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August 2, 2002


The opinion of the court was delivered by: Seybert, District Judge.

  This Court's Memorandum and Order, dated July 22, 2002, is hereby vacated in its entirety and amended as follows. Pending before the Court is Joan Harriman's ("Plaintiff"), motion pursuant to Fed.R.Civ.P. 15(c) to name the United States as Defendant instead of the Internal Revenue Service ("Defendant" or the "Government"), the Defendant's motion for an order pursuant to Fed.R.Civ.P. 55(c) to set aside the entry of default against the United States and Defendant's motion for an order pursuant to Fed.R.Civ.P. 12(b)(1) and/or 12(b)(6) dismissing Plaintiffs complaint.


Plaintiff commenced suit on July 24, 1996 by filing a complaint with this Court. As a basis for federal jurisdiction, Plaintiff asserted 28 U.S.C. § 1346(a)(1), 28 U.S.C. § 1331, 28 U.S.C. § 1396 and 28 U.S.C. § 1402(a)(1) and Sections 6502(a), 6331(d) and 6501(a) of the Internal Revenue Code. Plaintiffs complaint seeks to claim a refund for taxes levied for tax years 1973, 1976, 1980, 1987, 1990, 1992, 1993, and 1994, totaling $6,097.56, plus interest and damages in the amount of $100,000 for pain and suffering. Plaintiff also seeks a permanent injunction to prevent the Internal Revenue Service from applying any future tax overpayments to her tax lien. Plaintiff filed an amended complaint on August 7, 1996 to remedy a possible statute of limitations issue. Defendant subsequently requested an extension to answer from the Plaintiff and was denied. On February 25, 1999, Plaintiff made a request to have a default judgment entered against the government. The Clerk of the Court certified the default on February 25, 1999. Defendant subsequently requested that the Court schedule a pre-motion conference to discuss the government's motion to vacate the default. Plaintiff failed to appear at the initial conference and again failed to appear at a later scheduled conference. As a result, Defendant has moved to vacate the default judgment entered against it.


The Court will first address Defendant's motion to vacate the default pursuant to Fed.R.Civ.P. 55(c). Rule 55(c) permits this Court, in its discretion, "[f]or good cause shown . . . [to] set aside an entry of default. . . ." Fed.R.Civ.P. 55(c). The Government argues that this Court does not have jurisdiction over this action because the United States did not consent to suit in the manner in which Plaintiff has sued and has accordingly not waived its immunity. Defendant argues that this Court's lack of jurisdiction is good cause, as required by Rule 55(c), to set aside the default.

The Court never entered judgment of default so Fed.R.Civ.P. 60(b) does not apply to this action. This Court is bound to consider the following factors in determining whether an order vacating the entry of default is appropriate: "(1) whether the default was willful; (2) whether setting aside the default would prejudice the adversary; and (3) whether a meritorious defense is presented." Enron Oil Corp. v. Diakuhara, 10 F.3d 90, 96 (2d Cir. 1993). Moreover, this Court must take into consideration the fact that the Second Circuit has expressed a "preference for resolving disputes on the merits," and, therefore, all inferences should be resolved in favor of the defaulting party. Id. at 95, 96; see also Shah v. N.Y. State Dep't of Civil Serv., 168 F.3d 610, 615 (2d Cir. 1999).


Viewing all inferences in favor of Defendant, the defaulting party, for the reasons set forth below, the Court hereby vacates the entry of default.

1. Willfulness of the Default

Defendant argues that three separate attorneys' handled this case on behalf of the tax division, but fails to supply a reason for the government's failure to respond. Plaintiff argues that the fact that Defendant has done nothing for three years is per se willful. She further argues that pursuant to Fed.R.Civ.P. 60, Defendant's motion to vacate the default is barred by the one year statute of limitations set forth therein. However, as noted above, judgment of default was never entered in this case and accordingly, Rule 60 does not apply. Finally, Plaintiff states that Defendant's default was willful because Defendant has not "presented a meritorious defense to the court by providing any reasonable excuse for their negligence." Plaintiffs Cross-Motion to Uphold and Enforce Default Judgment Against Defendant, Pg. 1.

"Willfulness in the context of a default [is] conduct that is more than moraly negligent or careless." S.E.C. v. McNulty, 137 F.3d 732, 738 (2d Cir. 1998). Neither party has adequately provided an explanation of the default to show that it was willful. It seems that Plaintiff has admitted in her opposition to defendant's motion to vacate the default that the Defendant was negligent in its conduct. The Court finds the Government's handling of this case extremely poor to say the least, however, there is no evidence of willful conduct on the government's part with respect to the default.

2. Meritorious Defense

A meritorious defense need only consist of evidence, which if proven at trial, would constitute a complete defense. Williams v. Helbig, 208 F.R.D. 41, 44 (E.D.N.Y. 2002) (citing McNulty, 137 F.3d at 740) (quoting Enron Oil Corp., 10 F.3d at 98). Defendant argues that the statute of limitations and the doctrine of sovereign immunity bars Plaintiffs claims. Defendant asserts that the United States has not consented to be sued in the manner contemplated by the Plaintiff herein. If Defendant succeeds in its argument that sovereign immunity or the statute of limitations defenses apply, it would win the case. Plaintiff asserts that Defendant has waived its claim of lack of jurisdiction and its claim to sovereign immunity.

The Court finds that if Defendant adequately proves either of its defenses it will have two separate complete defenses. Accordingly, Defendant does have a meritorious defense to this action.

3. Prejudice to Plaintiff

For the reasons set forth above, the entry of default in this action is hereby VACATED.


Defendant has moved to dismiss the present action for the following reasons: (1) the United States has not consented to suit in the manner contemplated by the Plaintiff; (2) the Court lacks jurisdiction with respect to the 1987 income tax year due to the statute of limitations; (3) the Court lacks jurisdiction over Plaintiffs suit for refund with respect to years 1973, 1976, 1980, 1987, 1992, 1993 and 1994 because Plaintiff did not wait the requisite six month period pursuant to 26 U.S.C. § 6532 prior to commencing suit; (4) the Court lacks jurisdiction over Plaintiffs complaint as it relates to the 1980, 1990 and 1993 tax years because she has not fully paid the disputed assessed liabilities; (5) Plaintiffs demand for injunctive relief is barred by the Anti Injunction Act; (6) Plaintiff has failed to state a cause of action upon which relief may be granted as to years 1987 and 1992 because she paid no tax for either of those years; (7) Plaintiffs suit as it relates to the year 1980 is statutorily barred pursuant to § 6512 because she previously filed a petition with the United States Tax Court for that year; (8) Plaintiff is barred from proceeding on her demand for pain and suffering pursuant to § 7433 because she did not allege and cannot establish that she exhausted her administrative remedies; and (9) to the extent Plaintiff seeks tort damages, other than under § 7433, she is likewise barred under the Federal Tort Claims Act because she did not first file an administrative claim for such damages.

It is unclear, after a thorough review of Defendant's moving papers, pursuant to which Federal Rule of Civil Procedure Defendant makes each of its motions. The difference is significant because the Court may only consider the complaint and documents attached thereto or incorporated by reference when deciding a motion to dismiss pursuant to Rule 12(b)(6). However, when deciding a motion brought pursuant to Rule 12(b)(1), the Court can consider facts outside the pleadings. See Ghartey v. St. John's Queens Hosp., 869 F.2d 160, 162 (2d Cir. 1989). It seems that Defendant deems his statute of limitations arguments jurisdictional and, accordingly, has moved to dismiss pursuant to 12(b)(1) and that only number six above was brought pursuant to 12(b)(6). The Court recognizes and shall adhere to the Rule that a plaintiff proceeding pro se is entitled to have her complaint "held to less stringent standards than formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 596, 30 L.Ed.2d 652 (1972) (per curiam).

Generally, "[w]here the dates in a complaint show that an action is barred by a statute of limitations," it is appropriate for a defendant to move to dismiss pursuant to Fed.R.Civ.P. 12(b)(6). See Ghartey, 869 F.2d at 162; Mr. & Mrs. D. v. Southington Bd. of Educ., 119 F. Supp.2d 105, 107 (Conn. 2000); see also Joslin v. Grossman, 107 F. Supp.2d 150, 153 (Conn. 2000).

The Court will address each of Defendant's points in turn and state pursuant to which Rule ...

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