Ohan v. Rettig

• Court: District Court, D. Alaska
• Decided: March 3, 2022
• Docket: 3:22-cv-00011
• Status: Unknown

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ALASKA

FESTUS O. OHAN,

Plaintiff,

v. Case No. 3:22-cv-00011-SLG UNITED STATES OF AMERICA, Defendant.

ORDER RE: MOTION TO DISMISS

At Docket 6, Defendant has filed a Motion to (1) Substitute the United States as Defendant, and (2) Dismiss the Complaint. Defendant’s motion seeks to substitute the United States of America as the sole Defendant in this action.1 Additionally, Defendants move to dismiss pursuant to Rules 12(b)(1) and 12(b)(6) of Federal Civil Procedure and relies an affidavit of an IRS Advisor and attached IRS Transcript.2 Under Rule 12(b)(1), a defendant may move to dismiss a complaint for lack of subject matter jurisdiction either by a “facial” or “factual” attack.3 In a factual attack, a defendant presents evidence outside of the pleadings to demonstrate that

1 Docket 6 at 3. The complaint names Charles Rettig, IRS Commissioner, as the Defendant. 2 Docket 6 at 4–6. 3 White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). the Court lacks subject matter jurisdiction over the complaint based on the facts of the case.4 When resolving a factual attack on jurisdiction, a court “need not presume the truthfulness of the plaintiff's allegations.”5 Once a defendant presents

a factual attack, the plaintiff “must furnish affidavits or other evidence necessary to satisfy its burden of establishing subject matter jurisdiction.”6 “The plaintiff bears the burden of proving by a preponderance of the evidence that each of the requirements for subject-matter jurisdiction has been met.”7 Here, Defendant asserts that the Court lacks subject matter jurisdiction over

Plaintiff’s complaint because Plaintiff has not paid the assessed taxes in full and did not file an administrative refund claim with respect to the penalties that the IRS levied against him. See Docket 6 at 4, citing Flora v. United States, 357 U.S. 63 (1958). Accordingly, Plaintiff may submit affidavits or other evidence in order to

demonstrate that this Court has subject matter jurisdiction. Local Civil Rule 7.4

4 Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004) (quoting Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004)). 5 Leite v. Crane Co., 749 F.3d 1117, 1121 (9th Cir. 2014); Wolfe, 392 F.3d at 362; Safe Air for Everyone, 373 F.3d at 1039. 6 Safe Air for Everyone, 373 F.3d at 1039 (quoting Savage v. Glendale Union High Sch., 343 F.3d 1036, 1039 n.2 (9th Cir. 2003)). 7 Leite, 749 F.3d at 1121 (citing Harris v. Rand, 682 F.3d 846, 851 (9th Cir. 2012)).

3:22-cv-00011-SLG, Ohan v. Rettig. Order Re: Motion to Dismiss requires that unless otherwise ordered, opposition memoranda must not exceed 35 pages or 10,000 words. IT IS THEREFORE ORDERED:

1. Defendant’s Motion to Substitute at Docket 6 is GRANTED. The Clerk of Court shall amend the caption as set forth in this order to reflect that United States of America is the sole Defendant in this action. 2. Plaintiff has until on or before 21 days after the date of this order to serve and file on Defendant any opposition and relevant supporting

evidence to Defendant’s Motion to Dismiss the Complaint at Docket 6. 3. Defendant has until 14 days after service of the Plaintiff’s opposition to serve and file a reply. DATED this 3rd day of March, 2022, at Anchorage, Alaska.

/s/ Sharon L. Gleason UNITED STATES DISTRICT JUDGE

3:22-cv-00011-SLG, Ohan v. Rettig. Order Re: Motion to Dismiss