Pelletier v. United States of America
- Proceeding
- district
- Area
- civil
- Panel
- Malcolm F. Marsh (author)
Analysis
Plaintiff moved to stay IRS audits and compel answers to questions, but the court noted that the individual defendants had not been properly served. The court denied the motion and vacated the hearing because it lacked personal jurisdiction over the defendants.
| What the court decided | The model |
|---|---|
Denial of Plaintiff's Motion to Stay Audits and Direct Answers“Thus, the Court DENIES Plaintiff's motion to stay the IRS audit pending an adjudication of the pending case and order compelling Defendants to answer questions.” | agree with court The court correctly identified that personal jurisdiction is a prerequisite for exercising authority over a party. Since the record indicates the defendants were not served in accordance with Rule 4, the court lacked the power to issue an order compelling them to act or to stay proceedings against them. The decision follows logically from the jurisdictional defect. |
Vacatur of Hearing“The Court VACATES the hearing set on March 19, 2021.” | agree with court Because the underlying motion was denied for lack of jurisdiction, the associated hearing was moot and properly vacated. |
The order itself: sound — The order is procedurally sound. It correctly applies the fundamental principle that personal jurisdiction requires proper service of process. The court relied on binding Ninth Circuit precedent to support its conclusion that it could not grant the requested relief against unserved defendants. The reasoning is concise and directly addresses the jurisdictional bar.
Opinion
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 GAETAN PELLETIER, Case No.: 20cv1805-GPC(DEB)
12 Plaintiff, ORDER DENYING PLAINTIFF’S 13 v. MOTION TO STAY AUDITS UNTIL PENDING CASE HAS BEEN 14 UNITED STATES OF AMERICA; ADJUDICATED AND DIRECTING INTERNAL REVENUE SERVICE; 15 DEFENDANTS TO ANSWER ROSEMARY TRIZZINO; CHIA QUESTIONS 16 CHANG AND KEITH KAWAMOTO, 17 Defendants. [Dkt. No. 28.] 18 19 Before the Court is Plaintiff’s motion to stay the IRS audits until the pending case 20 has been adjudicated and seeks a court order directing the IRS to provide answers to 21 questions attached to his motion. (Dkt. No. 28.) Defendants United States of America 22 and Internal Revenue Service filed an opposition. (Dkt. No. 31.) No reply was filed by 23 Plaintiff. Based on the reasoning below, the Court DENIES Plaintiff’s motion to stay 24 the IRS audits and directing the IRS to answer questions. 25 On September 14, 2020, Plaintiff Gaetan Pelletier (“Plaintiff” or “Pelletier”) 26 proceeding pro se, filed a complaint against Defendants United States of America and the 27 Internal Revenue Service (“IRS”). (Dkt. No. 1, Compl.) He then filed a first amended 28 complaint (“FAC”) on October 5, 2020 adding individual named defendants Rosemary 1 Trizzino (“Trizzino”), Keith Kawamoto (“Kawamoto”), and Chia Chang (“Chang”) 2 (collectively “Defendants”), employees of the IRS involved in the tax audit of Plaintiff. 3 (Dkt. No. 4.) 4 The FAC alleges that the IRS is conducting a tax audit of Plaintiff and his wife’s 5 personal 1040 tax years for 2015-2018 which is in violation of the Taxpayers Bill of 6 Rights of 1987 and a number of statutory violations. (Dkt. No. 4, FAC ¶¶ 1-2.) He 7 maintains Chang, Kawamoto and Trizzino, three employees of the IRS, who were 8 involved in his audit, violated their fiduciary duties giving rise to a contract or implied 9 contract which is the Constitution. (Id. ¶ 2.) The FAC alleges breach of contract against 10 all defendants except Chang, (id. ¶¶ 39-43); breach of fiduciary implied contract against 11 all defendants except the IRS, (id. ¶¶ 44-47); negligence against all defendants, (id. ¶¶ 12 48-52); emotional distress against Chang, Kawamoto and Trizzino, (id. ¶¶ 53-58); civil 13 conspiracy against Chang, Kawamoto and Trizzino, (id. ¶¶ 59-64); and declaratory 14 judgment, (id. ¶¶ 65-71). Plaintiff seeks injunctive and declaratory relief as well as 15 monetary damages. (Id. at 23, 24.1) 16 On November 3, 2020, Plaintiff filed a request for entry of default against Chang, 17 Kawamoto and Trizzino which the Clerk of Court granted. (Dkt. Nos. 9, 10.) 18 Subsequently, Plaintiff filed a motion for default judgment and Defendants filed a motion 19 to set aside the default. (Dkt. Nos. 12, 15.) On January 19, 2021, the Court granted 20 Defendants’ motion to set aside default and denied Plaintiff’s motion for default 21 judgment. (Dkt. No. 28.) The Court concluded that Defendants were not properly served 22 under Federal Rule of Civil Procedure 4 and directed Plaintiff to serve Defendants in 23 accordance with Rule 4 within 20 days of the Court’s order or February 8, 2021. (Id. at 5- 24 7, 9.) 25 26 27 28 1 The docket does not reflect that Defendants have been served. In response to the 2 Court’s briefing schedule on Plaintiff's motion, Defendants filed an opposition and assert 3 || that they had not yet been served. (Dkt. No. 31.) 4 “A federal court does not have jurisdiction over a defendant unless the defendant 5 been served properly under Fed. R. Civ. P. 4.” Direct Mail Specialists, Inc. v. Eclat 6 || Computerized Techs., Inc., 840 F.2d 685, 688 (9th Cir. 1988) (citing Jackson v. 7 || Hayakawa, 682 F.2d 1344, 1347 (9th Cir. 1982)). Here, because Defendants have not 8 || been served, the Court does not have jurisdiction over Defendants. See id. Thus, the 9 Court DENIES Plaintiff's motion to stay the IRS audit pending an adjudication of the 10 || pending case and order compelling Defendants to answer questions. The Court 11 || VACATES the hearing set on March 19, 2021. 12 IT IS SO ORDERED. 13 Dated: March 15, 2021 =< 15 United States District Judge 16 17 18 19 20 21 22 23 24 25 26 27 28