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Dodenhoff v. Cache Creek Foods, LLC

United States District Court, E.D. California

April 13, 2015

DENNIS A. DODENHOFF, Plaintiff,
v.
CACHE CREEK FOODS, LLC, et al., Defendants.

ORDER AND FINDINGS AND RECOMMENDATIONS

KENDALL J. NEWMAN, Magistrate Judge.

INTRODUCTION

Presently pending before the court is a motion to dismiss filed by named defendant Tammy L. Pauler (erroneously named as defendant J L Paule) and the United States as real party in interest (collectively, the "Federal Defendants"). (ECF No. 5.) Plaintiff Dennis Dodenhoff, proceeding without counsel, filed an opposition to the motion, and the Federal Defendants filed a reply brief. (ECF Nos. 11, 12.) Thereafter, the motion was submitted for decision without oral argument on the record and written briefing pursuant to Local Rule 230(g). (ECF No. 13.) After carefully considering the written briefing, the court's record, and the applicable law, the court recommends that the motion to dismiss be GRANTED and that the action be dismissed with prejudice.

BACKGROUND

Plaintiff initially commenced this action in the Yolo County Superior Court on April 1, 2014. (ECF No. 1-1.) On January 14, 2015, the Federal Defendants removed the case to federal district court pursuant to 28 U.S.C. ยงยง 1441 & 1442(a)(1) as an action brought against an officer of the United States challenging the collection of taxes. (ECF No. 1.)[1] No motion to remand was filed.

Plaintiff's complaint, styled as a "Claim to Recover Pecuniary Property Taken Under Threat and to Enforce Plaintiff's Rights Protected by the State and Federal Constitutions" is rambling and confusing, and mostly contains conclusory statements and pontification concerning the constitutionality of federal income tax. (See generally ECF No. 1-1.) Liberally construed, plaintiff alleges that defendant Pauler, an Automated Collection System Operations Manager with the Internal Revenue Service ("IRS") improperly and unconstitutionally served an IRS Notice of Levy on Wages, Salary, and Other Income, dated December 12, 2013, on plaintiff's former employer, defendant Cache Creek Foods, LLC ("Cache Creek"), to collect outstanding federal income tax liabilities that plaintiff claims he does not owe. According to plaintiff, Cache Creek wrongfully complied with the IRS levy by paying most of plaintiff's wages to the IRS, because the IRS purportedly lacks jurisdiction and authority to levy taxes on plaintiff's wages. Plaintiff's complaint makes vague references to various statutes, discussed in greater detail below, and seeks the following relief: (1) a return of all levied wages; (2) punitive and exemplary damages in the amount of $100, 000.00; (3) an order directing the defendants to remove all tax liens and notices filed against plaintiff, and to abandon all future tax assessment and collection actions against plaintiff; and (4) costs of suit.

DISCUSSION

The Federal Defendants move to dismiss plaintiff's claims against them for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1); failure to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6); and lack of personal jurisdiction and insufficient service of process pursuant to Federal Rule of Civil Procedure 12(b)(2) and 12(b)(5).

Dismissal for Lack of Subject Matter Jurisdiction

"Federal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute, which is not to be expanded by judicial decree. It is to be presumed that a cause lies outside this limited jurisdiction, and the burden of establishing the contrary rests upon the party asserting jurisdiction." Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994) (citations omitted).

The Federal Defendants here contend that the doctrine of sovereign immunity bars plaintiff's claims against them, and that the court thus lacks subject matter jurisdiction over such claims.[2] For the reasons discussed below, that argument has merit.

As the Ninth Circuit Court of Appeals has explained:

It is well settled that the United States is a sovereign, and, as such, is immune from suit unless it has expressly waived such immunity and consented to be sued. Such waiver cannot be implied, but must be unequivocally expressed. Where a suit has not been consented to by the United States, dismissal of the action is required. It is axiomatic that the United States may not be sued without its consent and that the existence of such consent is a prerequisite for jurisdiction... It has long been the rule that the bar of sovereign immunity cannot be avoided by naming officers and employees of the United States as defendants. Thus, a suit against IRS employees in their official capacity is essentially a suit against the United States. As such, absent express statutory consent to sue, dismissal is required.

Gilbert v. DaGrossa, 756 F.2d 1455, 1458 (9th Cir. 1985) (citations and quotation marks omitted). The party who sues the United States bears the burden of pointing to an unequivocal waiver of sovereign immunity. ...


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