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
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.
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
3. Prejudice to Plaintiff
For the reasons set forth above, the entry of default in this
action is hereby VACATED.
DEFENDANT'S MOTIONS TO DISMISS
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.
The Court will address each of Defendant's points in turn and
state pursuant to which Rule ...