USA v. Melick

Filing 40

ORDER striking 34 Motion to Dismiss; granting 35 Motion to Strike. So Ordered by Judge Joseph A. DiClerico, Jr. (gla)

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

United States

v.

Civil No. 10-cv-00308-JD

C. Gregory Melick

o

R D E R

The government petitioned, under 26 U.S.C.

§§

7402(b) and

7604(a), to enforce an Internal Revenue Service summons against
C. Gregory Melick, a/k/a Charles Gregory Melick.

On February 14,

2011, Melick failed to appear to show cause why he should not be
compelled to obey the IRS summons.

The court issued a bench

warrant on February 15, 2011, for Melick's arrest.

Since the

bench warrant issued, Melick, who is proceeding pro se, has made
several filings but remains at large.

On July 15, 2011, Melick

moved to dismiss the government's petition.

The government moves

to strike Melick's motion to dismiss under the fugitive
disentitlement doctrine.

Melick opposes the motion.

Background
The IRS seeks Melick's testimony and documents within his
control in connection with its investigation of Melick's 2003 tax
liability.

On February 26, 2010, an IRS revenue officer served a

summons for C. Gregory Melick to appear at the IRS's office in

Laconia, New Hampshire, on March 16, 2010, to testify and produce
all documents or records in his possession or control regarding
~assets,

liabilities, or accounts held in the taxpayer's name or

for the taxpayer's benefit which the taxpayer wholly or partially
owns, or in which the taxpayer has a security interest" for the
period from September 1, 2009 to February 25, 2010.

Melick

failed to appear pursuant to the summons.
On May 11, 2010, the government filed a petition in this
court to enforce the IRS summons.

On May 17, the court issued an

order for Melick to show cause why the petition should not be
granted and scheduled a hearing for July 7, 2010, before the
magistrate judge.

On May 24, a deputy sheriff with the Carroll

County Sheriff's Office served Melick with the May 17 show cause
order at Melick's Tamworth, New Hampshire, home.
In response to the order, on June 2, Melick filed a motion
to dismiss under Federal Rule of Civil Procedure 12(b), alleging,
inter alia, lack of personal and subject matter jurisdiction.

He

also claimed that process and service of process were inadequate.
The government objected. On July 6, Melick returned the show
cause order, petition, and exhibits to the court, with a note the
order had been refused for insufficient process, lack of subject
matter jurisdiction, lack of personal jurisdiction, and failure
to state a claim.
2

Melick did not appear at the July 7, show cause hearing.

On

July 6, he filed a second motion to dismiss, again challenging
the court's jurisdiction and asserting the same arguments he had
made in his first motion to dismiss.
objected.

The government again

On July 8, the magistrate judge recommended that

Melick be ordered to obey the summons and that his June 2 motion
to dismiss be denied.

The magistrate judge also recommended that

the government be awarded its costs.

The court mailed the report

and recommendation to Melick at his home address.
On July 12, 2010, Melick filed a notice of a change of
address, informing the court that his mailing address was P.O.
Box 422, Chocorua, New Hampshire.

Melick stated that he might

return mail addressed to the wrong party or sent to a different
address.

The court resent the magistrate judge's report and

recommendation to the P.o. Box address.
On July 23, Melick filed a second notice of change of
address, stating that his correct mailing address was uCharles
Gregory Melick, Sui Juris, c/o P.O. Box 422, Chocorua [03817­
0422], New Hampshire, U.S.A."

Doc. no. 12.

Melick again said

that mail addressed to another name or to an address other than
the one given would not be ureceived or accepted" by him.

Id. 1

lMelick also sent a letter purporting to notify the court
that the government had defaulted on its claims and thus that the

3

On July 30, the court sent Melick the report and recommendation
for the third time.

The court noted that Melick had returned

mail sent to both his post office box and his street address and
that the court had called the
address. 2

u.s.

Post Office to confirm his

On August 5, Melick filed a third notice of change of

address, in which he provided a new mailing address, a post
office box in North Conway, New Hampshire.

The court sent the

report and recommendation to the North Conway address.
On August 6, 2010, the court denied Melick's motions to
dismiss, approved the magistrate judge's report and
recommendation, granted the government's petition to enforce the
IRS summons, and awarded costs to the government.

The court

ordered Melick to appear before an authorized Revenue Officer of
the IRS at the IRS's Portsmouth, New Hampshire, office on August
20, 2010, at 9:30 a.m.,

to give testimony and produce the books

court had ~substantial grounds to dismiss the motion and vacate
the order.
." In his response on July 30, the Chief Deputy
Clerk informed Melick that the court would not act upon his
letter request because it was not in the form of a formal
pleading, as required by the Federal Rules of Civil Procedure and
local rules.
2Three days after the magistrate judge's report and
recommendation was approved, the July 30 copy of the report and
recommendation was returned to the court with the ~Refused"
notation checked.
4

and records called for by the February 26, 2010, summons.

Melick

was served in hand on August 19, 2010.
Melick failed to appear at the IRS office on August 20,
2010, in response to the court's order.

Three hours after his

ordered appointment, Melick left a telephone message with the
Taxpayer Walk-in Service that he would need to reschedule his
appointment.

On September 6, Melick wrote a letter to the IRS

indicating that he expected to provide the 2003 information
within thirty days.

On September 13, Revenue Officer David

Kalinowski contacted Melick, who told Kalinowski that he had
hired an accountant to prepare a substitute tax return for 2003.
The IRS did not receive any responsive paperwork with regard to
Melick's 2003 tax liability within thirty days.
On November 17 and 23, 2010, Revenue Officer Kalinowski
attempted to contact Melick by telephone to determine whether he
still intended to comply with the court's order.

On both

occasions, he received no answer and left messages on Melick's
answering machine asking him to return the call.

Melick did not

return Kalinowski's calls.
On December 16, 2010, the government moved to hold Melick in
civil contempt.

In response, the court ordered Melick to show

cause in court on February 14, 2011, at 10 a.m., as to why he
should not be held in contempt of the court's August 6, 2010,
5

enforcement order.

The court specifically warned Melick that if

he did not appear for the hearing, a warrant would issue for his
arrest.

Deputy U.S. Marshal Paul Schmieder personally served

Melick with the show cause order and related documents on
February 3, 2011.
On February 11, 2011, Melick mailed a 14-page uwarning
notice" to the district court in which he claimed that the court
and judge were uimposing provisions of a contract counter to
public morals."

He attached a copy of the court's January 14

show cause order, demonstrating that he was well aware of the
order.
hearing.
arrest.

Melick failed to appear for the February 14 show cause
The government asked for a bench warrant for Melick's
The court issued a bench warrant on February 15, 2011.

Melick, however, has not turned himself in and continues to evade
arrest.
In June of 2011, ten individuals who were not parties or
counsel in this case attempted to file a UPetition for Redress of
Grievances in Support of Motion to Dismiss" and an uOrder for
Dismissal with Prejudice" on Melick's behalf.
the court rejected the papers.

On June 21, 2011,

The order that rejected the

filings stated that Melick was subject to an outstanding bench
warrant for his arrest and that he remained at large.

6

Melick then sent the same npetition" with the same third­
party signatures back to the court, along with a cover page and a
purported verification signed by him and notarized.

The court

again rejected the attempted filing in a June 28, 2011, order.
The order, which directed the clerk of court to nreturn those
documents to Charles Gregory Melick, along with a copy of this
order, to the return address provided on the mailing envelope,"
also specifically noted that na bench warrant was issued for his
arrest on February 15, 2011."
Melick filed his currently pending motion to dismiss on July
15, 2011.

Discussion
Melick moves to dismiss the government's action against him
on a variety of grounds, including failure to state a claim,
failure to join an indispensable party, lack of subject matter
jurisdiction, insufficient process, and insufficient service of
process.

Most, if not all, of the issues he raises have been

rejected by the court in prior orders.

The government moves to

strike Melick's motion to dismiss under the fugitive
disentitlement doctrine.

Melick filed an objection, which

primarily repeats parts of his motion to dismiss.

7

The fugitive disentitlement doctrine permits courts to
strike fugitives' attempts to participate in proceedings from
which they have fled.

See, e.g., Goya Foods, Inc. v. Unanue­

Casal, 275 F.3d 124, 131 (1st Cir. 2001); United States v.
Morgan, 254 F.3d 424, 425 (2nd Cir. 2001); United States v.
Nabepanha, 200 F.R.D. 480, 483

(S.D. Fla. 2001).

The doctrine is

a discretionary one, arising out of the courts' "inherent
authority to protect their proceedings and judgments in the
course of discharging their traditional responsibilities."
Barnett v. YMCA, 268 F.3d 614, 617

(8th Cir. 2001).

The fugitive

disentitlement doctrine may be applied in a civil action when the
following three conditions are met:
fugitive;

(1)

the party must be a

(2) his fugitive status must have a connection to the

civil action; and (3)

the sanction employed by the district court

must be necessary to effectuate the concerns underlying the
fugitive disentitlement doctrine.

Walsh v. Walsh, 221 F.3d 204,

215 (1st Cir. 2000).

I.

Melick's Fugitive Status
A person is a fugitive when he is subject to a warrant for

arrest and is intentionally avoiding arrest.

See, e.g. United

States v. Barnette, 129 F.3d 1179, 1184 (11th Cir. 1997).

Intent

to avoid arrest can be inferred from the individual's failure to
8

surrender to authorities once he becomes aware of the warrant.
Id.

The fugitive disentitlement doctrine applies to an

individual fleeing an arrest warrant in a civil case.

See Goya

Foods Inc., 275 F.3d at 126-28.
A bench warrant for Melick's arrest has been outstanding
since February 15, 2011, and Melick is aware of the warrant.
Melick was served with the warrant.

In addition,

the court

mailed two orders to Melick in June of 2011, in which it stated
that Melick was subject to an outstanding bench warrant for his
arrest.

Melick himself referred to the court's

~February

15,

2011 issuance of a Procedural Order for the arrest of C. Gregory
Melick" in his motion to dismiss.

Nevertheless, Melick has

failed to surrender to authorities and,

therefore, qualifies as a

fugitive under the fugitive disentitlement doctrine.

Melick's

argument that he is not a fugitive because the court lacks
jurisdiction over him is meritless.

II.

Connection Between Melick's Fugitive Status and This Action

An individual's fugitive status must also arise directly
from the civil action in which the fugitive disentitlement
doctrine is to be applied.

Goya Foods, 275 F.3d at 126.

Melick

is a fugitive because he has refused to appear in court as
ordered and continues to ignore the arrest warrant.
9

As such,

Melick is a fugitive from the proceedings in this action, and his
fugitive status is directly connected to this action.

III.

Policies Underlying the Doctrine
The following factors also affect the application of the

fugitive disentitlement doctrine:

(1) the difficulty of

enforcement against one not willing to subject himself to the
court's authority,

(2) the inequity of allowing the fugitive to

use the resources of the courts only if the outcome is an aid to
him,

(3) the need to avoid prejudice to the nonfugitive party,

and (4) the discouragement of flights from justice.

Barnette,

129 F.3d at 1183; see also Empire Blue Cross & Blue Shield v.
Finkelstein, 111 F.3d 278, 280 (2d Cir. 1997).
Melick has consistently defied the court's authority in this
action.

He has ignored multiple orders to appear in court and

continues to ignore the outstanding bench warrant.

Despite his

failure to comply with the court's authority with respect to his
participation in this action, Melick again seeks to use the
court's authority to dismiss the case, raising many of the same
arguments that the court previously rejected in denying his other
motions to dismiss.

Because this is an IRS action, not a civil

forfeiture proceeding, Melick's arguments pertaining to
forfeiture proceedings are not persuasive.
10

~

.

In short, Melick has demonstrated that he is only willing to
accede to the court's authority "if the outcome is an aid to
him."

Barnette, 129 F.3d at 1183.

The fugitive disentitlement

doctrine enables courts to protect their rulings and judgments
under just such circumstances.

See, e.g., Goya Foods, Inc., 275

F.3d at 129; Barnette, 129 F.3d at 1183; Nabepanha, 200 F.R.D. at
483.

Therefore, the fugitive disentitlement doctrine applies in

this case, and Melick's motion to dismiss is struck.

Conclusion
For the foregoing reasons, the government's motion to strike
Melick's motion to dismiss,
motion to dismiss,

(doc. no. 35), is granted.

(doc. no. 34), is struck.

SO ORDERED.

August 30, 2011
cc:

Gretchen Leah Witt, Esq.
C. Gregory Melick, pro se

11

Melick's