Obot, et al v. Internal Revenue Service

Filing 11

DECISION AND ORDER: For the reasons stated in the attached Decision and Order, the Defendant's motion to dismiss for lack of subject-matter jurisdiction 6 is granted. The Clerk of Court shall take all steps necessary to close this case. A copy of this entry and the Decision and Order have been mailed to Otu A. Obot, 502 Windermere Blvd., Amherst, NY 14226. SO ORDERED. Signed by Hon. Richard J. Arcara on 3/6/18. (LAS)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
______________________________________
OTU A. OBOT,
Plaintiff, 1
16-CV-114-A
DECISION AND ORDER

v.
INTERNAL REVENUE SERVICE,
Defendant.
_______________________________________

This case is before the Court on the Defendant’s motion to dismiss the pro se
complaint for lack of subject-matter jurisdiction, insufficient process, and insufficient
service of process, pursuant to Federal Rules of Civil Procedure 12(b)(1), (4), and (5).
Liberally construed, the complaint (1) seeks a refund of taxes, interest, and
penalties the Plaintiff claims the IRS has assessed against him at various times dating
back to 1999; (2) claims that the IRS has wrongfully levied his Social Security benefits;
and (3) seeks to enjoin the IRS from continuing to assess or collect similar taxes and
penalties. For the reasons stated below, the Court lacks subject-matter jurisdiction over
the Plaintiff’s claims.

The Defendant’s motion to dismiss for lack of subject-matter

jurisdiction is therefore granted. 2

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The complaint identifies both Carol O. Obot and Otu A. Obot as plaintiffs. The pleadings in this case,
however, have been signed only by Otu A. Obot, who is proceeding pro se. Ms. Obot has not signed any
pleadings, and no attorney has entered an appearance on her behalf. Ms. Obot must proceed in this case
either personally or through an attorney. See 28 U.S.C. § 1654. The Court therefore construes the
complaint as being brought only by Otu A. Obot.

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Because the Court lacks subject-matter jurisdiction over this case, the Court need not address the
Defendant’s motions to dismiss for insufficient process or insufficient service of process. Likewise, the
Plaintiff argues that he is entitled to default judgment and that the Defendant’s motion to dismiss was
untimely. See Docket No. 9. Even if these arguments had merit (and the Court does not suggest that they
do), a court may not enter default judgment in a case over which it lacks subject matter jurisdiction, and a
motion to dismiss for lack of subject-matter jurisdiction may be brought at any time. See Saunders v.
Morton, 269 F.R.D. 387, 393 (D. Vt. 2010) (“The Court has authority to enter judgment only on those claims

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A. Refund claims
“[T]he United States, as sovereign, is immune from suit save as it consents to be
sued,[] and the terms of its consent to be sued in any court define that court’s jurisdiction
to entertain the suit.” United States v. Testan, 424 U.S. 392, 399 (1976) (quotation marks
omitted). The United States has waived its sovereign immunity—and, thus, a federal
district court has subject-matter jurisdiction—over claims “for the recovery of any internalrevenue tax alleged to have been erroneously or illegally assessed or collected, or any
penalty claimed to have been collected without authority or any sum alleged to have been
excessive in any manner wrongfully collected under the internal revenue laws.” 28 U.S.C.
§ 1346(a)(1).
But this grant of subject-matter jurisdiction is conditioned on, among other things,
a taxpayer first “duly fil[ing]” with the IRS “a claim for refund or credit.” I.R.C. § 7422(a).
A “failure to satisfy th[is] prerequisite[] for initiating a refund suit . . . deprive[s] a district
court of subject matter jurisdiction over any such refund action . . . regardless of the suit’s
potential merits.” United States v. Forma, 42 F.3d 759, 763-64 (2d Cir. 1994). And a
taxpayer’s compliance with “the . . . requirements set forth in [I.R.C.] § 7422(a) and its
accompanying regulations” must be pleaded in the taxpayer’s complaint—that is, his
complaint must “specify . . . facts that could plausibly constitute the basis of a claim for a
refund.” Donnelly v. United States, 550 F. App’x 54, 54 (2d Cir. 2014).
Nothing in Plaintiff’s complaint—even when it is read in the charitable light to which
pro se litigants are entitled—plausibly suggests that the Plaintiff filed a refund claim with

over which it has subject matter jurisdiction.”); Fed. R. Civ. P. 12(h)(3). See also Fed. R. Civ. P. 55(d) (“A
default judgment may be entered against the United States, its officers, or its agencies only if the claimant
establishes a claim or right to relief by evidence that satisfies the court.”)

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the IRS before bringing this case. He has, therefore, not shown that he has complied
with § 7422(a), and the Court accordingly lacks subject-matter jurisdiction over Plaintiff’s
refund claims.
B. Wrongful levy claims
A federal district court has subject-matter jurisdiction over a wrongful-levy claim
brought by “any person (other than the person against whom is assessed the tax out of
which such levy arose) who claims an interest in or lien on such property.” I.R.C.
§ 7426(a). This waiver of sovereign immunity is, therefore, limited to suits brought by a
person other than the taxpayer whose property has been levied. See, e.g., Hynard v.
IRS, 233 F. Supp. 2d 502, 511 (S.D.N.Y. 2002).
Here, however, the complaint alleges that the Plaintiff—not someone else—is the
person whose property has been levied. The Plaintiff has therefore not established that
his wrongful levy claim falls within a waiver of the United States’ sovereign immunity. As
a result, he has not established that the Court has subject-matter jurisdiction over his
wrongful levy claims.
C. Claim for an injunction
Finally, the Plaintiff seeks an injunction against further allegedly improper tax
assessments.
The Anti-Injunction Act provides, in relevant part, that “no suit for the purpose of
restraining the assessment or collection of any tax shall be maintained in any court by
any person, whether or not such person is the person against whom such tax was
assessed.” 26 U.S.C. § 7421(a). This language “could scarcely be more explicit.” Bob
Jones Univ. v. Simon, 416 U.S. 725, 736 (1974). Its purpose is “to protect[] . . . the

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Government’s need to assess and collect taxes as expeditiously as possible with a
minimum of preenforcement judicial interference, ‘and to require that the legal right to the
disputed sums be determined in a suit for refund.’” Id. (quoting Enochs v. Williams
Packing & Navigation Co., 370 U.S. 1, 7 (1962)). In other words, the Plaintiff may not
seek an order enjoining the collection of taxes. Instead, the Anti-Injunction Act provides
that the Plaintiff must first pay his taxes and then sue for a refund.
When the Anti-Injunction Act applies, as it does here, courts lack subject matter
jurisdiction over a taxpayer’s request for injunctive relief. See Biegeleisen v. Ross, 164
F.3d 617, at *1 (2d Cir. 1998) (table decision); Johnson v. United States, 680 F. Supp.
508, 512 (E.D.N.Y. 1987) (“If an action is barred by the Anti-Injunction Act the district
court lacks subject matter jurisdiction and the complaint must be dismissed.”). See also
Obot v. IRS, 12-CV-1053-RJA-LGF, 2013 WL 6490256, at *3-4 (W.D.N.Y. Sept. 26, 2013)
(in nearly identical case, explaining why exceptions to Anti-Injunction Act do not apply).
The Court therefore lacks subject-matter jurisdiction over any claims for an injunction
against the future collection of taxes.
D. Leave to amend
A court typically “should not dismiss” a pro se complaint “without granting leave to
amend at least once when a liberal reading of the complaint gives any indication that a
valid claim might be stated.” Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000)
(quotation marks and citation omitted).

But if “the problem” with a complaint is

“substantive,” such that “better pleading will not cure it,” “[r]epleading would . . . be futile,”
and a pro se plaintiff need not be provided leave to amend. Id.

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Leave to amend would be futile in this case. The Plaintiff’s claims for a wrongful
levy and an injunction cannot be remedied by better pleading. His refund claims could
possibly be saved by better pleading, but the Plaintiff has previously been warned of
§ 7422(a)’s exhaustion requirements and has nonetheless failed in this case to show that
he complied with those requirements. See Obot v. IRS, 12-CV-1053-RJA-LGF, 2013 WL
6490256, at *2-3 (W.D.N.Y. Sept. 26, 2013). There is, therefore, no reason to suspect
that granting leave to amend would result in refund claims over which the Court has
subject-matter jurisdiction. Leave to amend is therefore denied.
E. Sanctions warning
This is the third time the Plaintiff has sued the IRS in this Court. See Obot v. IRS,
12-cv-1053-RJA-LGF; Obot v. IRS, 90-cv-1299-JTE.

The Plaintiff’s second lawsuit

sought largely the same relief as this one, and it was dismissed for largely the same
reasons that this one is being dismissed. 3 See id. Docket No. 10. Federal courts have
limited resources, and the need to dismiss complaints raising meritless claims burdens
this (or any) Court’s ability to efficiently administer justice. 4
At present, the Court is not considering imposing a filing injunction against the
Plaintiff. The Plaintiff is advised, however, that, if he continues to file complaints against
the IRS that are similar to the one he filed in this case, the Court will strongly consider

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The Plaintiff’s first lawsuit against the IRS, 90-cv-1299-JTE, was ultimately dismissed as moot, although
the IRS in that case also moved to dismiss—as it does here—for lack of subject-matter jurisdiction. See
Obot v. IRS, 1991 WL 129800, at *1 (W.D.N.Y. June 30, 1991).
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In deciding that it is appropriate to issue a sanctions warning for future cases against the IRS, the Court
has considered the fact that the Defendant has brought a variety of lawsuits in this Court, all of which appear
to have been dismissed. See Emerald Int’l Holdings Ltd. v. Verizon, 16-CV-978-A; Obot v. Navient, 16-cv102-RJA; Obot v. Bailey, 13-cv-780-RJA; Obot v. Sallie Mae, 13-cv-656-RJA-HKS. See also Obot v.
Verizon Commcs., 16-CV-894-A, Docket No. 14 (granting motion to dismiss for lack of subject-matter
jurisdiction but granting leave to amend, even though “[i]t is difficult to see how a liberal reading of the
complaint in this case might establish subject-matter jurisdiction”).

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directing the Plaintiff to show cause why he should not be enjoined from filing similar
complaints in the future. See generally Safir v. U.S. Lines, Inc., 792 F.2d 19, 23-25 (2d
Cir. 1986); Moates v. Barkley, 147 F.3d 207, 209 (2d Cir. 1998).
CONCLUSION
For the reasons stated above, the Defendant’s motion to dismiss for lack of
subject-matter jurisdiction (Docket No. 6) is granted. The Clerk of Court shall take all
steps necessary to close this case.
SO ORDERED.

Dated: March 6, 2018
Buffalo, New York

__s/Richard J. Arcara___________
HONORABLE RICHARD J. ARCARA
UNITED STATES DISTRICT JUDGE

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