Volpicelli v. United States

Filing 25

ORDER DISMISSING CASE. IT IS HEREBY ORDERED that the 12 Motion to Dismiss is GRANTED and all other pending motions are DENIED as moot. FURTHER ORDERED, the Clerk shall enter judgment and close the case accordingly. Signed by Chief Judge Robert C. Jones on 7/5/2011. (Copies have been distributed pursuant to the NEF - KO)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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LOGAN R. VOLPICELLI,

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In 2002, the Internal Revenue Service levied against certain property then in the custody

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Plaintiff,
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vs.
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UNITED STATES OF AMERICA,
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Defendant.

3:10-cv-00548-RCJ-RAM
ORDER

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of the Reno Police Department in order to satisfy in part the tax liability of Ferrill Volpicelli

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(“Ferrill”). In 2003, Ferrill sued the United States on behalf of his twelve-year-old son, Logan

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Volpicelli (“Logan” or “Plaintiff”), arguing that the property levied belonged to Logan, and not

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to Ferrill. That case is Case No. 3:03-cv-00090-HDM-VPC. The Hon. Howard D. McKibben

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entered judgment against Ferrill and for the United States, and the Court of Appeals dismissed

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Ferrill’s appeal for failure to prosecute. Logan, who is now an adult, has now brought the same

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suit in pro se. As his father alleged in the previous case, Logan argues that his great-

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grandmother had “inadvertently” made several checks out to Ferrill, though those checks were

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meant for the benefit of Logan and his sister. The Reno Police Department seized the checks,

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some cash, and other property from Ferrill’s safe deposit box pursuant to a search warrant.

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Plaintiff argues that the previous case was dismissed without prejudice, but this does not

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appear to be the case. Judge McKibben entered judgment in favor of the United States and

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against Ferrill. (See J., July 29, 2004, ECF No. 52 in Case No. 3:03-cv-00090-HDM-VPC).

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Ferrill’s appeal was dismissed for failure to prosecute. (See Order, Feb. 23, 2005, ECF No. 63 in

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Case No. 3:03-cv-00090-HDM-VPC). The case probably should have been dismissed without

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prejudice in the district court so that Plaintiff could bring the present action upon reaching

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majority. See Johns v. Cnty. of San Diego, 114 F.3d 874, 878 (9th Cir. 1997). But it was not.

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Final judgment was entered against Ferrill in his capacity as Plaintiff’s representative. The

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present claim is therefore precluded. Plaintiff’s remedy at this point is to file a Rule 60(b)(6)

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motion for relief from judgment in Case No. 3:03-cv-00090-HDM-VPC. The Court expresses

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no opinion on the merits of the claim.

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CONCLUSION
IT IS HEREBY ORDERED that the Motion to Dismiss (ECF No. 12) is GRANTED and
all other pending motions are DENIED as moot.
IT IS FURTHER ORDERED that the Clerk shall enter judgment and close the case
accordingly.
IT IS SO ORDERED.
Dated this 5th th dayof July, 2011.
Dated this 28 day of June, 2011.
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ROBERT C. JONES
United States District Judge

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