EPCON COMMUNITIES CAROLINAS, LLC et al v. TILLEY, et al
Filing
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MEMORANDUM OPINION AND ORDER signed by MAG/JUDGE JOI ELIZABETH PEAKE on 5/1/2012, that Defendants Thomas Tilley, Iris Tilley, and Melba George are given 21 days from the entry of this Order, to and including May 22, 2012, to file an Answer, Mo tion to Dismiss, or other responsive pleading with respect to Plaintiffs' Amended Complaint. Any filing must be clearly labeled and must be filed in compliance with the Federal Rules of Civil Procedure and the Local Rules of this Court. FURTHER, that the Clerk is directed to set this case for an Initial Pretrial Conference on Thursday, May 24, 2012 at 9:30 a.m.(Daniel, J)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
EPCON COMMUNITIES CAROLINAS, LLC,
and EPCON FARRINGTON LLC,
Plaintiffs,
v.
IRIS M. TILLEY, individually and as Trustee;
THOMAS E. TILLEY, individually and as Trustee;
MELBA GEORGE, individually and as Trustee;
BARBARA WRIGHT, individually and as Trustee;
and UNITED STATES OF AMERICA,
Defendants,
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1:11CV643
MEMORANDUM OPINION AND ORDER OF
UNITED STATES MAGISTRATE JUDGE
This is an action by Plaintiffs Epcon Communities Carolinas, LLC, and Epcon
Farrington, LLC (“Plaintiffs”) seeking to quiet title to property that Plaintiffs purchased from
certain trusts affiliated with Defendants Thomas Tilley and Iris Tilley (“the Tilleys”). The Tilleys
are the subject of a federal tax dispute, and the Internal Revenue Service (“IRS”) has filed
Notices of Federal Tax Lien relating to the Tilleys and the trusts from whom Plaintiffs acquired
the property. Plaintiffs seek a determination that the lien claimed by the IRS, if valid, would
apply to the proceeds of the trusts’ sale of the property and not to the property itself.
Plaintiffs filed their original Complaint in state court, naming as Defendants the Tilleys;
the United States of America; and Barbara Wright and Melba George, who were associated with
the various trusts. The case was removed to this Court by the Defendant United States of
America pursuant to 28 U.S.C. § 1442, which allows for removal of a civil action commenced
in state court against the United States or any agency thereof, and pursuant to 28 U.S.C. § 1444,
which allows removal of actions seeking to quiet title to property on which the United States has
a lien. The United States subsequently filed an Answer. The Tilleys filed a pro se “Response”
[Doc. #16] that may have been an attempt to file either a Motion to Dismiss or an Answer.
Shortly after the Tilleys filed their “Responses,” Plaintiffs filed an Amendment to Complaint
[Doc. #18]. The United States filed an Amended Answer and Counterclaim [Doc. #21]. The
Tilleys thereafter filed another “Response” [Doc. #22], challenging the authority of the United
States Government and the validity of the United States Constitution. Defendant Barbara
Wright subsequently filed an Answer and Crossclaim. Defendant Melba George has not yet filed
any Answer or other response, although she previously requested an extension of time to file
an Answer as to the original Complaint.
In reviewing the docket in this case, the Court notes that to the extent that the Tilleys’
original “Response” was docketed as a “Motion to Dismiss,” the filing of an Amended
Complaint mooted any motion to dismiss as to the original Complaint, and the Amended
Complaint is now the operative pleading. See Young v. City of Mount Ranier, 238 F.3d 567, 572
(4th Cir. 2001). Moreover, it is unclear whether the Tilleys’ “Responses” were an attempt to
file an Answer or a Motion to Dismiss. Therefore, the Tilleys will be given 21 days following
the entry of this Order to file an Answer or Motion to Dismiss, or otherwise respond to the
Amended Complaint. If the filing is intended as a Motion to Dismiss, it should clearly be
labeled as such. Any filing must comply with the Federal Rules of Civil Procedure and the Local
Rules of this Court. Likewise, Defendant Melba George is given 21 days following the entry of
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this Order to file an Answer or other responsive pleading in accordance with the Federal Rules
of Civil Procedure and Local Rules of this Court.
Finally, having reviewed the various filings in this matter, the Court concludes that this
case should be set for an Initial Pretrial Conference pursuant to Federal Rule of Civil Procedure
16, in order to address and manage the course of these proceedings and to move this matter
forward. Therefore, this case will be set for an Initial Pretrial Conference on May 24, 2012 at
9:30 a.m. All parties must file a report pursuant to Federal Rule of Civil Procedure 26(f), either
jointly or individually, in accord with the Local Rules of this Court.
IT IS THEREFORE ORDERED that Defendants Thomas Tilley, Iris Tilley, and Melba
George are given 21 days from the entry of this Order, to and including May 22, 2012, to file an
Answer, Motion to Dismiss, or other responsive pleading with respect to Plaintiffs’ Amended
Complaint. Any filing must be clearly labeled and must be filed in compliance with the Federal
Rules of Civil Procedure and the Local Rules of this Court.
IT IS FURTHER ORDERED that the Clerk is directed to set this case for an Initial
Pretrial Conference on Thursday, May 24, 2012 at 9:30 a.m.
This, the 1st day of May, 2012.
/s/ Joi Elizabeth Peake
United States Magistrate Judge
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