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Mensh v. United States

July 27, 2009

CHARLES E. MENSH, PRO SE , PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.



The opinion of the court was delivered by: Dora L. Irizarry United States District Judge

MEMORANDUM & ORDER

DORA L. IRIZARRY, United States District Judge

Pro se petitioner Charles E. Mensh filed this action under 26 U.S.C. § 7609 to quash two summonses issued by the Internal Revenue Service to Tradestation Securities Inc., and Citigroup to obtain petitioner's financial information. Respondent moves to dismiss this action under Fed. R. of Civ. P. 12(b)(1), (4), and (6). For the reasons set forth below, the motion is granted and the case is dismissed in its entirety.

I. Discussion

a. Legal Standards

On a motion to dismiss, the court accepts as true all well-pleaded factual allegations and draws all reasonable inferences in the plaintiff's favor. See Dangler v. New York City Off Track Betting Corp ., 193 F.3d 130, 138 (2d Cir. 1999). In Bell Atlantic Corp. v. Twombly , the Supreme Court created a new pleading standard that requires plaintiffs to "state a claim to relief that is plausible on its face." 550 U.S. 544, 547 (2007). To be facially plausible, a complaint cannot make merely "a formulaic recitation of the elements of a cause of action," but must allege facts that "raise a right of relief above the speculative level on the assumption that all allegations in the complaint are true (even if doubtful in fact)." Id. at 1964-65 (citations omitted). The Second Circuit interpreted Twombly to "requir[e] a flexible 'plausibility standard,' which obliges a pleader to amplify a claim with some factual allegations in those contexts where such amplification is needed to render the claim plausible ," rather than to mandate a "universal standard of heightened fact pleading." Iqbal v. Hasty , 490 F.3d 143, 157-58 (2d Cir. 2007) (emphasis added). For the purposes of this rule, the complaint is deemed to include writings and documents attached to it, referenced in it, or integral to it. See Fed. R. Civ. P. 10(c); Chambers v. Time Warner, Inc ., 282 F.3d 147, 152-53 (2d Cir. 2002). A document is "integral" to the complaint if "the complaint relies heavily upon its terms and effects." Chambers , 282 F.3d at 153 (internal quotation marks omitted).

Because petitioner is a pro se litigant, the court holds his pleadings to "less stringent standards than formal pleadings drafted by lawyers." Haines v. Kerner , 404 U.S. 519, 520 (1972). The court interprets the pleadings "to raise the strongest arguments that they suggest." Triestman v. Fed. Bureau of Prisons , 470 F.3d 471, 474 (2d Cir. 2006) (emphasis omitted).

b. The Motion to Dismiss is Timely

Petitioner argues that the court must reject the motion because respondent served it after the 60-day period under Fed. R. Civ. P. 12(a)(2). Specifically, petitioner argues that the motion "is incontrovertibly untimely by 6 days" given that:

(1) he mailed his papers on December 5, 2008; (2) 60 days from December 5, 2008 is February 3, 2008; and (3) respondent did not serve this motion until February 9, 2008. These facts do not preclude the court from considering the motion.

As an initial matter, respondent's motion is not untimely because petitioner improperly served respondent, and improper service does not start the 60-day period under Rule 12(a)(2). See Beckman v. Manfield , 3:06-CV-00689, 2008 WL 873382 (D.Nev. Mar. 27, 2008); Petry v. Cummings , CIV-82-551E, 1986 WL 671, at *4 n.1 (W.D.N.Y. Jan. 2, 1986); French v. Banco Nacional De Cuba , 192 F. Supp. 579, 581 (S.D.N.Y. 1961). "To serve the United States, a party must . . . deliver a copy of the summons and of the complaint . . . ." Fed. R. Civ. P. 4(i)(1) (emphasis added). Petitioner did not serve a copy of the summons, and therefore, service was improper.

Even assuming that service had been proper, respondent's motion would have been late only by two days,*fn1 and such a minor technical violation would not warrant a default judgment under Fed. R. Civ. P. 55. "The disposition of motions for entries of default and default judgments and relief from the same under Rule 55(c) are left to the sound discretion of a district court," Enron Oil Corp. v. Diakuhara , 10 F.3d 90, 95 (2d Cir. 1993), and "district courts regularly exercise their discretion to deny technically valid motions for default." Sony Corp. v. Elm State Elecs., Inc. , 800 F.2d 317, 319 (2d Cir. 1986). In exercising this discretion, district courts consider equitable factors including: "(1) whether the default was willful; (2) whether setting aside the default would prejudice the adversary; and (3) whether a meritorious defense is presented." Diakuhara , 10 F.3d at 96. "[B]ecause defaults are generally disfavored and are reserved for rare occasions, when doubt exists as to whether a default should be granted or vacated, the doubt should be resolved in favor of the defaulting party." Id .

Here, petitioner did not seek an entry of default, but even if he could and did assert a technically valid motion for default, the equities would not weigh in his favor. Respondent's untimeliness was not willful, but rather resulted from a misunderstanding of when the 63-day period began. Petitioner has not argued, and there is no basis to believe, that this brief delay in receiving respondent's motion somehow prejudiced him. Moreover, as explained below, petitioner's claims are baseless, and, therefore, it is in the interest of judicial economy to dispose of this action at the earliest possible stage. Under these circumstances, respondent's two-day delay is excused and the court will address the merits of this motion. See Totalplan Corp. of America v. Lure Camera Ltd. , 613 F. Supp. 451, 456 (W.D.N.Y. 1985) (citing Meehan v. Snow , 652 F.2d 274 (2d Cir. 1981)).

c. The Court Lacks Subject Matter Jurisdiction over the Petition to Quash the Summons that the ...


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