United States District Court, N.D. California
ORDER REGARDING MOTION FOR DE NOVO DETERMINATION OF
DISPOSITIVE MATTER Re: ECF Nos. 22, 29, 38
TIGAR, District Judge.
matter is before the Court on Petitioner Maxcrest
Limited's objection to a Report and Recommendation
("R&R") Regarding Respondent's Motion to
Dismiss the Petition to Quash issued by Magistrate Judge
Elizabeth Laporte. ECF No. 29. The case was referred to the
undersigned immediately following the issuance of Judge
Laporte's R&R. Petitioner Maxcrest Limited has moved for
de novo determination of the petition. ECF No. 38.
Respondent United States has filed a response requesting that
the Court adopt the Report and Recommendation in its
entirety. ECF No. 42.
Court will grant Petitioner's motion (ECF No. 38), deny
the United States' motion to dismiss the petition (ECF
No. 22) as moot, and terminate the Report and Recommendation
(ECF No. 29).
Limited is a successor-in-interest to Platten Overseas Ltd.
ECF No. 1 Â¶ 4; ECF No. 33 Â¶ 4. On September 16, 2015, the IRS
issued a summons to Google Inc. to produce account
information for the email account
"firstname.lastname@example.org." Maxcrest filed a
petition on November 13, 2015, requesting that the Court
quash the IRS summons because the United States failed to
give proper notice. ECF No. 1. On January 11, 2016, the
United States moved to dismiss the petition, ECF No. 12, and
on February 1, 2016, Maxcrest filed its opposition to the
motion, ECF No. 20.
February 12, 2016, the United States withdrew the summons
("the first summons"). See ECF No. 22-2, Ex. A.
Four days later, the United States withdrew its motion to
dismiss and filed a second motion to dismiss, arguing that
the petition to quash the first summons had become moot. ECF
March 17, 2016, the United States served another summons
("the second summons") on Google and served notice
on Maxcrest by certified mail. ECF No. 32.
March 25, 2016, Magistrate Judge Laporte issued her R&R
regarding the United States' motion to dismiss the
petition. ECF No. 29. Judge Laporte recommended granting the
United States' motion and dismissing Maxcrest's
petition with leave to amend to challenge the second summons.
April 7, 2016, the parties filed a stipulation agreeing that
Maxcrest could file an amended petition to quash the second
summons. ECF No. 32. That same day, Maxcrest filed an amended
petition. ECF No. 33. On April 20, 2016, the United States
filed a motion to dismiss the amended petition. ECF No. 43.
Rule of Civil Procedure 72(b)(3) provides for de novo review
of dispositive magistrate orders. Upon review of a
dispositive magistrate order, "[t]he district judge must
determine de novo any part of the magistrate judge's
disposition that has been properly objected to. The district
judge may accept, reject, or modify the recommended
disposition...." Fed.R.Civ.P. 72(b)(3); see also 28
U.S.C. Â§ 636(b)(1)(C) ("A judge of the court shall make
a de novo determination of those portions of the
[magistrate's] report or specified proposed findings or
recommendations to which objection is made.").
argues that because an amended petition addressing the second
summons has been filed, the United States' motion to
dismiss the original petition is "now inapplicable and
itself moot." ECF No. 38 at 7. The Court agrees and
GRANTS Maxcrest's motion for de novo determination.
light of Maxcrest's amended petition, the United
States' second motion to dismiss the original petition -
which was the subject of Judge Laporte's Report and
Recommendation - is moot. Cf. Lacey v. Maricopa
Cty., 693 F.3d 896, 927 (9th Cir. 2012) ("[T]he
general rule is that an amended complaint ...