USA v. Zaccardi et al

Filing 43

MEMORANDUM DECISION denying 36 Motion for Summary Judgment; granting 37 Motion to Strike; granting 40 Motion to Strike; denying 31 Motion to Dismiss. Signed by Judge Ted Stewart on 01/04/2012. (tls)

IN THE UNITED STATES COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION

UNITED STATES OF AMERICA,
Plaintiff,

MEMORANDUM DECISION AND
ORDER DENYING DEFENDANT’S
MOTION TO DISMISS AND
MOTION FOR SUMMARY
JUDGMENT AND GRANTING
PLAINTIFF’S MOTIONS TO STRIKE

vs.

PAUL B. ZACCARDI, et al.,

Case No. 2:11-CV-135 TS

Defendants.

This matter is before the Court on various motions and other documents filed by
Defendant Paul B. Zaccardi, as well as two Motions to Strike filed by the government. For the
reasons discussed below, the Court will deny Defendant’s Motions to Dismiss and for Summary
Judgment, grant Plaintiff’s Motions to Strike, and strike the various documents filed by
Defendant.

1

I. BACKGROUND
The government filed this action “pursuant to 26 U.S.C. §§ 7401, 7402, and 7403 at the
direction of the Attorney General of the United States and with the authorization of the Chief
Counsel of the Internal Revenue Service (‘IRS’), a delegate of the Secretary of the Treasury.”1
This action is “brought by the United States to reduce to judgment certain federal tax assessments
against defendant-taxpayer Paul B. Zaccardi. This action also seeks to set aside fraudulent
conveyances and foreclose upon a federal tax lien on taxpayer’s interest in his personal residence
held in nominee name.”2
Defendant filed an Answer to the Complaint on April 12, 2011. Defendant now moves to
dismiss Plaintiff’s Complaint and also seeks summary judgment. In addition, Defendant has
filed various documents, which Plaintiff seeks to strike.
II. DISCUSSION
A.

MOTION TO DISMISS
Defendant brings his Motion pursuant to Fed.R.Civ.P. 12(b)(6). Such a motion “must be

made before pleading if a responsive pleading is allowed.”3 As stated, Defendant filed an
Answer on April 12, 2011, and that Answer does not appear to assert that Plaintiff’s Complaint
fails to state a claim. However, as Plaintiff is proceeding pro se, the Court will construe his

1

Docket No. 2, ¶ 2.

2

Id. ¶ 1.

3

Fed.R.Civ.P. 12(b).
2

Motion as one being brought under Rule 12(c).4 Under Rule 12(c), the Court applies the same
standard as a motion under Rule 12(b)(6).5
Defendant’s Motion to Dismiss argues a number of rather confusing points. Defendant
first appears to argue that dismissal is appropriate because the IRS has failed to comply with the
provisions of the Fair Debt Collection Practices Act (“FDCPA”). This argument fails because
“federal taxes are not a debt, and the IRS is not a debt collector.”6 Therefore, the FDCPA does
not apply to this action.
Defendant next argues that dismissal is appropriate because the Complaint does not
comply with special rules for pleading maritime claims. The argument that admiralty law applies
to this action is one that has been frequently rejected by numerous courts.7 For substantially the
same reasons stated by these courts, the Court finds that Defendant’s argument on this point
provides no grounds for dismissal.
Defendant also argues that dismissal is appropriate because the government has failed to
respond to the affirmative defenses listed in his Answer. Apparently, Defendant believes that
Plaintiff should have filed a reply to his Answer. However, a reply to an answer is only allowed

4

See Fed.R.Civ.P. 12(h)(2)(B) (“Failure to state a claim upon which relief can be granted .
. . may be raised . . . by a motion under Rule 12(c).”).
5

Jacobsen v. Deseret Book Co., 287 F.3d 936, 941 n.2 (10th Cir. 2002).

6

Bandy v. United States, 2008 WL 1867991, at *8 (D. Kan. Apr. 24, 2008).

7

See United States v. Korman, 2008 WL 2512473, at *4 (S.D. Fla. Apr. 21, 2008) (citing

cases).
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if the Court orders one.8 The Court has not ordered Plaintiff to reply to Defendant’s Answer,
thus Plaintiff was under no obligation to file a reply and indeed could not file a reply without an
order from the Court. Therefore, dismissal is not appropriate on this ground.
Having found that none of the reasons set forth by Defendant warrants dismissal of this
action, the Court will deny Defendant’s Motion to Dismiss.
B.

MOTION FOR SUMMARY JUDGMENT
Defendant has filed a “Petition in the Nature of a Motion for Summary Judgment.”

Defendant provides no basis for his summary judgment motion, only referencing his previously
filed Motion to Dismiss. As set forth above, Defendant’s Motion to Dismiss will be denied.
Therefore, summary judgment is inappropriate. Further, Fed.R.Civ.P. 56(c) requires a party
moving for summary judgment to support that motion. Defendant has failed to provide anything
to the Court to indicate that summary judgment should be entered in his favor. Therefore,
Defendant’s Petition in the Nature of a Motion for Summary Judgment will be denied.
C.

MOTIONS TO STRIKE
Defendant has filed two documents entitled “Commercial Notice Appointment of

Fiduciary/Trustee.” In these documents, Defendant attempts to appoint the undersigned, as well
as the United States Attorney for the District of Utah, as a “public servant fiduciary/trustee.”
Defendant Plaintiff seeks to strike both documents.
Courts have described documents like the “Commercial Notice Appointment of
Fiduciary/Trustee” as “shopworn arguments characteristic of tax-protester rhetoric that has been

8

Fed.R.Civ.P. 7(a)(7).
4

universally rejected by this and other courts.”9 This characterization aptly applies to the
documents filed by Defendant. These documents are nonsensical and the Court will use its
inherent authority to strike them from the record.
III. CONCLUSION
It is therefore
ORDERED that Defendant’s Motion to Dismiss (Docket No. 31) is DENIED. It is
further
ORDERED that Defendant’s Motion for Summary Judgment (Docket No. 36) is
DENIED. It is further
ORDERED that Plaintiff’s Motions to Strike (Docket Nos. 37 and 40) are GRANTED.
The Court orders that Docket Nos. 35 and 38 be STRICKEN.
DATED January 4, 2012.
BY THE COURT:

_____________________________________
TED STEWART
United States District Judge

9

Stearman v. Comm’r of Internal Revenue, 436 F.3d 533, 537 (5th Cir. 2006).
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