Lee v. Shulman
Filing
14
ORDER ADOPTING REPORT AND RECOMMENDATIONS DE 12 , Granting Defendant's motion to dismiss DE 7 , stricking the amended complaint and denying DE 13 plaintiff's motino to file a second amended complaint signed by Judge John T. Fowlkes, Jr. on 4/25/13. (Fowlkes, J.)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
DAVID RICHARD LEE,
Plaintiff,
)
)
)
)
)
)
)
)
)
)
)
v.
DOUGLAS H. SHULMAN,
Commissioner,
Internal Revenue Service,
Defendant.
Case No. 12-2529-JTF/dkv
ORDER ADOPTING REPORT AND RECOMMENDATION
Before
the
Court
is
the
Report
and
Recommendation
of
Magistrate Judge Diane K. Vescovo, DE [12], filed April 5, 2013,
recommending that the Court grant Defendant’s motion to dismiss,
DE [7], pursuant to Fed. Rule Civ. P. 12(b).
Plaintiff, David Richard Lee, proceeding pro se, filed this
action against IRS Commissioner Douglas Shulman seeking a refund
of
his
2004
federal
income
taxes
along
with
any
associated
penalties and interest fees. DE [1] The complaint was amended to
substitute
the
United
States
as
defendant
instead
of
Commissioner Shulman. DE [9] Plaintiff did not file a response
to defendant’s motion to dismiss.
Specifically,
the
Magistrate
Judge
recommends
that
Plaintiff’s amended complaint be stricken and Defendant’s motion
to
dismiss
failure
to
for
lack
state
a
of
subject
claim
be
matter
granted.
jurisdiction
The
report
and
for
recommends
dismissal of this matter under Fed. Rules Civ. P. 12(b)(1) and
12(b)(6)
because:
1)
the
United
States
is
immune
from
suit
unless it expressly waives its sovereign immunity which extends
to government officers and agencies; 2) the amended complaint
was untimely filed without written consent of the Defendant nor
with leave of court; 3) leave to amend would have been futile as
the claim would not have survived a motion to dismiss; and 4)
Plaintiff failed to timely file an administrative claim for the
tax refund. Objections to the Report and Recommendation have not
been filed and the time for filing such objections has expired
under Fed. R. Civ. P. 72(b)(2).
After a de novo review of the record and the Magistrate
Judge’s Report and Recommendation, the Court finds the Report
and Recommendation should be adopted in its entirety. As such,
the Court concludes the amended complaint should be stricken,
the
Defendant’s
accordingly,
motion
plaintiff’s
to
dismiss
motion
to
should
file
a
be
granted,
second
amended
complaint filed on April 19, 2013, DE [13], should be denied and
the case DISMISSED pursuant to Fed. Rule Civ. P. 12(b).
IT IS SO ORDERED this 25th day of April, 2013.
s/John T. Fowlkes, Jr.
JOHN T. FOWLKES, JR.
UNITED STATES DISTRICT JUDGE
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