Arismendy v. The United States et al

Filing 23

ORDER entered: Arismendys motion for contempt and for sanctions, (Docket Entry Nos. 18, 22), are denied.(Signed by Chief Judge Lee H Rosenthal) Parties notified.(leddins, 4)

United States District Court
Southern District of Texas

ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
KELLY ANN ARISMENDY,
Plaintiff,
v.
UNITED STATES COMMISSIONER OF
INTERNAL REVENUE, et al.,
Defendants.

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March 01, 2018
David J. Bradley, Clerk

CIVIL ACTION NO. H-17-938

ORDER DENYING MOTION FOR CONTEMPT
The plaintiff, Kelly Ann Arismendy, filed this suit to quash summons sent to JP Morgan
Chase by the Internal Revenue Service seeking information and documents related to Arismendy’s
income-tax liabilities. The court dismissed the case for lack of subject-matter jurisdiction, (Docket
Entry No. 13), but on a motion for reconsideration filed by the government conceding that
Arismendy had been entitled to notice of the summons, the court vacated its ruling denying the
petition to quash. (Docket Entry No. 16). The government voluntarily withdrew the original
summons and stated it would not seek enforcement and the court denied the petition to quash as
moot. (Id.).
Arismendy now asks the court to find IRS Agent Miguel Pineda in contempt of court for
issuing a new summons to JP Morgan Chase without giving the required notice to Arismendy.
(Docket Entry No. 18). Arismendy submits evidence that JP Morgan received a new subpoena in
January 2018 from the IRS for documents or information related to a matter involving Mike Palma.
(Docket Entry No. 18-1). She argues that by issuing the new summons, Pineda violated this court’s
order “to prevent JP Morgan Chase from turning over documents.” (Docket Entry No. 18 at 1).
Arismendy further accuses Pineda of “circumvent[ing] the order from this court prohibiting JP

Morgan Chase from providing information” by sending the summons to a different JP Morgan Chase
office. (Id. at 2).
The government responds that Arismendy’s motion is “groundless, baseless, and
misleading.” (Docket Entry No. 20 at 1). The government argues that Arismendy’s motion
incorrectly claims that the IRS is seeking to reissue or enforce the summons from July 2017 that it
had previously withdrawn. Instead, the IRS issued a new, different summons to JP Morgan Chase
for Arismendy’s records related to the income-tax liabilities of Mike Palma. The government argues
that Arismendy is not entitled to notice of the new summons under 26 U.S.C. § 7609(c)(2)(D).
Arismendy responded, arguing that the IRS filed three summonses with the court containing
her full name and Social Security number and issued three summonses without providing Arismendy
with the legally required notice. (Docket Entry No. 21). Arismendy argues that the IRS has failed
to show that any tax assessment has been made against her or that she is the transferee of a related
taxpayer with an assessed liability. Arismendy filed a second response requesting the court to redact
her personal information and asking the court to impose sanctions. (Docket Entry No. 22).
“Civil contempt can serve two purposes, either coercing compliance with an order or
compensat[ing] a party who has suffered unnecessary injuries or costs because of contemptuous
conduct.” In re Bradley, 588 F.3d 254, 263 (5th Cir. 2009) (citations omitted) (alteration in
original). Civil contempt requires “(1) that a court order was in effect, and (2) that the order required
certain conduct by the respondent, and (3) that the respondent failed to comply with the court’s
order.” Bradley, 588 F.3d at 264. Arismendy misstates the outcome of her prior petition to quash
the summons. Contrary to her assertions, no court order was in effect. The court initially denied
Arismendy’s petition to quash for lack of subject matter jurisdiction and later denied the petition as
moot when the government voluntarily withdrew the February 2017 summons. The court never, as

Arismendy asserts, prohibited JP Morgan Chase from turning over documents or information. None
of Agent Pineda or the IRS’s actions could violate or circumvent an order that did not exist. There
is no basis for the court to find Agent Pineda in contempt.
The same is true for Arismendy’s requests for sanctions against the government for filing
public documents without redacting her personal identifying information. Federal Rule of Civil
Procedure 5.2 prohibits filing documents containing an individual’s full Social Security number.
Although the government clearly violated Rule 5.2 when it failed to redact or seal the documents
containing Arismendy’s Social Security number, the court declines to impose sanctions. The
documents were promptly sealed and the violations remedied. That does not diminish the
seriousness of the government’s irresponsible actions. The government should be well aware of its
duty to redact personal identifying information in its filings and further violations of Rule 5.2 may
result in sanctions.
Arismendy’s motion for contempt and for sanctions, (Docket Entry Nos. 18, 22), are denied.
SIGNED on March 1, 2018, at Houston, Texas.
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Lee H. Rosenthal
Chief United States District Judge