Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

ELMER v. METZGER

March 11, 1997

DEL ELMER; ZACHAY, Plaintiff,
v.
REINHOLD METZGER, et al, Defendants.



The opinion of the court was delivered by: BREWSTER

 This matter came on regularly for hearing on defendants' motions to dismiss. After careful consideration of the papers which have been filed, the Court hereby GRANTS defendants' motions to dismiss without leave to amend.

 I. Background

 The gravamen of plaintiff's complaint is that his property was seized when an Internal Revenue Service Officer, defendant McArdle, levied on payments owing from defendant Reinhold Metzger ("Metzger") to plaintiff for payment of back taxes. Pursuant to the tax levy, Metzger paid the IRS rather than plaintiff. Plaintiff contends that the tax debt is not valid and that he was not named on the debt instrument.

 Metzger allegedly borrowed $ 70,000 from plaintiff which was secured by a note on a leasehold interest in Keystone Trailer Park. A trust deed in favor of plaintiff was allegedly filed on May 17, 1982 with repayment to be on a 15 year schedule payable at $ 659.48 per month. Metzger made payments until April of 1993 when he stopped. Apparently, Metzger received a letter from defendant McArdle of the Internal Revenue Service ("IRS") telling him to send all future payments to the IRS. Complaint P 28. As a result of this seizure of funds, plaintiff was not able to make his mortgage payments on property he owned, and it was foreclosed on. Complaint P 45.

 Plaintiff alleges various statutory and constitutional violations based on this seizure of his finds, including: (1) his property was seized and sold in violation of the Fourth Amendment; (2) he was denied due process of law under the Fifth Amendment because there was no presentment of the debt to a Grand Jury, no indictment and no trial prior to his property being seized; (3) he was denied his Seventh Amendment right to a jury trial before his property was seized; (4) by forcing him to labor to pay off the debt, he was subjugated to the status of a peon in violation of the Thirteenth Amendment. Plaintiff alleges 16 statutory and constitutional violations in total, all of which are based on the same facts.

 Plaintiff alleges a cause of action against IRS Officer McArdle because "officer of the court gives rise to an action under Title 42 USCA1986 for 'knowledge' and 'neglect' and 'perjury of oath' under Title 18 USCA1621, as the officer swore to defend and protect the citizens of the State, then with want of care, violated that oath and were enriched by the State for their actions to violate a citizen's rights."

 Plaintiff alleges four causes of action all of which are based on alleged violations of the Thirteenth Amendment and 42 U.S.C. §§ 1994, 1986 & 1985. Plaintiff seeks $ 959,428.00 in compensatory and punitive damages, a return of all property seized, declaratory relief that McArdle has no right to collect a debt from him, declaratory relief that defendants committed various criminal acts, and criminal indictments against defendants based on 18 U.S.C. §§ 2, 4, 241, 242, 2112, 872, 1001, 1621, 1622, 1963, 1964, 3623, and 1581.

 Defendants McArdle and Metzger have filed motions to dismiss. Plaintiff has not filed an opposition, however, his complaint states:

 
Dispositive motions filed in this case are a fraud upon the court and the plaintiff, and will give rise to FRCP 12(b)(1)(2)(6)(7), as to those dispositive motions.

 Complaint P 2.

 II. Discussion

 Defendants move to dismiss this action on three grounds: (1) insufficiency of service of process, (2) failure to state a claim upon which relief can be granted, and (3) lack of subject matter jurisdiction.

 A. Insufficiency of Service of Process

 1. Governing Law

 Fed. R. Civ. P. 4(i) provides that:

 
(1) Service upon the United States shall be effected
 
(A) by delivering a copy of the summons and of the complaint to the United States attorney for the district in which the action is brought or to an assistant United States attorney or clerical employee designated by the United States attorney ...
 
(B) by also sending a copy of the summons and of the complaint by registered or certified mail to the Attorney General of the United States at Washington, District of Columbia, ...
 
(2) Service upon an officer, agency or corporation of the United States shall be effected by serving the United States in the manner prescribed by paragraph (1) of this subdivision and by also sending a copy of the summons and of the complaint by registered or certified mail to the officer, agency or corporation.

 Fed. R. Civ. P. 4(m) provides:

 
If service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint, the court, upon motion or on its own initiative after notice to the plaintiff, shall dismiss the action without prejudice as to that defendant or direct that service be effected within a specified time; provided that if the plaintiff shows good ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.