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United States of America v. andre Paul Provost

April 6, 2012

UNITED STATES OF AMERICA,
PLAINTIFF,
v.
ANDRE PAUL PROVOST, JR., DEFENDANT.



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

ORDER RE: PLAINTIFF‟S MOTION TO STRIKE DEFENDANT‟S PETITION FOR DECLARATORY JUDGMENT AND RECORD (DOC. 6)

I. INTRODUCTION.

Plaintiff, United States of America (the "United States") moves to strike Defendant, Andre Paul Provost, Jr.‟s ("Defendant") "Petition for Declaratory Judgment and Record." ECF No. 5. The United States asserts that Defendant‟s Petition is irrelevant, non-responsive and espouses nothing more than nonsensical tax-defier arguments.

II. BACKGROUND AND PROCEDURAL HISTORY.

On December 16, 2011, the United States filed its Complaint, seeking to obtain a judgment on Defendant‟s alleged outstanding federal income taxes for the tax years 1995 through 1997 in the amount of $190,694.20. Complaint, ECF No. 1.

Defendant was served with a copy of the Complaint, Summons, and Court Order January 28, 2012. ECF. No. 2. The returned Summons was filed on February 3, 2012. ECF. No. 4.

On February 9, 2012, Defendant, pro se, filed a "Petition for Declaratory Judgment and Record" ("Petition"). ECF. No. 5. Defendant was required to file an Answer or other responsive pleading by February 21, 2012.

III. LEGAL STANDARD.

Federal Rule of Civil Procedure 12(f) permits the Court to "[strike] from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Fed. R. Civ. Pro. 12(f).

Redundant matter "consists of allegations that constitute a needless repetition of other averments in the pleading." 5 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1382 (1990). Immaterial matter is "that which has no essential or important relationship to the claim for relief or the defenses being pleaded." Id. Impertinent matter "consists of statements that do not pertain, and are not necessary, to the issues in question." Id. Scandalous matter is "that which improperly casts a derogatory light on someone, most typically on a party to the action." Id.

IV. DISCUSSION.

In his rambling Petition, Defendant advances an array of irrelevant, unintelligible and meritless arguments. Many, if not all, of Defendant‟s theories are so outlandish the Court hesitates to respond for fear that it might suggest these arguments have legal recognition; however, the Court addresses Defendant‟s assertions in order that Defendant will understand the error in continuing to advance them. See, e.g., Granzow v. C.I.R., 739 F.2d 265, 269--270 (7th Cir.1984) ("[the Court] can no longer tolerate abuse of the judicial review process by irresponsible taxpayers who press stale and frivolous arguments, without hope of success on the merits, in order to delay or harass the collection of public revenues or for other non-worthy purposes"); see also, Crain v. Commissioner, 737 F. 2d 1417 (5th Cir. 1984) (stating "[w]e perceive no need to refute these arguments with somber reasoning and copious citation to precedent; to do so might suggest that these arguments have some colorable merit").

A. Jurisdiction.

Defendant‟s Petition begins with citation to case law regarding diversity jurisdiction.

Petition at 1-2. This matter is brought by the United States, and thus jurisdiction is proper under 28 U.S.C. § 1345. Further, the matter is brought pursuant to the federal internal revenue laws and under 28 U.S.C. § 1340, which vests this Court with jurisdiction over ...


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