IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
December 12, 2012
UNITED STATES OF AMERICA, PLAINTIFF,
OREPLEX INT'L, LLC,
The opinion of the court was delivered by: Allison Claire United States Magistrate Judge
ORDER AND FINDINGS & RECOMMENDATIONS
Before the court is plaintiff United States of America's November 21, 2012 motion for default judgment, requesting nullification and enjoinment of defendant's lien filings.*fn1
The court has determined that the matter shall be submitted upon the record and briefs on file and accordingly, the date for hearing of this matter shall be vacated. Local Rule 230. On review of the motion and good cause appearing therefor, THE COURT FINDS AS FOLLOWS:
A. False Lien Filed in 2004
On or before 2004, Internal Revenue Services ("IRS") Officer Gregory Gillen was assigned to collect an unpaid Trust Fund Recovery Penalty and secure unfiled tax returns from an individual named Mark L. Bryan. See Mot. for Def. J. at 1-2. On June 28, 2004, Bryan filed with the Secretary of State of the State of California a false Uniform Commercial Code ("UCC") Financing Statement, Filing Number 0418460134, in the amount of $477,546,696.00 against Revenue Officer Gregory Gillen and other current and former IRS employees, including (then) Commissioner Mark Everson, Michael Rockwell, John Tam, Bill Ryder, Thomas Matthews, and Stephanie Hart. On July 6, 2004, Bryan filed with the Secretary of State of the State of California a UCC Financing Statement amending the June 28, 2004 UCC Financing Statement.
The United States brought an action to expunge the false lien filing. The court entered judgment in favor of the United States, and entered an order stating that "Mark L. Bryan is permanently enjoined from filing, or attempting to file, any document or instrument which purports to create a lien or any other purported non-consensual lien or encumbrance against the person or property of the above named IRS employees or others who authorized and/or performed any act in connection with the assessment or collection of defendant's tax liabilities." See United States v. Mark L. Bryan, 2:04-cv-2363 WBS JFM PS (E.D. Cal. June 3, 2005), aff'd, 200 Fed. Appx. 680 (9th Cir. 2006).
B. False Liens Filed in 2009
On November 25, 2009, defendant Oreplex International, LLC ("Oreplex") filed with the Secretary of State for the State of California a UCC Financing Statement, Filing Number 09-7215376393, falsely describing as debtors the former Commissioner of the IRS Mark Everson and the following current and former IRS employees: Gregory Gillen, Michael Rockwell, John Tam, Bill Ryder, Thomas Mathews, and Stephanie Hart. Compl. ¶ 5, Ex. 1. This UCC Financing Statement lists Oreplex as the secured party, but notes that the "original Secured Party, Mark Linn Bryan, has acknowledged by Private Contract this refiling of Financing Statement and its assignment to Oreplex International." Id., Ex. 1.
Also on November 25, 2009, Oreplex filed with the Secretary of State for the State of California a UCC Financing Statement, Filing Number 09-7215382259, falsely describing as a debtor Scott McGregor, the former United States Attorney for the Eastern District of California who at all times relevant to this action was involved in litigation regarding the unpaid federal tax liabilities of Mark L. Bryan. Compl. ¶ 9. This UCC Financing Statement also lists as debtors individuals named "Diana Woodward Hagle et al.," Bill Lockyer, Patrick Dorias, and Patrick Kenady, all at the address of 1300 I Street, Suite 125, Sacramento, CA 94244-2550. Compl. ¶ 6, Ex. 2. These individuals are State of California employees who have been falsely described as debtors of Oreplex. This UCC Financing Statement lists Oreplex as the secured party, but notes that the "original Secured Party, Mathios: (sic) Zarefakis, has acknowledged by Private Contract the right of Oreplex International, LLC to refile original Financing Statement 04-12460788 as the holder in due course, Secured Party." Id.
C. False Lien Filed in 2010
On February 15, 2010, Oreplex filed with the Secretary of State for the State of California a UCC Financing Statement, Filing Number 10-7222855375, falsely describing as debtors Scott McGregor and Patrick Jennings, a Trial Attorney with the United States Department of Justice in Washington, D.C., who at all times relevant to this action was involved in litigation regarding the unpaid federal tax liabilities of Mark L. Bryan. Compl. ¶¶ 7, 9. This UCC Financing Statement lists Oreplex International, LLC as the secured party for an amount totaling $97,906,623,613.92. Compl. ¶ 7, Ex. 3.
In the complaint filed June 25, 2012, plaintiff alleges the UCC Financing Statements described above were filed by Oreplex in conjunction with Mark L. Bryan in retaliation for the acts performed by federal employees during the course of their official duties on behalf of the government. Compl. ¶ 10. The liens total billions of dollars and purport to encumber the real and personal property of Mark Everson, Gregory Gillen, Michael Rockwell, John Tam, Bill Ryder, Thomas Matthews, Stephanie Hart, Bill Lockyer, Patrick Dorias, Patrick Kenady, "Diana Woodward Hagle et al.," Scott McGregor, and Patrick Jennings. Plaintiff alleges these liens were intended to cause substantial interference with the enforcement of the laws of the United States pertaining to the internal revenue and to molest, hinder, intimidate or impede employees of the United States in the good faith performance of their official duties.
Plaintiff asks the court to (a) determine, adjudge, and declare the UCC Financing Statements described above to be null, void, and of no legal effect; (b) expunge and remove any record of the UCC Financing Statements described above from the official records of the Secretary of State for the State of California; (c) grant leave to file any Order or Judgment obtained in the present case with the Secretary of State for the State of California, and in the public records of any other jurisdiction where documents identical or similar to the UCC Financing Statements described above that may have been filed by Brian; and (d) permanently enjoin Oreplex, its agents, employees, and all others in active concert or participation with it from filing, or attempting to file, any document or instrument which purports to create any nonconsensual lien or encumbrance against the person or property of any employee of the United States.
On July 3, 2012, Oreplex was served with the summons and complaint. See Doc. No. 4. Oreplex has not answered the complaint or appeared in this case in any manner. On September 24, 2012, the government filed a Request for Entry of Default against Oreplex. Doc. No. 5. On September 25, 2012, the Clerk of the Court entered default against Oreplex.
Now pending is plaintiff's November 21, 2012 motion for default judgment. As with the complaint, the motion seeks a judgment declaring the UCC Financing Statements at issue in this litigation be declared null, void, and without legal effect. Plaintiff further seeks injunctive relief enjoining defendant from filing similar non-consensual liens in the future against employees of the United States.
A court has the discretion to enter a default judgment against one who is not an infant, incompetent, or member of the armed services where the claim is for an amount that is not certain on the face of the claim and where (1) the defendant has been served with the claim; (2) the defendant's default has been entered for failure to appear; (3) if the defendant has appeared in the action, the defendant has been served with written notice of the application for judgment at least three days before the hearing on the application; and, (4) the court has undertaken any necessary and proper investigation or hearing in order to enter judgment or carry it into effect. Fed. R. Civ. P. 55(b); Alan Neuman Productions, Inc. v. Albright, 862 F.2d 1388, 1392 (9th Cir. 1988). Factors that may be considered by courts in exercising discretion as to the entry of a default judgment and as to setting aside a default include the nature and extent of the delay, Draper v. Coombs, 792 F.2d 915, 924-25 (9th Cir. 1986); the possibility of prejudice to the plaintiff, Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986); the merits of plaintiff's substantive claim, id.; the sufficiency of the allegations in the complaint to support judgment, Alan Neuman Productions, Inc., 862 F.2d at 1392; the amount in controversy, Eitel v. McCool, 782 F.2d at 1471-72; the possibility of a dispute concerning material facts, id.; whether the default was due to excusable neglect, id.; and, the strong policy underlying the Federal Rules of Civil Procedure that favors decisions on the merits, id.
1. Factor One: Possibility of Prejudice to Plaintiff
The first factor set forth by the Ninth Circuit in Eitel considers whether the plaintiff would suffer prejudice if default judgment is not entered, and whether such potential prejudice to the plaintiff militates in favor of granting a default judgment. See PepsiCo, Inc. v. Cal. Sec. Cans, 238 F. Supp. 2d 1172, 1177 (C.D. Cal. 2002). Here, plaintiff would potentially face prejudice if the court did not enter a default judgment. Absent entry of a default judgment, plaintiff would be without another recourse for recovery and the individuals named in Oreplex's UCC Financial Statements would continue to suffer personal harm by the filing of false liens against their real and personal property. Accordingly, the first Eitel factor favors the entry of default judgment.
B. Factors Two and Three: The Merits of Plaintiff's Substantive Claims and the Sufficiency of the Complaint
The undersigned considers the merits of plaintiff's substantive claims and the sufficiency of the complaint together below because of the relatedness of the two inquiries. The undersigned must consider whether the allegations in the complaint are sufficient to state a claim that supports the relief sought. See Danning v. Lavine, 572 F.2d 1386, 1388 (9th Cir. 1978); PepsiCo, Inc., 238 F. Supp. 2d at 1175.
Here, the following facts establish plaintiff is entitled to the relief sought. Under 26 U.S.C. § 7402(a), the district court is empowered "to void common-law liens imposed by taxpayers on the property of government official assigned to collect delinquent taxes." Ryan v. Bilby, 764 F.2d 1325, 1327 (9th Cir. 1985). Injunctive relief enjoining the taxpayer from filing such liens in the future is also appropriate. Id. The exhibits attached to the Complaint clearly show that Oreplex filed UCC Financing statements with the Secretary of State for the State of California against multiple officers of the United States. Facts presented in the Declaration of Patrick Jennings also demonstrate that he, as an officer of the United States, has no relationship with Oreplex that would give rise to a legitimate notice of lien. It is therefore readily apparent that the liens are frivolous. Moreover, the court accepts as true plaintiff's assertion that Mark L. Bryan is affiliated with Oreplex and has used that entity solely to retaliate against government employees for their good-faith efforts to enforce the tax laws against him. Plaintiff has demonstrated that the entry of the requested injunction is necessary and appropriate to the enforcement of the internal revenue laws. 26 U.S.C. § 7402(a).
In addition, plaintiff has demonstrated that continued filings of frivolous liens against its officers would cause it irreparable harm because federal officers who face personal reprisal through encumbrance of their property and damage to their credit record may be unable to enforce the internal revenue laws vigorously and evenhandedly. Furthermore, plaintiff has demonstrated that it has no adequate remedy at law with respect to future frivolous lien filings, because it would suffer the irreparable harm described above during the time in which it would be required to apply to a court to have the lien filings stricken. The equities weigh in favor of plaintiff because Oreplex has no basis for filing nonconsensual liens against federal officers. An injunction is also in the public interest because it will help ensure that federal officers can apply the internal revenue laws free of retaliation and harassment by defendants. In the circumstances presented here, the second and third factors weigh heavily in favor of default judgment.
C. Factor Four: The Sum of Money at Stake in the Action
Under the fourth factor cited in Eitel, "the court must consider the amount of money at stake in relation to the seriousness of Defendant's conduct." PepsiCo, Inc., 238 F. Supp. 2d at 1177. Here, plaintiff seeks no monetary damages. Accordingly, this factor does not weigh against entry of default judgment.
D. Factor Five: The Possibility of a Dispute Concerning Material
Facts The facts of this case are relatively straightforward, and
plaintiff has provided the
court with well-pleaded allegations supporting its claims and
affidavits in support of its allegations. The court may assume the
truth of well-pleaded facts in the complaint (except as to
damages) following the clerk's entry of default and, thus, there is no
likelihood that any genuine issue of material fact exists.
See, e.g., Elektra Entm't Group Inc. v. Crawford, 226 F.R.D.
388, 393 (C.D. Cal. 2005) ("Because all allegations in a well-pleaded
complaint are taken as true after the court clerk enters default
judgment, there is no likelihood that any genuine issue of material
fact exists."); accord Philip Morris USA, Inc., 219 F.R.D. at 500;
PepsiCo, Inc., 238 F. Supp. 2d at 1177.
E. Factor Six: Whether the Default Was Due to Excusable Neglect Upon review of the record before the court, the undersigned finds that the default was not the result of excusable neglect. See PepsiCo, Inc., 238 F. Supp. 2d at 1177. Oreplex was in compliance with the Federal Rules of Civil Procedure, over five months have passed since Oreplex was served with summons, and it has made no attempt to appear in this action. Moreover, plaintiff served defendant by mail with notice of its motion for default judgment. Despite ample notice of this lawsuit and plaintiff's intention to seek a default judgment, Oreplex has not appeared in this action to date. Thus, the record suggests that Oreplex has chosen not to defend this action, and not that the default resulted from any excusable neglect. Accordingly, this Eitel factor favors the entry of a default judgment.
F. Factor Seven: The Strong Policy Underlying the Federal Rules of Civil Procedure Favoring Decisions on the Merits "Cases should be decided upon their merits whenever reasonably possible." Eitel, 782 F.2d at 1472. However, district courts have concluded with regularity that this policy, standing alone, is not dispositive, especially where a defendant fails to appear or defend itself in an action. PepsiCo, Inc., 238 F. Supp. 2d at 1177; see also Craigslist, Inc. v. Naturemarket, Inc., 2010 WL 807446, at *16 (N.D. Cal. Mar. 5, 2010); ACS Recovery Servs., Inc. v. Kaplan, 2010 WL 144816, at *7 (N.D. Cal. Jan. 11, 2010) (unpublished); Hartung v. J.D. Byrider, Inc., 2009 WL 1876690, at *5 (E.D. Cal. June 26, 2009) (unpublished). Accordingly, although the undersigned is cognizant of the policy in favor of decisions on the merits-and consistent with existing policy would prefer that this case be resolved on the merits-that policy does not, by itself, preclude the entry of default judgment.
Upon consideration of the Eitel factors, the undersigned concludes that entry of default judgment against Oreplex is appropriate. In particular, plaintiff is entitled to the injunctive relief sought in that plaintiff has demonstrated the probability of success on the merits, plaintiff will suffer irreparable harm in the absence of injunctive relief, the balance of equities weighs in favor of plaintiff, and the injunctive relief sought is in the public interest. Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7 (2008). The court has reviewed the proposed order submitted by plaintiff and approves the same as to substance and form.
Based on the foregoing, IT IS HEREBY ORDERED that the January 16, 2013 hearing on plaintiff's motion for default judgment is vacated; and
IT IS HEREBY RECOMMENDED that:
1. Plaintiff's motion for default judgment against Oreplex be granted;
2. The court declare that the UCC Financing Statements at issue are null, void, and without legal effect;
3. The court enjoin defendant from filing similar non-consensual liens in the future against employees of the United States.
4. The court enter the proposed order granting declaratory and injunctive relief, which is approved as to substance and form.
5. This action be closed.
These findings and recommendation are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Rule 72-304 of the Local Rules of Practice for the United States District Court, Eastern District of California. Within fourteen (14) days after being served with a copy, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendation." Replies to the objections shall be served and filed within seven (7) court days after service of the objections. The Court will then review the Magistrate Judge's ruling pursuant to 28 U.S.C. § 636(b)(1)(C). The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).