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United States v. Weldon

May 4, 2010

UNITED STATES OF AMERICA, PLAINTIFF,
v.
LOWELL D. WELDON, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Lawrence J. O'Neill United States District Judge

ORDER DENYING THE DEFENDANTS' MOTIONS TO SET ASIDE THE DEFAULT JUDGMENT AND TO VOID THE DEFAULT JUDGMENT

(Docs. 53, 54 & 60)

Pending before the Court are three motions brought by Defendants Lowell D. and Bessie L. Weldon to set aside the default judgment against them.*fn1 This Court has reviewed the papers and has determined that this matter is suitable for decision without oral argument pursuant to Local Rule 78-230(h). Having considered all written materials submitted, the Court denies Defendants' motion.

I. Procedural and Factual Background

On October 28, 2008, the Government filed a complaint to reduce to judgment federal tax assessments attributable to the tax years from 1997 through 2003 against Lowell D. Weldon and to foreclose tax liens on three parcels of real property owned by Weldon (Doc. 1). Defendant Bessie L. Weldon was named as a defendant pursuant to 26 U.S.C. § 7403(b) because of her community property interest in the real properties subject to the Government's liens. Although they attended the initial scheduling conference, Defendants never answered the complaint nor participated thereafter, even though they were served with all court documents throughout the litigation. The Clerk entered default against Lowell D. Weldon and Bessie L. Weldon on April 10, 2009 (Doc. 30). The Default Judgment and Order of Foreclosure was entered March 30, 2010 (Doc. 52).

Defendants then filed both a motion to set aside judgment (Doc. 53) and a motion to alter or amend judgment (Doc. 54). Both motions sought additional time for Defendants to exhaust administrative remedies and revoked all power of attorney. On April 12, 2010, the Government filed its opposition to Defendants' motions to set aside the judgment (Doc. 55). On April 13, 2010, after reviewing Defendants' motions and the Government's opposition, this Court entered an order permitting Defendants to "reply to specific issues raised by Plaintiff's opposition" (Doc. 57). The Court warned: "Defendants are admonished that failure to comply with this motion may result in striking their motion" (Doc. 57). On April 28, 2010, Defendants filed yet another motion to set aside the default judgment, repeating their earlier arguments but failing to address the objections set forth in the Government's opposition (Doc. 60).

II. Setting Aside Default Judgment

Defendants bring their motions under F.R.Civ.P. 59(e), which prescribes the time period within which a party must bring an action to alter or amend a judgment, but does not address motions to set aside default judgments. Motions to vacate default judgments are governed by F.R.Civ.P. 60(b). Defendants' motions do not fit nicely into any of the grounds for relief from a default judgment under F.R.Civ.P. 60(b), and having failed to identify the applicable rule, Defendants do not argue that any such grounds exist. Yet Defendants bear the burden of proving that good cause favors the vacating of the judgment. TCI Group Life Ins. Plan v. Knoebber. 244 F.3d 691, 696 (9th Cir. 2001)

Under the good-cause standard, "a district court may deny a motion to vacate a default judgment if: (1) the plaintiff would be prejudiced if the judgment is set aside, (2) defendant has no meritorious defense, or (3) the defendant's culpable conduct led to the default." American Ass'n of Naturopathic Physicians v. Hayhurst, 227 F.3d 1104, 1108 (9th Cir. 2000), cert. denied, 532 U.S. 1008 (2001). This test is disjunctive. In re Hammer, 940 F.2d 524, 525-26 (9th Cir. 1991). This means that a district court may deny the motion if any of the three factors is true. Id. at 526. Because all three factors are satisfied in this case, this Court will deny Defendants' motions.

A. No Meritorious Defense

Defendants' motions do not directly address the criteria for setting aside default judgments but advance frivolous arguments commonly espoused by tax protesters.*fn2 Defendants' failure to present a meritorious defense is a sufficient ground to deny Defendants' motions to set aside the default judgment against them. When a defendant presents no meritorious defense, reopening the judgment can only result in pointless delay. Hawaii Carpenters' Trust Funds v. Stone, 794 F.2d 508, 513 (9th Cir. 1986).

Many of Defendants' allegations are nonsensical, such as their characterizing themselves as tax assessors, not taxpayers; declaring that 'there will be no summary judgments for plaintiff in this case for the duration;" and disavowing any legal presumption that "may be detrimental to The Weldon's interest and/or case." In particular, Defendants espouse two frivolous theories commonly employed by tax protesters: (1) declaring that the Internal Revenue Service ("IRS") is not a governmental entity, and (2) claiming that Defendants can "charge back or redeem" their tax liabilities against their personal value.

1. Private Corporation

Defendants frivolously contend that the IRS is not a government agency, only a private corporation without authority to enforce the Internal Revenue Code. They are wrong. Young v. Internal Revenue Service, 596 F.Supp. 141, 147 (N.D. Ind. 1984). "Like it or not, the Internal Revenue Code is the law." Ryan v. Bilby, 764 F.2d 1325, 1328 (9th Cir. 1985). See also United States v. Fern, 696 F.2d 1269, 1273 ...


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