Zigmont v. Jones

Filing 15

MEMORANDUM OPINION, REPORT AND RECOMMENDATION DENYING PLAINTIFFS MOTION FOR REMAND recommending that re 7 Plaintiff's Forthwith Motion For Remand And Motion For Sanctions Request For Emergency Hearing,be DENIED. Within 14 days after being serv ed with a copy of this Memorandum Opinion,Report and Recommendation, any party may file with the Clerk of Court written objections identifying those portions of the recommendation to which objection is made and the basis for such objection. Signed by Magistrate Judge John S. Kaull on 9/8/2011. (Copy counsel of record via CM/ECF, Pro Se Plaintiff via certified mail)(jmm) (Additional attachment(s) added on 9/8/2011: # 1 Certified Mail Return Receipt) (jmm).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
JAMES S. ZIGMONT,
Plaintiff,
v.

CIVIL ACTION NO. 1:11CV134

ANGELA JONES,
Defendant.
MEMORANDUM OPINION , REPORT AND RECOMMENDATION DENYING
PLAINTIFF’S MOTION FOR REMAND
James S. Zigmont [Zigmont] filed his “Petition To Release and Expunge The Record Of
Erroneous Tax Lien And Holds On Property” [complaint] in the “Court Of Common Pleas For
Harrison County West Virginia”1 [state court] on or about 1 August 2011. The United States, on
behalf of its agency, the Internal Revenue Service [IRS] filed its “Notice Of Removal” effectively
removing Zigmont’s civil action complaint from state court to this court on 18 August 2011 [DE2].
Zigmont filed “Plaintiffs’ [sic] Forthwith Motion For Remand And Motion For Sanctions Request
For Emergency Hearing” 24 August 2011 [DE 7]. By Corrected Order dated 6 September 2011[DE
14] the District Judge referred Zigmont’s Motion For Remand And Motion For Sanctions Request
For Emergency Hearing to the undersigned Magistrate Judge for appropriate disposition pursuant
to 28 U.S.C. §636 (b)(1)(A) and (B) and L.R.Civ.P. 7.02( c ).
Discussion
I.

Request For Emergency Hearing
This matter is not complex. It does not require the taking of evidence. All factual matters

required for consideration of the motion are adequately presented in the pleadings of record in this
1

There is no Court of Common Pleas For Harrison County West Virginia. Zigmont filed
his complaint in the Circuit Court of Harrison County, West Virginia wherein it was assigned
case no 11-P-97-2.

action. Accordingly the request for emergency hearing is DENIED.
II.

Removal
28 U.S.C. §1441(a) provides: “Except as otherwise expressly provided by Act of Congress,

any civil action brought in a State court of which the district courts of the United Sates have original
jurisdiction, may be removed by the defendant or the defendants, to the district court of the United
States for the district and division embracing the place where such action is pending. For purposes
of removal under this chapter, the citizenship of defendants sued under fictitious names shall be
disregarded.”
28 U.S.C. §1442 (a) provides: “A civil action or criminal prosecution commenced in a State
court against any of the following may be removed by them to the district court of the United States
for the district and division embracing the place wherein it is pending: (1) The United States or any
agency thereof or any officer (or any person acting under that officer) of the United States or of
any agency thereof, sued in an official or individual capacity for any act under color of such office
or on account of any right, title or authority claimed under any Act of Congress for the apprehension
or punishment of criminals or the collection of the revenue.” [emphasis added].
The allegations in Zigmont’s state court complaint establish this is a suit against Angela
Jones in her capacity as an agent of the IRS, an agency of the United States for actions she took in
aid of the collection of revenue. Essentially, Zigmont claims Angela Jones: caused “four erroneous
Tax Liens” to be filed “in the Prothonotary’s Office of the Harrison County Courthouse against
James Zigmont ...”[complaint, par 1]; “directly or indirectly levied monies from [Zigmont] ...”
[complaint, par 3]; and placed “‘holds’ on the personal account of [Zigmont] and upon a joint
account [Zigmont] had with his ailing 79 year old sister ...” [complaint, par 4].
The premises underlying Zigmont’s claims are: 1) that no “verified tax assessment followed

by the deficiency notice” were ever filed or produced and therefore, Angela Jones had no “authority
from her official position or any other jurisdiction” to file tax liens, levy monies, or place holds on
accounts in aid of collection of revenues and 2) because he was dismissed in a prior federal court
action, he must have a remedy someplace and that someplace must be in state court in an action
against Jones individually. Zigmont is incorrect on both counts.
Zigmont acknowledges in his complaint in this action that these complaints were raised
before the United States District Court for this district in a prior action. [complaint, par 7-8]. In that
case, Zigmont sued Jones in her official and individual capacities. That case [1:11CV22] was
dismissed for lack of subject matter jurisdiction. [DE 42 in 1:11CV22].
In the instant case Zigmont asserts the same claims against Jones. Notwithstanding
Zigmont’s contorted arguments that he is suing Jones in her individual capacity because allegedly
acted outside of her authority, his claims against Jones are still claims for acts she performed as part
of her official duties as an Internal Revenue Service employee. [See 26 U.S.C. §6321, 6323(a) and
6331].
This conclusion is consistent with that reached by Mr. Justice Clark in Dugan v. Rank, 372
U.S. 609, 610 83 S.Ct. 999, 1001 (1963) to wit: “the suit against the petitioning local officials of
the Reclamation Bureau is in fact against the United States and they must be dismissed therefrom.”
The Court reasoned:
The general rule is that a suit is against the sovereign if ‘the judgment sought would
expend itself on the public treasury or domain, or interfere with the public
administration,’ Land v. Dollar, 330 U.S. 731, 738, 67 S.Ct. 1009, 1012, 91 L.Ed.
1209 (1947), or if the effect of the judgment would be ‘to restrain the Government
from acting, or to compel it to act.’ Larson v. Domestic & Foreign Corp., supra, 337
U.S. at 704, 69 S.Ct. at 1468, 93 L.Ed. 1628; Ex parte New York, 256 U.S. 490, 502,
41 S.Ct. 588, 591, 65 L.Ed. 1057 (1921). The decree here enjoins the federal officials
from impounding, or diverting, or storing for diversion, or otherwise impeding or
obstructing the full natural flow of the San Joaquin River. * * *.' Transcript of

Record, Vol. III, p. 1021. As the Court of Appeals found, the Project ‘could not
operate without impairing, to some degree, the full natural flow of the river.’
Experience of over a decade along the stretch *621 of the San Joaquin involved here
indicates clearly that the impairment was most substantial-almost three-fourths of the
natural flow of the river. To require the full natural flow of the river to go through the
dam would force the abandonment of this portion of a project which has not only
been fully authorized by the Congress but paid for through its **1007 continuing
appropriations. Moreover, it would prevent the fulfillment of the contracts made by
the United States with the Water and Utility Districts, which are petitioning in No.
115. The Government would, indeed, be ‘stopped in its tracks * * *.’ Larson v.
Domestic & Foreign Corp., supra, 337 U.S. at 704, 69 S.Ct. at 1468, 93 L.Ed. 1628.

As noted by the United States, the reasoning in Dugan has been applied with respect to IRS
Employees sued as individuals. In Jones v. Bass, 343 F.Supp.2d 1066 (D.Wy. 2004), a case factually
similar to the instant case, the District Judge held that the “internal revenue service agent was acting
in his official capacity in presenting notice of levy to bank, and thus taxpayers’ suit against agent was
barred by United States’ sovereign immunity from suit, ....” Id. 1068. The Jones Plaintiffs filed a
Wyoming state court action against Fred Bass, an IRS employee, a bank and the banks attorney
claiming that the serving, accepting, advising to honor and honoring of a Notice of Levy (unpaid tax
levy) were in error and harmful to Plaintiffs. The IRS-United States removed the action in behalf
of Bass to federal court pursuant to the provisions of 28 U.S.C. §1442(a)(1). Jones Plaintiffs, like
Zigmont, objected to removal claiming the federal court lacked subject matter jurisdiction to hear
the case. The Court held: “Fred Bass has been sued by Plaintiffs in his official capacity as an
employee of the IRS. As such, the suit is essentially against the United States and therefore, barred
by sovereign immunity.”
Accordingly the undersigned finds the removal of Zigmont’s complaint from state court to
federal court proper under 28 U.S.C. §1442 (a)(1).
III.

Motion For Sanctions

Zigmont’s motion for sanctions is dependent on the success of his motion for remand. For
the reasons set forth herein, Zigmont’s motion for sanctions should be DENIED.
Recommended Decision
For the reasons stated herein, the undersigned respectfully RECOMMENDS that Plaintiffs’
Forthwith Motion For Remand And Motion For Sanctions Request For Emergency Hearing [DE 7]
be DENIED.
Any party may, within fourteen (14) days of this Memorandum Opinion, Report and
Recommendation, file with the Clerk of the Court written objections identifying the portions of the
Memorandum Opinion, Report and Recommendation to which objection is made, and the basis for
such objection. A copy of such objections should also be submitted to the Honorable Irene M.
Keeley, United States District Judge. Failure to timely file objections to the Memorandum Opinion,
Report and Recommendation set forth above will result in waiver of the right to appeal from a
judgment of this Court based upon such Memorandum Opinion, Report and Recommendation. 28
U.S.C. § 636(b)(1); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984), cert. denied, 467 U.S.
1208 (1984); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); Thomas v. Arn, 474 U.S. 140 (1985).
The Clerk of the Court is directed to a copy of this Memorandum Opinion, Report and
Recommendation to the pro se plaintiff, James S. Zigmont at his address of record and to provide
an electronic notice of entry of the same to counsel for the United States.
Dated: 8 September 2011

John S. Kaull
JOHN S. KAULL
UNITED STATES MAGISTRATE JUDGE