1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ROBERT ERIC HOLCOMB, Case No.: 19cv1482-LAB
12 Plaintiff, ORDER DEEMING PLAINTIFF’S 13 v. RESPONSE STRICKEN IN PART; AND 14 INTERNAL REVENUE SERVICE,
15 Defendant. ORDER OF DISMISSAL 16 17 Background 18 After Plaintiff Robert Holcomb filed his motion to quash a summons served 19 on Wells Fargo Bank by the I.R.S., the Court issued several orders to show cause 20 in an effort to determine whether there was more than one Plaintiff, and what he 21 or they were asking for, as well as to confirm its jurisdiction. After Holcomb 22 responded to the first order, it became clear he was the only Plaintiff who was 23 properly before the Court. Although the initiating pleading suggested that Brother’s 24 Keeper Ministry might also be a Plaintiff, the Ministry could not proceed either pro 25 se or represented by a non-lawyer such as Holcomb. It also appeared likely the 26 Court lacked jurisdiction. 27 The Court’s next orders focused on jurisdiction. See Chapman v. Pier 1 28 Imports (U.S.) Inc., 631 F.3d 939, 954 (9th Cir. 2011) (en banc) (court must raise 1 jurisdictional issues such as standing, even if the parties do not). Holcomb was 2 cautioned that he was required to establish that the Court had jurisdiction to hear 3 his claims, and that until he did so, the Court was presumed to lack it. See 4 Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). He was 5 also cautioned that if he failed to establish jurisdiction, the action would be 6 dismissed. After his response to the first order proved inadequate, the Court on 7 September 23 ordered him specifically to show that he had complied with the 8 procedural requirements of 26 U.S.C. § 7609(b). (Docket no. 8.) Fully compliance 9 with these requirements is jurisdictional. Ponsford v. United States, 771 F.2d 1305, 10 1309 (9th Cir. 1985). 11 Striking Arguments 12 The Court’s September 23 order required Holcomb to file a declaration 13 complying with 28 U.S.C. 1746, addressing four issues. (Docket no. 9.) The Court 14 ordered him not to include any legal arguments or other material—particularly 15 requests for reconsideration—and cautioned him that if he attempted to do so, the 16 declaration may be rejected for filing. (Id. at 4:19–22.) 17 Holcomb has now filed a document including several pages of legal 18 arguments taking issue with the Court’s earlier rulings, and his declaration. Under 19 Fed. R. Civ. P. 12(f)(1), the Court may sua sponte strike from a pleading “any 20 redundant, immaterial, impertinent, or scandalous matter.” Holcomb’s legal 21 arguments, beginning just below the caption on page 1 of his response and 22 continuing through page 4, just above the subheading “Court Requested 23 Declaration” are impertinent and improper for any number of reasons. They are 24 legally frivolous, they violate Fed. R. Civ. P. 11(b), and they include unauthorized 25 requests for reconsideration in violation of both the Court’s order and the 26 Chambers standing order. And of course, he was ordered not to include them here. 27 These arguments are DEEMED STRICKEN and the Court will not address them. 28 / / / 1 Jurisdiction 2 The Court’s September 23 order required Holcomb’s declaration to state 3 what date he first knew the I.R.S. had sent the summons to Wells Fargo, and the 4 date he first received a copy of it. The order also required him to specify what steps 5 he took to comply with the notice requirements of 26 U.S.C. § 7609(b)(2)(B). That 6 order pointed out that a copy of his petition had to have been mailed by registered 7 or certified mail to both Wells Fargo and the I.R.S. (Docket no. 8 at 4:15–17.) He 8 was also ordered to attach to his declaration a copy of the receipts showing his 9 compliance with these requirements. (Id. at 4:18–19.) 10 It is uncertain whether, or when the I.R.S. gave Holcomb notice of the 11 summons as required under 26 U.S.C. § 7609(a)(2). Bearing in mind that Holcomb 12 may not have a “last known address,” the service date may be the date the 13 summons was mailed to Wells Fargo, see id., which must have been some time 14 before July 15, the date Wells Fargo sent Holcomb a letter about the summons. In 15 that case, the motion would be untimely and the Court would lack jurisdiction for 16 that reason. 17 But even assuming the I.R.S. failed to follow the notification procedures set 18 forth in 26 U.S.C. § 7609(a)(2), the twenty-day clock for him to file his motion to 19 quash does not stop indefinitely. See Kalra v. United States, 2013 WL 1749385, 20 at *3 (N.D. Il., Apr. 23, 2013) (citing Sylvestre v. United States, 978 F.2d 25, 27– 21 28 (1st Cir. 1992); Cook v. United States, 104 F.3d 886, 890 (6th Cir. 1997)) 22 (holding that I.R.S.’s failure to follow notification procedures under 26 U.S.C. § 23 7609(a)(2) can be excused where movant was not prejudiced). As soon as 24 Holcomb received actual notice of the summons, he was no longer prejudiced by 25 any possible defect in the I.R.S.’s notification procedures. See Kalra at *4. 26 Holcomb’s reply shows that he knew on July 20, 2019. that Wells Fargo had 27 received the I.R.S. summons. He therefore had at most 20 days from that date to 28 both file his motion to quash and to serve it as required under 26 U.S.C. § 7609(b). 1 Although the government’s failure to comply with notice requirements under 2 26 U.S.C. § 7609 may be excused, the rule does not work in reverse to excuse a 3 movant’s failure to comply. Because sovereign immunity is at stake, movants must 4 strictly comply with the requirements of 26 U.S.C. § 7609(a)(2). Mollison v. United 5 States, 568 F.3d 1073, 1075 (9th Cir. 2009). Although Holcomb was ordered to 6 show that he has complied with these requirements, he failed to do so. 7 Holcomb’s declaration, along with the attached receipts, shows only that a 8 copy of his motion was mailed to the I.R.S. by Priority mail, not certified or 9 registered mail. See Env’tl Law & Pol’y Ctr. v. U.S. Envir. Agy., 349 F. Supp. 3d 10 703, 713 n.6 (N.D. Oh. 2018) (pointing out that service by priority mail was not the 11 same as service by certified or registered mail); Shupe v. Gen. Servs. Admin., 12 2017 WL 6209142, at *2–3 (D. Ariz., Apr.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ROBERT ERIC HOLCOMB, Case No.: 19cv1482-LAB
12 Plaintiff, ORDER DEEMING PLAINTIFF’S 13 v. RESPONSE STRICKEN IN PART; AND 14 INTERNAL REVENUE SERVICE,
15 Defendant. ORDER OF DISMISSAL 16 17 Background 18 After Plaintiff Robert Holcomb filed his motion to quash a summons served 19 on Wells Fargo Bank by the I.R.S., the Court issued several orders to show cause 20 in an effort to determine whether there was more than one Plaintiff, and what he 21 or they were asking for, as well as to confirm its jurisdiction. After Holcomb 22 responded to the first order, it became clear he was the only Plaintiff who was 23 properly before the Court. Although the initiating pleading suggested that Brother’s 24 Keeper Ministry might also be a Plaintiff, the Ministry could not proceed either pro 25 se or represented by a non-lawyer such as Holcomb. It also appeared likely the 26 Court lacked jurisdiction. 27 The Court’s next orders focused on jurisdiction. See Chapman v. Pier 1 28 Imports (U.S.) Inc., 631 F.3d 939, 954 (9th Cir. 2011) (en banc) (court must raise 1 jurisdictional issues such as standing, even if the parties do not). Holcomb was 2 cautioned that he was required to establish that the Court had jurisdiction to hear 3 his claims, and that until he did so, the Court was presumed to lack it. See 4 Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). He was 5 also cautioned that if he failed to establish jurisdiction, the action would be 6 dismissed. After his response to the first order proved inadequate, the Court on 7 September 23 ordered him specifically to show that he had complied with the 8 procedural requirements of 26 U.S.C. § 7609(b). (Docket no. 8.) Fully compliance 9 with these requirements is jurisdictional. Ponsford v. United States, 771 F.2d 1305, 10 1309 (9th Cir. 1985). 11 Striking Arguments 12 The Court’s September 23 order required Holcomb to file a declaration 13 complying with 28 U.S.C. 1746, addressing four issues. (Docket no. 9.) The Court 14 ordered him not to include any legal arguments or other material—particularly 15 requests for reconsideration—and cautioned him that if he attempted to do so, the 16 declaration may be rejected for filing. (Id. at 4:19–22.) 17 Holcomb has now filed a document including several pages of legal 18 arguments taking issue with the Court’s earlier rulings, and his declaration. Under 19 Fed. R. Civ. P. 12(f)(1), the Court may sua sponte strike from a pleading “any 20 redundant, immaterial, impertinent, or scandalous matter.” Holcomb’s legal 21 arguments, beginning just below the caption on page 1 of his response and 22 continuing through page 4, just above the subheading “Court Requested 23 Declaration” are impertinent and improper for any number of reasons. They are 24 legally frivolous, they violate Fed. R. Civ. P. 11(b), and they include unauthorized 25 requests for reconsideration in violation of both the Court’s order and the 26 Chambers standing order. And of course, he was ordered not to include them here. 27 These arguments are DEEMED STRICKEN and the Court will not address them. 28 / / / 1 Jurisdiction 2 The Court’s September 23 order required Holcomb’s declaration to state 3 what date he first knew the I.R.S. had sent the summons to Wells Fargo, and the 4 date he first received a copy of it. The order also required him to specify what steps 5 he took to comply with the notice requirements of 26 U.S.C. § 7609(b)(2)(B). That 6 order pointed out that a copy of his petition had to have been mailed by registered 7 or certified mail to both Wells Fargo and the I.R.S. (Docket no. 8 at 4:15–17.) He 8 was also ordered to attach to his declaration a copy of the receipts showing his 9 compliance with these requirements. (Id. at 4:18–19.) 10 It is uncertain whether, or when the I.R.S. gave Holcomb notice of the 11 summons as required under 26 U.S.C. § 7609(a)(2). Bearing in mind that Holcomb 12 may not have a “last known address,” the service date may be the date the 13 summons was mailed to Wells Fargo, see id., which must have been some time 14 before July 15, the date Wells Fargo sent Holcomb a letter about the summons. In 15 that case, the motion would be untimely and the Court would lack jurisdiction for 16 that reason. 17 But even assuming the I.R.S. failed to follow the notification procedures set 18 forth in 26 U.S.C. § 7609(a)(2), the twenty-day clock for him to file his motion to 19 quash does not stop indefinitely. See Kalra v. United States, 2013 WL 1749385, 20 at *3 (N.D. Il., Apr. 23, 2013) (citing Sylvestre v. United States, 978 F.2d 25, 27– 21 28 (1st Cir. 1992); Cook v. United States, 104 F.3d 886, 890 (6th Cir. 1997)) 22 (holding that I.R.S.’s failure to follow notification procedures under 26 U.S.C. § 23 7609(a)(2) can be excused where movant was not prejudiced). As soon as 24 Holcomb received actual notice of the summons, he was no longer prejudiced by 25 any possible defect in the I.R.S.’s notification procedures. See Kalra at *4. 26 Holcomb’s reply shows that he knew on July 20, 2019. that Wells Fargo had 27 received the I.R.S. summons. He therefore had at most 20 days from that date to 28 both file his motion to quash and to serve it as required under 26 U.S.C. § 7609(b). 1 Although the government’s failure to comply with notice requirements under 2 26 U.S.C. § 7609 may be excused, the rule does not work in reverse to excuse a 3 movant’s failure to comply. Because sovereign immunity is at stake, movants must 4 strictly comply with the requirements of 26 U.S.C. § 7609(a)(2). Mollison v. United 5 States, 568 F.3d 1073, 1075 (9th Cir. 2009). Although Holcomb was ordered to 6 show that he has complied with these requirements, he failed to do so. 7 Holcomb’s declaration, along with the attached receipts, shows only that a 8 copy of his motion was mailed to the I.R.S. by Priority mail, not certified or 9 registered mail. See Env’tl Law & Pol’y Ctr. v. U.S. Envir. Agy., 349 F. Supp. 3d 10 703, 713 n.6 (N.D. Oh. 2018) (pointing out that service by priority mail was not the 11 same as service by certified or registered mail); Shupe v. Gen. Servs. Admin., 12 2017 WL 6209142, at *2–3 (D. Ariz., Apr. 25, 2017) (finding that pro se plaintiff’s 13 use of priority mail rather than certified or registered mail did not satisfy service 14 requirement). Although priority mail may also be sent as certified mail, the two are 15 not the same. See Ming Kuo Yang v. City of Wyoming, Mich., 31 F. Supp. 3d 925, 16 932 n.6 (W.D. Mich., 2014). Certified mail is ordinarily documented by a green 17 mailing receipt, which Holcomb has not attached. 18 Furthermore, Holcomb did not mail Wells Fargo a copy at all. Instead, he 19 followed Wells Fargo’s instructions in its letter to someone else, and merely faxed 20 the bank a copy. Even if Wells Fargo’s request for fax notice could excuse strict 21 compliance with § 7609(a)(2)—which they cannot—Wells Fargo did not purport to 22 instruct Holcomb on how to file and give notice of a motion to quash. Its letter 23 requested immediate notice that a motion to quash had been filed, so that it would 24 know how to proceed. Wells Fargo had previously disclaimed any suggestion that 25 it was giving or could give legal advice or assistance: 26 / / / 27 / / / 28 / / / 1 If you'd like to take any action related to this legal order [the summons], 5 we recommend you contact an advisor of your choice, such as an attorney, for guidance as soon as possible; Wells Fargo cannot advise 3 you in this matter. 4 (Docket no. 1 at 7 (Wells Fargo letter dated July 15).) 5 Holcomb’s failure to mail a copy of his motion to Wells Fargo by registered 6 certified mail means the Court lacks jurisdiction, and the motion must be 7 ||dismissed. See Ramirez v. United States, 604 Fed. Appx. 575, 576 (9"" Cir. 2015). 8 Furthermore, because the 20-day window has already passed, he cannot correct 9 || this defect. 10 || Conclusion and Order 11 The Court lacks jurisdiction to grant the relief Holcomb seeks. The motion to 12 ||quash is DISMISSED WITHOUT LEAVE TO AMEND. 13 14 IT IS SO ORDERED. 15 ||Dated: October 10, 2019 16 / Ue / 4. ‘4, WY 17 Hon. Larry Alan Burns 18 Chief United States District Judge 19 20 21 22 23 24 25 26 27 28