Lee v. United States Of America
Filing
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ORDER Denying as moot 62 Motion to Stay. Lees request to consolidate this action with the tax refund action is Denied. Show Cause Response due by 12/30/2014. Responsive Memorandum due by 1/14/2015. Reply due by 1/21/2015. Signed by Magistrate Judge Peggy A. Leen on 12/1/2014. (Copies have been distributed pursuant to the NEF - SLR)
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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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THEODORE F. LEE,
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Case No. 2:13-cv-00483-JAD-PAL
Plaintiff,
ORDER AND ORDER TO SHOW CAUSE
v.
(Mot Cont Stay – Dkt. #62)
UNITED STATES OF AMERICA,
Defendant.
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Before the court is Plaintiff Theodore Lee’s Motion to Continue to Stay the Proceedings
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Until a Civil Income Tax Refund Action can be Filed for 2006 (Dkt. #62). The court has
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considered the Motion, Memorandum in Support (Dkt. #63), Declaration of Edward O.C. Ord in
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Support (Dkt. #64), the government’s Opposition (Dkt. #65), and Lee’s Reply (Dkt. #67).
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BACKGROUND
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This is one of three cases filed in this district relating to Lee’s 2006 tax liability. The
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government filed the first action, Case No. 2:12-cv-1994-GMN-PAL, to enforce an IRS
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summons served on Lee June 7, 2012. See Petition to Enforce (Dkt. #1). This is the second-filed
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action, and involves a Complaint (Dkt. #1) against the United States to quash a Formal
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Document Request (“FDR”) dated May 31, 2012. The Complaint was initially filed in the
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Northern District of California because counsel for Lee accepted service of the FDR in San
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Francisco, California. However, the case was transferred to this district where Lee resides. The
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third action, Lee v. United States, 2:14-cv-00606-RCJ-PAL, was filed April 21, 2014, and is a
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complaint to recover a tax refund for the 2006 tax year.
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The government moved to dismiss its petition to enforce the IRS summons in Case No.
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2:12-cv-1994-GMN-PAL because the parties resolved their disputes about the documents the
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government sought, and the government was ultimately satisfied that Lee had complied with the
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summons. Lee opposed the government’s motion to dismiss, arguing the action should be
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maintained so that he could challenge the government’s ability to use any of the testimony and
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documents it obtained by summons and FDR in a tax refund case he intended to file. On
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November 20, 2014, the district judge granted the government’s motion to dismiss its petition to
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enforce over Lee’s objection and denied Lee’s Motion to Stay (Dkt. #45) and Motion to Strike
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(Dkt. #55) as moot. See Order and Clerk’s Judgment (Dkt. ## 61, 62).
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Lee filed this action challenging the IRS’s authority to issue a FDR at the same time it
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was pursuing a petition to enforce its summons for the same documents. Counsel for Lee and
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counsel for the government negotiated about the documents Lee would produce in response to
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the summons and FDR, Lee produced documents, and the government is satisfied Lee has
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complied with both the summons and FDR. However, Lee’s Motion to Stay (Dkt. #62) requests
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a stay until Lee could file his tax refund case. He also seeks consolidation of all three cases
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before one judge to decide “these inextricably intertwined” cases and issues in one proceeding.
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Motion at 2:3-4.
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The United States opposed the stay and consolidation of all three actions, acknowledging
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that the factual and legal issues of this case and the first-filed action (Case No. 2:12-cv-1994-
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GMN-PAL) are the same and that they are related cases.
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consolidating this case with the tax refund case, arguing the two cases do not involve common
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factual or legal issues. The issue in this case is whether the IRS issued the FDR in good faith.
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The issue in the tax refund case (Case No. 2:14-cv-00606-RCJ-PAL) is whether the Lee overpaid
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his taxes in 2006. The United States also maintains that the instant case is now moot because
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Lee complied with the FDR, and there is no longer a justiciable claim for the court to adjudicate.
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Lee argues he may maintain this action, notwithstanding his compliance with the FDR so
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that he can prevent the government from using documents obtained by summons and the FDR
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against him in the tax refund case.
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The United States objects to
DISCUSSION
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The United States’ Petition to Enforce Summons in Case No. 2:12-cv-1994-GMN-PAL
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has now been dismissed, the district judge having found that because Lee complied with the IRS
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summons, “there is nothing further to prosecute,” and dismissal of that case was appropriate. It
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is undisputed that Lee complied with the FDR he challenges in this action. He seeks to maintain
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this action and consolidate it with the tax refund case to challenge the ability of the government
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to use testimony and documents he provided in response to the summons and FDR. However,
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for the same reason the district judge dismissed the first filed action, it appears that since this
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action was filed to quash the FDR, and Lee has now complied with the FDR, there is nothing
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further to prosecute in this action Accordingly,
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IT IS ORDERED:
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1.
Lee’s Motion to Continue to Stay the Proceedings Until Civil Income Tax Refund
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Action Can be Filed for 2006 (Dkt. #62) is DENIED as MOOT, Lee having filed
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a complaint for a tax refund.
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2.
Lee’s request to consolidate this action with the tax refund action is DENIED.
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Lee shall have until December 30, 2014, in which to show cause why this action
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should not be dismissed, as the action was instituted to quash a Formal Document
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Request, and Lee has now complied with that request.
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4.
memorandum.
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The United States shall have until January 14, 2015, in which to file a responsive
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Lee shall have until January 21, 2015, to file a reply to the government’s
response.
DATED this 1st day of December, 2014.
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PEGGY A. LEEN
UNITED STATES MAGISTRATE JUDGE
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