United States v. Hansen

233 F.R.D. 665, 64 Fed. R. Serv. 3d 47, 97 A.F.T.R.2d (RIA) 785, 2005 U.S. Dist. LEXIS 40154, 2005 WL 3801751
CourtDistrict Court, S.D. California
DecidedOctober 28, 2005
DocketNo. 05CV921-L(NLS)
StatusPublished
Cited by4 cases

This text of 233 F.R.D. 665 (United States v. Hansen) is published on Counsel Stack Legal Research, covering District Court, S.D. California primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Hansen, 233 F.R.D. 665, 64 Fed. R. Serv. 3d 47, 97 A.F.T.R.2d (RIA) 785, 2005 U.S. Dist. LEXIS 40154, 2005 WL 3801751 (S.D. Cal. 2005).

Opinion

ORDER GRANTING MOTION TO COMPEL

STORMES, United States Magistrate Judge.

Before this Court is the Motion of United States of America (“Plaintiff’) to Compel Appearance at Deposition of Defendant Christopher M. Hansen (“Defendant”). [Dkt. No. 34, 35.] Defendant has filed an Opposition to the Motion. [Dkt. No. 37, 38.] Plaintiff has filed a Reply in support of its Motion. [Dkt. No. 40.] The Court finds the issues appropriate for a decision on the papers and without oral argument pursuant to Local Rule 7.1(d)(1). For the reasons explained below, the Motion to Compel is GRANTED.

Background

Defendant sells how-to guides containing forms, instructions and tactics to help his customers avoid paying federal taxes. [Complaint H 7.] The forms range in price from $10 to $40. [Complaint H 7.] He also sells sample response letters, at a cost of approximately $50 per letter, for customers to use when they receive correspondence from the Internal Revenue Service (“IRS”). [Complaint H 8.] These letters are designed to disrupt or hinder the enforcement of internal revenue laws. [Complaint 118, 9.] He also advises customers how to assert frivolous positions and engage in disruptive tactics to obstruct audits conducted by the IRS. [Complaint 1110.] Defendant also markets a program to assist customers in giving up their “U.S. citizenship” and claim “American National citizenship,” which he advises them will result in their not being liable for federal income taxes. [Complaint H18.] He charges $2,000 for an individual to participate in this program. [Complaint 1118.] Defendant markets his programs through word of mouth, at seminars, and on the Internet through his websites vnm.famguardian.org and vnm.sedm.org. [Complaint H 21.] He is aware that courts have rejected his positions related to the federal tax laws but blames this on a “judicial conspiracy to protect and expand the federal income tax.” [Complaint H 23.]

On May 2, 2005, Plaintiff filed this action seeking to permanently enjoin Defendant from, among other activities, promoting programs that advise or encourage customers to violate the tax laws and evade assessment or collection of federal tax liabilities; making false or fraudulent statements about the securing of any tax benefit by reason of participation in any plan or arrangement; engaging in conduct that interferes with the administration and enforcement of the tax laws; and engaging in any activity subject to penalty under the Internal Revenue Code. [Complaint 111.] Defendant filed an Answer to the Complaint and also a Motion to Dismiss, arguing lack of subject matter jurisdiction, lack of personal jurisdiction, failure to state a claim upon which relief can be granted, and various other matters. [Dkt. No. 5, 7.] The District Court denied Defendant’s Motion to Dismiss in its entirety on July 26, 2005. [Dkt. No. 20.]

[667]*667On September 16, 2005, this Court held a Case Management Conference pursuant to Local Rule 16.1(d), and thereafter issued a scheduling order regulating discovery under Federal Rule 26 and other pretrial proceedings in the ease. [Dkt. No. 80.] On October 5, 2005, Plaintiff filed this Motion to Compel, asserting that Defendant has refused to submit to a deposition. [Memorandum in Support of United States’ Motion to Compel Appearance at Deposition (“Pl.Memo.”) at 1.] In support, Plaintiffs counsel asserts that in late September 2005, he contacted Defendant about taking his deposition, informing him that the deposition would take place at the U.S. Attorney’s Office in San Diego, and providing him with several alternative dates. [PI. Memo, at 1-2.] According to counsel, Defendant stated that he would be available on one of the dates but that he would not appear unless counsel agreed to a number of conditions, including signing a “Deposition Agreement” Defendant submitted to counsel. [PI. Memo, at 2-3.] The six-page agreement sought to place numerous limitations and conditions on the deposition, including the following: that the deponent and deposer would “alternate” questions back and forth, and if one person refused to answer a question the other person could also refuse to answer; that the deposition would not take place on federal property; that any “witnesses” Defendant brought with him to the deposition would not be required to identify themselves or “suffer the humiliating experience of having their luggage scanned”; that the Plaintiff would be required to provide evidence “constituting probable cause” to pursue this case at least five days prior to the deposition; and that Defendant would be granted witness immunity prior to the deposition. [Motion at 2-3, Exhibit A.] Plaintiff declines to accept these conditions, and instead requests that the Court compel Defendant to appear for a deposition on a date certain and otherwise conduct himself in accordance with the Federal Rules. [Motion at 5.]

Defendant opposes the Motion to Compel. [Dkt. Nos. 37, 38.] He argues at length that this is not a proper legal proceeding, raising arguments related to subject matter jurisdiction, personal jurisdiction, venue, and the proper scope of several of the tax laws at issue in the case. [Memorandum of Law In Support of Motion to Compel Appearance at Deposition (“Def.Memo.”) at 9-21.] He also seeks to justify his proposed limitations on the deposition as reasonable. [Def. Memo, at 4-11.] Additionally, he asserts that because the parties have not consented to the jurisdiction of the Magistrate Judge, this Court lacks authority to compel “anyone to do anything” in the case, “including attend a deposition.” [Def. Memo, at 7.]

Analysis

Federal Rule of Civil Procedure 26(b) provides that a party may obtain discovery “regarding any matter, not privileged, that is relevant to the claim or defense of any party.” Fed.R.Civ.P. 26(b)(1). This includes taking the deposition of parties to the case. Fed.R.Civ.P. 30(a)(1) (“A Party may take the testimony of any person, including a party, by deposition upon oral examination without leave of court----”). Plaintiff wishes to take Defendant’s deposition, and under the Federal Rules of Civil Procedure has a clear right to do so.

In his lengthy filings, Defendant fails to offer any legitimate basis for his failure to submit to a deposition. The bulk of his Opposition is devoted to discussing perceived deficiencies in Plaintiffs Complaint. [Def. Memo, at 6-23.] Arguments related to lack of subject matter jurisdiction, lack of personal jurisdiction, or a deficiency in the pleadings must be raised in a motion to dismiss filed with the District Court, and are not a legitimate response to Plaintiffs request for discovery. Moreover, the docket reflects that Defendant previously filed a Motion to Dismiss raising many of these same arguments; the District Court denied that motion in its entirety. [Dkt. Nos. 7, 9, 20.] This case has now proceeded to the discovery stage, and under the Federal Rules, Plaintiff is entitled to conduct discovery relevant to the claims and defenses in the suit, including taking Defendant’s deposition. See Fed. R.Civ.P. 26(b), 30(a)(1).

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233 F.R.D. 665, 64 Fed. R. Serv. 3d 47, 97 A.F.T.R.2d (RIA) 785, 2005 U.S. Dist. LEXIS 40154, 2005 WL 3801751, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-hansen-casd-2005.