United States Of America v. Bogart et al

Filing 68

MEMORANDUM (Order to follow as separate docket entry)Signed by Honorable Matthew W. Brann on 7/9/14. (km)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
UNITED STATES OF AMERICA
Plaintiff,
v.
DUSTIN B. BOGART,
MARCY A. BOGART,
SOUTHERN COUNTRY RANCH,
Defendants.

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Civ. No. 4:12-CV-00347
(Judge Brann)

MEMORANDUM
July 9, 2014
I.

INTRODUCTION
Before the Court are multiple filings by Defendants Dustin B. Bogart and

Marcy A. Bogart, appearing pro se in the action. Construing their hundreds of
pages and exhibits liberally, as required, the Court discerns at least four assertions
meriting discussion: 1) a motion to compel discovery; 2) a demand for a jury trial;
3) challenges to subject matter and personal jurisdiction; and, 4) a request for a
recording or record of the conference call held among the Court and the Parties on
May 15, 2014. For the reasons discussed herein, the Defendants motions are
denied. The remainder of the Defendant’s filings are either incomprehensible,
blanket assertions without corresponding means for relief, arguments not meriting
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response, or arguments previously addressed by the Court.
The underlying action is this case concerns the government’s attempt to
obtain a declaration regarding the validity of federal tax liens and nominee liens
against Defendants’ property in Pennsylvania, to foreclose those liens, and to sell
the property in question. The Court has enumerated the pertinent background on
other occasions, and the Parties are familiar with the facts, therefore the Court
omits their recitation here. See Ct. Mem. Order, Aug. 14, 2013, ECF No. 35.
DISCUSSION
A.

Motion to Compel Denied

The Defendants’ filed a Motion to Compel Discovery pursuant to Federal
Rule of Civil Procedure 37. The precise nature of many of the Defendants’
requests are not readily discernable. The most comprehensive statement of the
purpose for the motion reads: “Bogart requests respectfully that this Federal Court
compel plaintiff to provide its district factual and jurisdictional grounds necessary
to carry its burden with a preponderance of evidence that must show that Bogart’s
facts and circumstances fell within the scope of a yet-to-be disclosed Federal act . .
. imposing a Federal income tax liability of payments Bogart received for the
services he performed within the United States of America (‘USA’).” Defs.’ Mot.
Compl. Disc. 2, May 29, 2014, ECF No. 60. The Defendants further allege in
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general terms that the Plaintiff has not provided discovery, is withholding relevant
evidence, and is destroying evidence. Nevertheless, where these assertions are
discernable, most lack specificity.
The Defendants primary discernable grievance stated with the necessary
specificity is that the IRS Form 4340s that the Plaintiff provided are either forged
or not valid.1 A Form 4340 “is not the actually summary record of [a tax]
assessment, but instead details the assessments made and the relevant date that a
Summary Record of Assessment was executed.” Tucker v. C.I.R. Serv., 506 Fed.
App’x 166, 168 (3d Cir. 2012) (internal quotations and citation omitted).
The “Summary Record of Assessment” is also known as the Form 23C or
the Form RACS 006. See id. Although the Plaintiff provided the Defendants with
the Form 4340, the Defendants seeks more information regarding the assessments
allegedly made against them, specifically the Form 23C.
The pertinent authority states that “[i]f a taxpayer requests a copy of this
record, he shall be furnished a copy of the pertinent parts of the assessment which
set forth the name of the taxpayer, the date of assessment, the character of the
liability assessed, the taxable period, if applicable, and the amounts assessed.” 26

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Any challenge to the validity of the IRS documents that has not been previously
addressed by this Court is better suited for a motion for summary judgment, not a motion to
compel discovery.
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C.F.R. § 301.6203–1; see also 26 U.S.C. § 6203 (“The assessment shall be made . .
. in accordance with rules or regulations prescribed by the Secretary.”). The Form
4340 satisfies those requirements. “[C]ourts have generally held that the IRS need
not provide a taxpayer with a copy of the actual Summary Record of Assessment to
fulfill its obligations to the taxpayer but may instead send a Form 4340, which
creates a presumption that the Summary Record of Assessment, whether on Form
23C or RACS Report 006, was validly executed and certified.” Tucker, 506 Fed.
App’x at 168; see also United States v. Zarra, 477 Fed. App’x 859, 860 n.2 (3d Cir.
2012) (“We reject the [defendants’] argument that the Government was required to
produce a summary record of assessment signed by an assessment officer in order
to prove the date of assessment.”).
Furthermore, the Plaintiff demonstrates that responding to the Defendants
requests on this issue would be unreasonably cumulative, not reasonably calculated
to lead to the discovery of new relevant information, and overly burdensome. See
Pl.’s Br. Opp’n Mot. Compel Disc. 4, June 26, 2014, ECF No. 67 [Pl.’s Br.].2
Providing the Form 23C would be cumulative and not reasonably calculated to lead
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Defendants also filed a Response intimating some confusion as to to the Court’s Order
granting Plaintiff’s Motion to Amend/Correct Scheduling Order to allow additional time for the
filing of its Brief in Opposition for good cause. See Defs.’ Resp., June 20, 2014, ECF No. 66.
The Court directs the Defendants to United States District Court for the Middle District of
Pennsylvania Local Rules 7.5, 7.6, 7.7, 7.8 for their edification regarding briefing schedules and
the opportunity to respond.
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to the discovery of new relevant information because Form 4340s already contain
the requisite information specific to the individual taxpayers. Forms 23C show the
total amount of tax assessed against all taxpayers by a particular IRS Service
Center on a particular date. See I.R.M. 35.9.2.1 (Aug. 11, 2004). Much of this
information is irrelevant to the Defendants and this particular matter. Moreover,
the Defendants have not specified the particular date(s) or Service Center(s) for
which they seek Form 23C, and requiring the Plaintiff to review every such Form
23C is overly burdensome.
To the extent the Defendants seek other unspecified information (of dubious
existence) to support their repeatedly asserted and perpetually unmeritorious tax
protester arguments previously addressed by this Court, those inquiries are not
relevant to this matter and are denied accordingly. In the action thus far, the
Plaintiff has provided Defendants hundreds of documents and responded to 165
requests for admissions, as well as over 80 combined interrogatories and requests
for production of documents. See Pl.’s Br., at 3. The Defendants have not pointed
to any piece of information with specificity that is either not already disclosed or is
relevant to the issues before the Court. Accordingly, the Defendants’ Motion to
Compel Discovery is denied.
B.

Demand for Jury Trial Denied
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Defendants filed their initial demand for a jury trial on May 2, 2014 (ECF
No. 51), and have continually resubmitted demands since. Plaintiff did not
demand a jury trial in this case.
The Seventh Amendment to the United States Constitution preserves the
right to a jury trial in civil cases.3 U.S. CONST. amend. VII; FED. R. CIV. P. 38(a).
While the Seventh Amendment preserves this right, “[n]o right is absolute.”
McDonald v. City of Chicago, III, 561 U.S. 742, 130 S. Ct. 3020, 3101 (2010).
Federal Rule of Civil Procedure 38 concerning the right to a jury trial reads,
regarding demand: “[o]n any issue triable of right by a jury, a party may demand a
jury trial by . . . serving the other parties with a written demand—which may be
included in a pleading—no later than 14 days after the last pleading.” FED. R. CIV.
P. 38(b). Rule 38 continues regarding waiver: “[a] party waives a jury trial unless
its demand is properly served and filed.” FED. R. CIV. P. 38(d). Furthermore, case
law supports the well established proposition that “[f]ailure to file a timely demand
results in waiver of the right.” Accord Comm’ns Maint., Inc. v. Motorola, Inc.,

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The full text of the Seventh Amendment reads:

In Suits at common law, where the value in controversy shall exceed twenty dollars, the
right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common
law.
U.S. CONST. amend. VII.
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761 F.2d 1202, 1208 (7th Cir. 1985); see also United States v. Moore, 340 U.S.
616, 621 (1951).
Federal Rule of Civil Procedure 39(b), however, provides courts discretion
to consider a later motion for a jury trial when no demand is made. In determining
whether to grant an untimely jury demand under Rule 39(b), courts governed by
the United States Court of Appeals for the Third Circuit should consider:
1) whether the issues are suitable for a jury; 2) whether granting the
motion would disrupt the schedule of the Court or the adverse party;
3) whether any prejudice would result to the adverse party; 4) how
long the party delayed in bringing the motion; and, 5) the reasons for
the failure to file a timely demand.
United States S.E.C. v. Infinity Grp. Co., 212 F.3d 180, 196 (3d Cir. 2000)
(internal quotations and citation omitted).
In the case sub judice the Defendants filed their answer on February 7, 2013
(ECF No. 30). This was the last pleading filed.4 The Defendants did not demand a
jury trial until May 2, 2014, a delay of almost fifteen (15) months from the close of

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Federal Rule of Civil Procedure 7 enumerates all filings properly considered pleadings,
which are:
(1) a complaint; (2) an answer to a complaint; (3) an answer to a counterclaim
designated as a counterclaim; (4) an answer to a crossclaim; (5) a third-party
complaint; (6) an answer to a third-party complaint; and (7) if the court orders
one, a reply to an answer.
FED. R. CIV. P. 7(a).
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the pleadings (ECF No. 51). Defendants offer nothing to excuse their excessive
tardiness other than ignorance. Given this lengthy delay, lack of a viable excuse,
substantial progress in the case and its current schedule, the balance of the factors
favors enforcing the Defendant’s waiver of a jury trial. See Infinity Grp. Co., 212
F.3d at 196. The Defendant’s demand for a jury trial, properly considered as a
Rule 39(b) motion, is denied.
C.

The Court Retains Jurisdiction

The Defendants continually assert that the Court does not exercise valid
jurisdiction in this case. The Court has previously addressed the subject matter
jurisdiction issue. See Ct. Mem., Nov. 5, 2013, ECF No. 43. Because subject
matter jurisdiction is of fundamental import, the Court reiterates that it exercises
valid jurisdiction pursuant to the express statutory provisions 26 U.S.C. §§
7402(a), 7403, and 28 U.S.C. §§ 1331, 1340, 1345, as well as a host of supporting
case law.
The Defendants also assert at this junction that the Court cannot exercise
personal jurisdiction over them. Federal Rule of Civil Procedure Rule 12(b)(2)
allows a party to assert a defense to lack of personal jurisdiction by motion. Rule
12(h) provides, however, that “[a] party waives any defense listed in Rule 12(b)(2)(5)” by omitting it from its initial Rule 12 motion or failing to raise the issue in a
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responsive pleading or amendment. FED. R. CIV. P. 12(h).
Furthermore, “because the requirement of personal jurisdiction represents
first of all an individual right, it can, like other such rights, be waived.” Ins. Corp.
of Ireland, Ltd., et al. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 703
(1982). “Because there ‘exists a strong policy to conserve judicial time and
resources,’ [the United States Court of Appeals for the Third Circuit has] held that
‘preliminary matters such as . . . personal jurisdiction . . . should be raised and
disposed of before the court considers the merits or quasi-merits of a controversy.”
Bel-Ray Co., Inc. v. Chemrite (Pty) Ltd., 181 F.3d 435, 443 (3d Cir. 1999)
(quoting Wyrough & Loser, Inc. v. Pelmore Labs., Inc., 376 F.2d 543, 547 (3d Cir.
1967)).
The Defendants filed an initial Rule 12 motion to dismiss, alleging only that
the Court lacked subject matter jurisdiction under Rule 12(b)(1). See Defs.’ Mot.
Dismiss, Aug. 2, 2012, ECF No. 11. The Defendants did not raise a personal
jurisdiction defense at that time, nor did the Defendants raise a personal
jurisdiction defense in an answer. See Defs.’ Answer, Feb. 7, 2013, ECF No. 30.
Accordingly, the Defendant waived any personal jurisdiction defense. See FED. R.
CIV. P. 12(h).
D.

Record of Conference Call Does Not Exist Beyond Docket
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The Court does not record its telephone status conference calls with parties
or invoke the services of a court reporter to transcribe the calls. The Court records
minutes of telephone status conferences, which are then included on the docket.
The information appearing on the record is the only information available with
respect to the telephone status conference.
No such recording is available and, consequently, the Defendants’ request is
denied.
E.

Miscellaneous Considerations

Throughout its numerous filings, the Defendants make various factual and
legal assertions that are largely incomprehensible. It appears the Defendants
submit general factual assertions with no designated purpose other than to attempt
to establish the claims as facts of record. The proper places for these assertions are
in dispositive motions, or to be established at trial by competent evidence if the
litigation reaches that stage.
III.

CONCLUSION
The Defendants’ Motion to Compel Discovery, demand for a jury trial, and

request for a record of a status conference call are all denied.

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An appropriate Order follows.

BY THE COURT:
s/ Matthew W. Brann
Matthew W. Brann
United States District Judge

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