Allred et al v. Oklahoma Tax Commission et al

Filing 13

ORDER granting 9 Motion to Dismiss. Plaintiff shall show cause within 14 days why her action against the Oklahoma Tax Commission should not be dismissed. Signed by Honorable Timothy D. DeGiusti on 4/6/2018. (mb)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
DICK HAMES, deceased, by and through
personal representative VICKI ALLRED,
Plaintiff,
v.
OKLAHOMA TAX COMMISSION and
INTERNAL REVENUE SERVICE,
Defendants.

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Case No. CIV-17-900-D

ORDER
Before the Court is the United States’ Motion to Dismiss [Doc. No. 9], filed
pursuant to Fed. R. Civ. P. 12(b)(1) and (b)(5). Plaintiff has responded in opposition to
the Motion, which is fully briefed.1
Plaintiff commenced this action by filing a “Complaint Seeking Disbursement of
Funds” [Doc. No. 1], which also seeks “to resolve the issue of any outstanding liens or
interests.” Plaintiff is identified as “Dick Hames, deceased,” but the action is brought by
a personal representative of the decedent’s estate, Vicki Allred, who was appointed in a
pending probate case in Grady County, Oklahoma. The Complaint alleges that the only
remaining potential creditors of Mr. Hames’ estate are Defendants Oklahoma Tax
Commisison (“OTC”) and Internal Revenue Service (“IRS”), that they were given notice
of the probate proceeding in October 2016, that neither made any filing in the probate case,

1

The time for filing a reply brief has expired. See LCvR7.1(g).

and that “out of an abundance of caution,” Plaintiff brings this action to obtain an order
authorizing Plaintiff to distribute the remaining proceeds of a life insurance policy. See
Compl. ¶ 7. The Complaint contains no allegations regarding subject matter jurisdiction;
it neither cites any jurisdictional statute nor states any basis for an exercise of federal
jurisdiction.
The Complaint was filed August 23, 2017. Plaintiff first obtained the issuance of
a summons for the IRS on November 14, 2017, and served the United States Attorney for
this judicial district. The Court issued its Order to Show Cause pursuant to Fed. R. Civ.
P. 4(m) on November 29, 2017, and based on Plaintiff’s response, extended the deadline
for service to December 21, 2017. Plaintiff subsequently filed proof of service of the IRS
by mail at its Oklahoma City office on December 20, 2017. To date, Plaintiff has not
provided proof of mailing copies of the summons and the Complaint to the United States
Attorney General by certified or registered mail, as required by Fed. R. Civ. P. 4(i)(1)(B).
The United States moves for dismissal of the action against it because Plaintiff has
failed to accomplish service of process as required by Fed. R. Civ. P. 4(i) and has failed to
allege any basis for suing the United States that would provide a waiver of sovereign
immunity.2

The United States recognizes that under certain circumstances, it may be

named as a party in a civil action regarding “property on which the United States has or
claims a . . . lien.” See 28 U.S.C. § 2410(a). However, Plaintiff’s Complaint lacks the

2

The United States has appeared in place of the IRS, which “is not an entity capable of
being sued.” Abell v. Sothen, 214 F. App’x 743, 750-51 (10th Cir. 2007) (unpublished). See
Def.’s Mot. Dismiss at 3 n.3.

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necessary information for a pleading in such an action. See id. § 2410(b). The United
States also notes the sparse allegations of the Complaint do not permit a determination
whether the subject property is within the jurisdiction of the probate court and so protected
by the “probate exception” to federal jurisdiction. See Def.’s Mot. Dismiss at 3 n.2.
Plaintiff makes no effective response to the United States’ grounds for dismissal.
Plaintiff ignores the requirement of Rule 4(i)(B), arguing only that the IRS and the United
States Attorney were properly served. Regarding jurisdiction and sovereign immunity,
Plaintiff asserts only that the omission of “specific itemization of the tax liens in question,”
as required by § 2410(b), “could be corrected by amendment of the Complaint.” See Pl.’s
Resp. Br. [Doc. No. 10] at 2.

Although Plaintiff argues that “the deficiency is easily

correctible” and “amendment should be allowed” (id.), Plaintiff has not filed an amended
pleading. Nor does Plaintiff identify a basis of federal subject matter jurisdiction.
Upon consideration of Plaintiff’s response to the United States’ Motion under the
existing record, the Court finds that the action against the United States must be dismissed
for lack of jurisdiction. Plaintiff bears the burden to establish subject matter jurisdiction
and, as to the United States, its consent to suit or other specific waiver of sovereign
immunity. See Rivera v. Internal Revenue Serv., 708 F. App’x 508, 510-11 (10th Cir.
2017) (unpublished) 3 (quoting United States v. Mitchell, 463 U.S. 206, 212 (1983);
Fostvedt v. United States, 978 F.2d 1201, 1203 (10th Cir. 1992)); see also United States ex
rel. Stone v. Rockwell Int'l Corp., 282 F.3d 787, 797-98 (10th Cir. 2002) (plaintiff has “the

3

Unpublished opinions cited pursuant to Fed. R. App. P. 32.1(a) and 10th Cir. R. 32.1(A).

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burden of alleging the facts essential to show jurisdiction”).

Plaintiff’s Complaint is

clearly deficient to allege a basis of jurisdiction for an action against the United States.
Plaintiff concedes this fact, but has made no effort to cure this fundamental defect in her
case. Plaintiff also presents no reason why she has failed to perfect service on the United
States, which she was ordered to complete more than three months ago.

For these

reasons, the Court finds that the United States’ Motion should be granted.
Further, the Court questions whether the same jurisdictional issues raised by the
United States may apply equally to Plaintiff’s suit against the OTC. 4

A state enjoys

Eleventh Amendment immunity from suit in federal court, regardless whether a plaintiff
seeks monetary relief. See In re Chandler, 251 B.R. 872, 875 (B.A.P. 10th Cir. 2000).
“There is no Oklahoma statute or constitutional provision waiving the OTC’s sovereign
immunity.” Id. at 878.
IT IS THEREFORE ORDERED that the United States’ Motion to Dismiss [Doc.
No. 9] is GRANTED.

Plaintiff’s action against the Internal Revenue Service is

DISMISSED without prejudice.5

4

As a court of limited jurisdiction, this Court has “an independent obligation to determine
whether subject matter jurisdiction exists” and may raise the issue sua sponte at any time. 1mage
Software, Inc. v. Reynolds & Reynolds Co., 459 F.3d 1044, 1048 (10th Cir. 2006); see Arbaugh v.
Y&H Corp., 546 U.S. 500, 514 (2006) (federal courts “have an independent obligation to determine
whether subject matter jurisdiction exists, even in the absence of a challenge from any party”).
5

Because jurisdiction is lacking, the dismissal must be without prejudice to refiling.
Brereton v. Bountiful City Corp., 434 F.3d 1213, 1218 (10th Cir. 2006).

4

See

IT IS FURTHER ORDERED that Plaintiff shall show cause within 14 days from
the date of this Order why her action against the Oklahoma Tax Commission should not be
dismissed for lack of jurisdiction.
IT IS SO ORDERED this 6th day of April, 2018.

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