1 2 3 4 5 6 7 10 11 CRAIG PETERSEN, Case No. 21-cv-01345-BAS-AGS
12 Plaintiff, ORDER: 13 v. (1) DENYING PLAINTIFF’S MOTION FOR LEAVE TO AMEND 15 Defendant. HIS COMPLAINT (ECF No. 20)
16 (2) DISMISSING ACTION WITH
21 Plaintiff Craig Petersen brought this action on July 27, 2021, against the Internal 22 Revenue Service (“IRS”), its revenue officer Joseph Unger, and Stefan Kasain, 23 claiming wrongful levy of taxes against the bank account of Crystal Castle Alliance, an 24 organization of which Plaintiff alleges he is the “Director, President, Treasurer and 25 Secretary.” (Compl. ¶¶ 3, 8.) On January 21, 2022, the Court issued an Order granting the 26 motion to dismiss filed by Defendants IRS and Unger, finding that Petersen failed to allege 27 administrative exhaustion and statutory standing required to bring a wrongful levy claim. 28 (Order, ECF No. 18.) The Court gave Petersen until February 11, 2022, to amend his 1 pleading, advising Petersen that “[i]f no amended Complaint is filed by the date, the Court 2 will dismiss this action with prejudice without a further order.” (Id. at 6.) Petersen did not 3 file an amended Complaint or move for an extension of time before February 11, 2022. By 4 operation of the Court’s January 21, 2022 Order, Petersen’s claims against Unger and IRS 5 were dismissed with prejudice. Kasain remains as the only Defendant in this matter. 6 On February 15, 2022, the Court ordered Petersen to show cause why this action 7 should not be dismissed against Kasain under Federal Rules of Civil Procedure 8(a) and 8 12(b)(6). (Order to Show Cause (“OSC”), ECF No. 19 (finding that Petersen failed to give 9 Kasain notice of his claims, much less state a plausible claim for relief, because Petersen’s 10 allegations were directed against IRS and Unger).) The Court warned Petersen that his 11 failure to respond on or before March 7, 2022, would result in a dismissal of this action 12 with prejudice. 13 On March 7, 2022, Petersen filed a document entitled “Notice of Amended 14 Complaint.” (ECF No. 20.) Petersen notes that the document is in response to the Court’s 15 January 21, 2022 Order and requests sixty days to amend his Complaint to reallege his 16 claims against IRS and Unger. (Id.) 17 19 A. Petersen’s Motion to Amend his Complaint 20 Petersen moves the Court to grant him sixty days to amend his Complaint more than 21 twenty-one days after his claims against IRS and Unger have been dismissed with 22 prejudice. The Court construes Petersen’s motion as a motion for reconsideration because 23 he seeks to reassert the claims that were dismissed by operation of the Court’s January 21, 24 2022 Order. Before the entry of judgment, the district court has an inherent power to 25 reconsider its order. City of Los Angeles, Harbor Div. v. Santa Monica Baykeeper, 254 26 F.3d 882, 885 (9th Cir. 2001). Reconsideration of a prior order is an “extraordinary 27 remedy, to be used sparingly in the interests of finality and conservation of judicial 28 resources.” Kona Enters., Inc. v. Est. of Bishop, 229 F.3d 877, 890 (9th Cir. 2000). This 1 district’s local rules governing civil actions require any motion for reconsideration be 2 accompanied by an affidavit setting forth “what new or different facts and circumstances 3 are claimed to exist which did not exist, or were not shown.” See Civ. L.R. 7.1(i)(1). 4 Petersen’s motion does not comply with the local rule because the motion is not 5 supported by any affidavit. Moreover, the motion does not establish good cause for the 6 Court to grant him the “extraordinary remedy” of reopening his dismissed claims in 7 reconsideration of the Court’s January 21, 2022 Order. Petersen could have moved for an 8 extension within the time allotted, but he has not done so. His belated motion merely states 9 in a conclusory manner that “[d]ue to COVID-19 [he] has experienced inadvertent delays 10 in accessing mail and necessary resources to respond” and that the alleged wrongful levy 11 deprived him of resources to litigate this action. (ECF No. 20 at 2.) Such “conclusory 12 statement is plainly insufficient to justify the ‘extraordinary remedy’ of reconsideration.” 13 See Baranchik v. City of Redondo Beach, No. CV 10-6870 PA (JCGX), 2011 WL 14 13217546, at *4 (C.D. Cal. Sept. 12, 2011). 15 Therefore, the Court denies Petersen’s motion for reconsideration and denies him 16 leave to amend the already dismissed claims against IRS and Unger. 17 18 B. Petersen’s Claim against Kasain 19 Petersen’s motion does not respond to the Court’s OSC issued on February 15, 2022. 20 (OSC, ECF No. 19.) “District courts have the inherent power to control their dockets and, 21 ‘[i]n the exercise of that power they may impose sanctions including, where appropriate, 22 . . . dismissal of a case.’” Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992) (quoting 23 Thompson v. Hous. Auth. of L.A., 782 F.2d 829, 831 (9th Cir. 1986)); accord Link v. 24 Wabash R.R., 370 U.S. 626, 630–31 (1962) (holding that courts are vested with an inherent 25 power “to manage their own affairs so as to achieve the orderly and expeditious disposition 26 of cases”). This inherent power exists independently of a district court’s authority to 27 dismiss an action under Federal Rule of Civil Procedure 41(b). Link, 370 U.S. at 630–32. 28 1 “Despite this authority, dismissal is a harsh penalty and, therefore, it should only be 2 imposed in extreme circumstances.” Ferdik, 963 F.2d at 1260. 3 The circumstances in which a court may exercise its inherent power to dismiss an 4 action include where a plaintiff has failed to prosecute the case or failed to comply with a 5 court order. Link, 370 U.S. at 630; Yourish v. Cal. Amplifier, 191 F.3d 983, 989–90 (9th 6 Cir. 1999). In determining whether to exercise this power, “the district court must weigh 7 five factors including (1) the public’s interest in expeditious resolution of litigation; (2) the 8 court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public 9 policy favoring disposition of cases on their merits; and (5) the availability of less drastic 10 alternatives.” Ferdik, 963 F.2d at 1260–61 (quoting Henderson, 779 F.2d at 1424, and 11 Thompson, 782 F.2d 829 at 831) (internal quotation marks omitted). Although it is 12 preferred, the district court is not required to “make explicit findings in order to show that 13 it has considered these factors.” Ferdik, 963 F.3d at 1261. 14 Here, Petersen has failed to prosecute his action against Kasain. He has not complied 15 with the Court’s OSC. Having weighed the appropriate factors, the Court concludes that 16 dismissing this case is warranted. See Ferdik, 963 F.2d at 1260–61. As explained in the 17 OSC, other than alleging that the wrongful levy occurred because of Kasain’s tax debts, 18 Petersen’s allegations are directed against IRS and Unger. None of the relief that Petersen 19 seeks is directed against Kasain. Even when the Complaint is liberally construed, Petersen 20 does not provide a simple, concise narrative that sets forth the injuries attributed to Kasain. 21 His Complaint cannot avoid a dismissal under Federal Rules of Civil Procedure 8 and 22 12(b)(6).
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1 2 3 4 5 6 7 10 11 CRAIG PETERSEN, Case No. 21-cv-01345-BAS-AGS
12 Plaintiff, ORDER: 13 v. (1) DENYING PLAINTIFF’S MOTION FOR LEAVE TO AMEND 15 Defendant. HIS COMPLAINT (ECF No. 20)
16 (2) DISMISSING ACTION WITH
21 Plaintiff Craig Petersen brought this action on July 27, 2021, against the Internal 22 Revenue Service (“IRS”), its revenue officer Joseph Unger, and Stefan Kasain, 23 claiming wrongful levy of taxes against the bank account of Crystal Castle Alliance, an 24 organization of which Plaintiff alleges he is the “Director, President, Treasurer and 25 Secretary.” (Compl. ¶¶ 3, 8.) On January 21, 2022, the Court issued an Order granting the 26 motion to dismiss filed by Defendants IRS and Unger, finding that Petersen failed to allege 27 administrative exhaustion and statutory standing required to bring a wrongful levy claim. 28 (Order, ECF No. 18.) The Court gave Petersen until February 11, 2022, to amend his 1 pleading, advising Petersen that “[i]f no amended Complaint is filed by the date, the Court 2 will dismiss this action with prejudice without a further order.” (Id. at 6.) Petersen did not 3 file an amended Complaint or move for an extension of time before February 11, 2022. By 4 operation of the Court’s January 21, 2022 Order, Petersen’s claims against Unger and IRS 5 were dismissed with prejudice. Kasain remains as the only Defendant in this matter. 6 On February 15, 2022, the Court ordered Petersen to show cause why this action 7 should not be dismissed against Kasain under Federal Rules of Civil Procedure 8(a) and 8 12(b)(6). (Order to Show Cause (“OSC”), ECF No. 19 (finding that Petersen failed to give 9 Kasain notice of his claims, much less state a plausible claim for relief, because Petersen’s 10 allegations were directed against IRS and Unger).) The Court warned Petersen that his 11 failure to respond on or before March 7, 2022, would result in a dismissal of this action 12 with prejudice. 13 On March 7, 2022, Petersen filed a document entitled “Notice of Amended 14 Complaint.” (ECF No. 20.) Petersen notes that the document is in response to the Court’s 15 January 21, 2022 Order and requests sixty days to amend his Complaint to reallege his 16 claims against IRS and Unger. (Id.) 17 19 A. Petersen’s Motion to Amend his Complaint 20 Petersen moves the Court to grant him sixty days to amend his Complaint more than 21 twenty-one days after his claims against IRS and Unger have been dismissed with 22 prejudice. The Court construes Petersen’s motion as a motion for reconsideration because 23 he seeks to reassert the claims that were dismissed by operation of the Court’s January 21, 24 2022 Order. Before the entry of judgment, the district court has an inherent power to 25 reconsider its order. City of Los Angeles, Harbor Div. v. Santa Monica Baykeeper, 254 26 F.3d 882, 885 (9th Cir. 2001). Reconsideration of a prior order is an “extraordinary 27 remedy, to be used sparingly in the interests of finality and conservation of judicial 28 resources.” Kona Enters., Inc. v. Est. of Bishop, 229 F.3d 877, 890 (9th Cir. 2000). This 1 district’s local rules governing civil actions require any motion for reconsideration be 2 accompanied by an affidavit setting forth “what new or different facts and circumstances 3 are claimed to exist which did not exist, or were not shown.” See Civ. L.R. 7.1(i)(1). 4 Petersen’s motion does not comply with the local rule because the motion is not 5 supported by any affidavit. Moreover, the motion does not establish good cause for the 6 Court to grant him the “extraordinary remedy” of reopening his dismissed claims in 7 reconsideration of the Court’s January 21, 2022 Order. Petersen could have moved for an 8 extension within the time allotted, but he has not done so. His belated motion merely states 9 in a conclusory manner that “[d]ue to COVID-19 [he] has experienced inadvertent delays 10 in accessing mail and necessary resources to respond” and that the alleged wrongful levy 11 deprived him of resources to litigate this action. (ECF No. 20 at 2.) Such “conclusory 12 statement is plainly insufficient to justify the ‘extraordinary remedy’ of reconsideration.” 13 See Baranchik v. City of Redondo Beach, No. CV 10-6870 PA (JCGX), 2011 WL 14 13217546, at *4 (C.D. Cal. Sept. 12, 2011). 15 Therefore, the Court denies Petersen’s motion for reconsideration and denies him 16 leave to amend the already dismissed claims against IRS and Unger. 17 18 B. Petersen’s Claim against Kasain 19 Petersen’s motion does not respond to the Court’s OSC issued on February 15, 2022. 20 (OSC, ECF No. 19.) “District courts have the inherent power to control their dockets and, 21 ‘[i]n the exercise of that power they may impose sanctions including, where appropriate, 22 . . . dismissal of a case.’” Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992) (quoting 23 Thompson v. Hous. Auth. of L.A., 782 F.2d 829, 831 (9th Cir. 1986)); accord Link v. 24 Wabash R.R., 370 U.S. 626, 630–31 (1962) (holding that courts are vested with an inherent 25 power “to manage their own affairs so as to achieve the orderly and expeditious disposition 26 of cases”). This inherent power exists independently of a district court’s authority to 27 dismiss an action under Federal Rule of Civil Procedure 41(b). Link, 370 U.S. at 630–32. 28 1 “Despite this authority, dismissal is a harsh penalty and, therefore, it should only be 2 imposed in extreme circumstances.” Ferdik, 963 F.2d at 1260. 3 The circumstances in which a court may exercise its inherent power to dismiss an 4 action include where a plaintiff has failed to prosecute the case or failed to comply with a 5 court order. Link, 370 U.S. at 630; Yourish v. Cal. Amplifier, 191 F.3d 983, 989–90 (9th 6 Cir. 1999). In determining whether to exercise this power, “the district court must weigh 7 five factors including (1) the public’s interest in expeditious resolution of litigation; (2) the 8 court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public 9 policy favoring disposition of cases on their merits; and (5) the availability of less drastic 10 alternatives.” Ferdik, 963 F.2d at 1260–61 (quoting Henderson, 779 F.2d at 1424, and 11 Thompson, 782 F.2d 829 at 831) (internal quotation marks omitted). Although it is 12 preferred, the district court is not required to “make explicit findings in order to show that 13 it has considered these factors.” Ferdik, 963 F.3d at 1261. 14 Here, Petersen has failed to prosecute his action against Kasain. He has not complied 15 with the Court’s OSC. Having weighed the appropriate factors, the Court concludes that 16 dismissing this case is warranted. See Ferdik, 963 F.2d at 1260–61. As explained in the 17 OSC, other than alleging that the wrongful levy occurred because of Kasain’s tax debts, 18 Petersen’s allegations are directed against IRS and Unger. None of the relief that Petersen 19 seeks is directed against Kasain. Even when the Complaint is liberally construed, Petersen 20 does not provide a simple, concise narrative that sets forth the injuries attributed to Kasain. 21 His Complaint cannot avoid a dismissal under Federal Rules of Civil Procedure 8 and 22 12(b)(6). 23 // 24 // 25 // 26 // 27 // 28 // 2 Plaintiff's motion for reconsideration is denied. (ECF No. 20.) 3 Plaintiff has not complied with the Court’s OSC as to why this case should not be 4 ||dismissed under Rules 8 and 12(b)(6). Therefore, the Court DISMISSES this action 5 || WITH PREJUDICE. The Clerk of the Court is instructed to close this action and enter 6 || judgment. 7 9 A , 10 || DATED: March 10, 2022 Lin A (Lyohaa 6 11 United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 □□