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Hattrup v. Internal Revenue Service

United States District Court, D. Kansas

June 29, 2018

SCOTT GREGORY HATTRUP, Plaintiff,
v.
INTERNAL REVENUE SERVICE, JULIA DENG A/K/A JULIA D. PALMER, and JOHN DOE, Defendants.

          MEMORANDUM AND ORDER

          DANIEL D. CRABTREE UNITED STATES DISTRICT JUDGE.

         Plaintiff Scott Gregory Hattrup[1] filed suit against the United States, [2] Julie Deng, and John Doe to obtain money damages, quiet title relief, and an injunction to extend the redemption period arising from the judicial sale of his former property. Doc. 1 at 1. Liberally construing his Complaint against the United States, Mr. Hattrup seeks: (1) money damages under (a) the Fifth and Fourteenth Amendments to the United States Constitution, and (b) 26 U.S.C. § 7433; (2) injunctive relief to exercise a right to redeem the property under 26 U.S.C. § 6337; and (3) quiet title relief under 28 U.S.C. § 2410. Id. at 1, 3-4 (Compl. ¶¶ 5, 20-22).

         The United States moves to dismiss. Doc. 13 at 1. Its Motion to Dismiss asks the court to dismiss plaintiff's claims (1)(a), (2), and (3) for lack of subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1), and to dismiss claim (1)(b) because it fails to state a claim for relief under Fed.R.Civ.P. 12(b)(6). Id. Each of plaintiff's claims suffers from one of these defects. So, the court dismisses the United States as a party to this lawsuit.

         I. Factual Background

         The following facts are taken in part from plaintiff's Complaint (Doc. 1). Because the current dismissal motion relies on Fed.R.Civ.P. 12(b)(1) and Fed.R.Civ.P. 12(b)(6), the courts accepts the pleaded facts as true and views them in the light most favorable to plaintiff. See Ramirez v. Dep't of Corr., 222 F.3d 1238, 1240 (10th Cir. 2000) (explaining that, on a motion to dismiss, the court must “accept the well-pleaded allegations of the complaint as true and construe them in the light most favorable to the plaintiff” (citation omitted)); see also Garling v. EPA, 849 F.3d 1289, 1293 (10th Cir. 2017) (first citing Ruiz v. McDonnell, 299 F.3d 1173, 1180 (10th Cir. 2002); then citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).

         On July 22, 2015, the United States filed a petition with this court seeking approval of judicial levy upon plaintiff's personal residence located at 11925 W. 92nd Terrace, Lenexa, Kansas 66125. See Doc. 1 at 2 (Compl. ¶ 6). The court held a hearing on the petition on February 8, 2016. On February 10, 2016, the court granted the United States's petition. In re Hattrup, No. 2:15-mc-00219-CM, 2016 LEXIS 184593 (D. Kan. Feb. 10, 2016);[3] see also Doc. 1 at 2 (Compl. ¶ 7). On June 13, 2017, plaintiff filed a “Motion to Reopen Redemption Period” in the judicial levy matter. See In re Hattrup, No. 2:15-mc-00219-CM, 2017 WL 3638212, at *1 (D. Kan. Aug. 3, 2017).[4] The United States opposed plaintiff's motion and on August 3, 2017, the court dismissed it. Id. at *1-2.

         II. Procedural Background

         The United States filed its Motion to Dismiss on February 2, 2018. Doc. 13 at 1. Plaintiff failed to file a timely response to that motion, and on April 5, 2018, the court issued a Notice and Order to Show Cause; it directed plaintiff to show cause in writing by April 20, 2018, why the court should not consider and rule on the Motion to Dismiss as uncontested. Doc. 16 at 1-2. On April 20, 2018, plaintiff filed a timely Response to the Order to Show Cause. Doc. 17. Plaintiff's Response explains that his ability to conduct legal research and draft legal documents for this lawsuit was limited by his professional responsibilities consuming “approximately 60 hours per week.” Id. at 1. Plaintiff further recites that his mother suffered a “cardiac incident” which instigated her extended stay in a hospital and has required plaintiff to “help his elderly parents during this difficult time.” Id. On April 20, 2018, plaintiff also filed a Response to the Motion to Dismiss. Doc. 18. The United States then filed a Reply. Doc. 19.

         “Responses to motions to dismiss . . . must be filed and served within 21 days.” D. Kan. Rule 6.1(d)(2). Under D. Kan. Rule 7.4(b), a party “who fails to file a responsive brief or memorandum within the time specified in D. Kan. Rule 6.1(d) waives the right to later file such brief or memorandum” unless there is a showing of excusable neglect. This rule also provides, “[i]f a responsive brief or memorandum is not filed within the D. Kan. Rule 6.1(d) time requirements, the court will consider and decide the motion as an uncontested motion. Ordinarily, the court will grant the motion without further notice.” D. Kan. Rule 7.4(b). Here, plaintiff failed to respond to the United States's Motion to Dismiss in a timely manner. See Doc. 16. Plaintiff's pro se status does not excuse him from complying with the court's rules or facing the consequences of noncompliance. Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994). Nonetheless, the court will consider plaintiff's Response to the Motion to Dismiss in light of the circumstances plaintiff recites in his Response (Doc. 17) to the Order to Show Cause (Doc. 16). The court now considers the Motion to Dismiss (Doc. 13) and the parties' related filings.

         III. Legal Standard

         A. Subject Matter Jurisdiction Under Rule 12(b)(1)

         The court must dismiss any case that it lacks subject matter jurisdiction to hear. Fed.R.Civ.P. 12(h)(3). The court must do so because “[a] court lacking jurisdiction cannot render judgment.” Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir. 1974) (citing Bradbury v. Dennis, 310 F.2d 73, 74 (10th Cir. 1962)). The party who invokes the court's jurisdiction bears the burden to establish that it exists. Id. Here, that party is plaintiff.

         Generally, a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1) takes one of two forms: a facial attack or a factual attack. Holt v. United States, 46 F.3d 1000, 1002 (10th Cir. 1995). A facial attack questions the sufficiency of the jurisdictional allegations in the complaint. Id. “In reviewing a facial attack on the complaint, a district court must accept the allegations in the complaint as true.” Id. (citing Ohio Nat'l Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir. 1990)). In contrast, a factual attack goes beyond the complaint's allegations and challenges “the facts upon which subject matter jurisdiction depends.” Id. at 1003.

         When presented with a factual attack, “a district court may not presume the truthfulness of the complaint's factual allegations.” Id. (citing Ohio Nat'l Life Ins. Co., 922 F.2d at 325). In this context, a district “court has wide discretion to allow affidavits, other documents, and [even conduct] a limited evidentiary hearing to resolve disputed jurisdictional facts under Rule 12(b)(1).” Id. (citations omitted). So, “[i]n a factual attack under Rule 12(b)(1), the court's reference to evidence outside the pleadings does not convert the motion into a motion for summary judgment, unless the jurisdictional question is intertwined with the merits of the case.” Shipley v. IRS, No. 04-cv-2573-JWL, 2005 WL 1334617, at *1 (D. Kan. June 6, 2005) (first citing Stuart v. Colo. Interstate Gas Co., 271 F.3d 1221, 1225 (10th Cir. 2001); then citing Holt, 46 F.3d at 1003; then citing Wheeler v. Hurdman, 825 F.2d 257, 260 (10th Cir. 1987)); see also Sizova v. Nat'l Inst. of Standards & Tech., 282 F.3d 1320, 1324-25 (10th Cir. 2002).

         B. Failure to State a Claim Under Rule 12(b)(6)

         Fed. R. Civ. P. 8(a)(2) provides that a complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Although this Rule “does not require ‘detailed factual allegations, '” it demands more than “[a] pleading that offers ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action'” which, as the Supreme Court explained, ...


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