoht and H C J Holdings Trust.

Filing No. 10.

Counsel did not file an

appearance. As stated by the magistrate judge:
On August 16, 2017, the court ordered Defendants Estate of Charles A.
Mengedoht and H C J Holdings Trust to obtain the services of counsel and
have that attorney file an appearance on their behalf by no later than
September 6, 2017. The order warned that failure to comply with the
court’s order may result in an entry of default and/or default judgment
against the noncomplying defendants. (Filing No. 10). The order was
mailed to Defendant Jan M. Mengedoht, who accepted service on behalf
of Defendants Estate of Charles A. Mengedoht and H C J Holdings Trust,
and who purportedly filed a motion to dismiss on their behalf. The mailing
was mailed to Jan M. Mengedoht’s address of record and it not returned.
Defendants Estate of Charles A. Mengedoht and H C J Holdings Trust
failed to comply with the court’s order.

Filing No. 11.
Thereafter, Jan M. Mengedoht, defendant, filed an objection and refusal for
cause.

Filing No. 13.

Defendant first contends that he does not wish to have a

magistrate work on any matters in this case.

In accordance with 28 U.S.C. §

636(b)(1)(A), the court is permitted to distribute certain tasks, such as making findings
and recommendations in dispositive issues, to a magistrate judge. The court has done
so in this case, and the defendant has no grounds for this request.
Next, defendant contends that the court order dated on August 16, 2017, Filing
No. 10, was not served upon a co-trustee of HCJ Holdings. Jan Mengedoht did not
disclose to the court who this person might be as it relates to this case. Likewise, Jan
Mengedoht indicates he did not accept service of said order dated August 16, 2017 on
behalf of HCJ Holdings or the Estate of Charles A. Mengedoht. However, the court
finds that the service was in fact sent to Jan Mengedoht as Trustee of the HCJ Holdings
Trust, and to Jan M. Mengedoht as the Executor of the Charles A. Mengedoht Estate.
Accordingly, neither of these objections have merit. The service clearly occurred. See
Filing Nos. 10 and 11, orders sent by Clerk of Court via mail.
Third, Jan Mengedoht contends that there is an indispensable party, a possible
executor of the estate of Carl Mengedoht.

He does not name this person.

Jan

Mengedoht is free to file a motion to add an additional party, if he so chooses. See Fed.
R. Civ. P. 18, 19 and 20.
Next, Jan Mengedoht argues that grounds for dismissal are set forth in his
motion to dismiss pursuant to Fed. R. Civ. P. 12(b). See Filing No. 8. Jan Mengedoht
argues the complaint fails to state a claim upon which relief can be granted by failing to
2

show facts sufficient to support a claim that there was a federal tax lien against the
property of HCJ Holdings. It is true that Jan Mengedoht filed a motion to dismiss.
However, thereafter, the magistrate judge issued an order that on or before September
6, stating “Defendants the Estate of Charles A. Mengedoht and H C J Holdings Trust
shall obtain the services of counsel and have that attorney file an appearance on their
behalf, in the absence of which the court may file an entry and/or judgment of default
against each non-complying party without further notice.” Filing No. 10. The magistrate
judge determined that defendants Estate of Charles A. Mengedoht and H C J Holdings
Trust failed to comply with the court’s order. The magistrate judge also stayed the
motion to dismiss, pending the outcome of her order. Because the court finds the
Estate of Charles A. Mengedoht and H C J Holdings Trust are in default, the court will
now lift the stay. However, pursuant to the local rules, a party must file a brief in
support of a dispositive motion, such as a motion to dismiss. NECivR 7.1(a)(1)(A).
Defendant has failed to file a brief in support of his motion to dismiss. The court will
grant Jan Mengedoht 14 days from the date of this order to so file his brief. Failure to
do so could result in dismissal of his motion to dismiss.
THEREFORE, IT IS ORDERED THAT:
1. The defendant’s objections and refusal for cause, Filing No. 13, are overruled;
2. The findings and recommendation of the magistrate judge, Filing No. 11, is
adopted in its entirety;
3. Defendants Estate of Charles A. Mengedoht and H C J Holdings Trust are in
default, and the Court hereby enters default judgment against each of them;

3

4. Jan Mengedoht shall file a brief in support of his motion to dismiss, Filing No.
8, within 14 days of the date of this order, or face dismissal of his motion.

Dated this 12th day of December, 2017.

BY THE COURT:
s/ Joseph F. Bataillon
Senior United States District Judge

4