Ellis et al v. Robinson et al

Filing 13

ORDER: Defendants' Motion to Dismiss Case for Lack of Jurisdiction 4 is granted; Plaintiffs' Motion to Strike 6 is denied; and Plaintiffs' Motion to Dismiss 7 is denied as moot. This action is dismissed. Signed on 9/9/09 by U.S. District Judge Michael R. Hogan. (sln)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON MARK T. ELLIS and SUSAN D. ELLIS, Plaintiffs, v. RON ROBINSON, INTERNAL REVENUE SERVICE, and UNITED STATES DEPARTMENT OF JUSTICE Defendants. Defendants filed a motion to dismiss for lack of subject matter jurisdiction, failure to state a claim, and insufficient service of process. Plaintiffs filed a motion to strike and a Defendants filed a response to Civ. No. 09-6067-HO ORDER

conditional motion to dismiss.

the conditional motion and argued that the United States is the only proper defendant. To the extent that plaintiffs' action is "with respect to federal taxes," the action is barred by the Declaratory Judgment

Act and the Anti-Injunction Act. 228, 230 (D. Or. 1983).

O'Brien v. Evans, 560 F. Supp.

In addition, plaintiffs fail to state a claim upon which relief can be granted. Plaintiffs cannot rely on the Fourteenth

Amendment Due Process Clause because defendants are not state actors. U.S. CONST. Amend. XIV, § 1. Plaintiffs do not cite any

action by the I.R.S. that violates the Fifth Amendment Due Process Clause. See United States v. Tanoue, 94 F.3d 1342, 1345Plaintiffs' due process claim fails.

6 (9th Cir. 1996).

Plaintiffs do not allege that the I.R.S. discriminated against them because they were residents of another state. Williams, 457 U.S. 55, 59 n.5 (1982). Zobel v.

Plaintiffs' claim under

the Privileges and Immunities Clause of Article IV, § 2 fails.

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2 - ORDER

Last, plaintiffs' "ultra vires" claim fails because they do not cite any unauthorized actions by defendants. Conclusion Based on the foregoing, defendants' motion to dismiss [#4] is granted; plaintiffs' motion to strike [#6] is denied; and plaintiffs' motion to dismiss [#7] is denied as moot. action is dismissed. SO ORDERED. DATED this 9t h day of September, 2009. This

s/ Michael R. Hogan United States District Judge

3 - ORDER