Opinion
CASE NO. CV-F-01-5246 OWW LJO
April 27, 2001
ORDER ON PETITION TO REMAND TO STATE COURT (Doe. 5.)
INTRODUCTION
Petitioner Glen Dale: Bell ("petitioner") appears in propria persona in this purported action to discharge an Internal Revenue Service ("IRS") lien and seeks to remand this action to the Stanislaus County Superior Court. This Court set a hearing on the petition to remand for April 27, 2001 at 8:30 a.m. in Department 6 of this Court. Petitioner appeared by telephone for himself The United States of America ("Government") appeared by telephone by G. Patrick Jennings, Trial Attorney, Tax Division, U.S. Department of Justice.
For the reasons discussed below, this Court DENIES the petition to remand this action to the Stanislaus County Superior Court.
BACKGROUND
In 1994 and 1995, the IRS recorded notices of federal tax liens with the Stanislaus County Recorder's Office against real property of petitioner and his wife. In a related action in this Court entitled United States v. Glen P. Bell, Jeanette Bell, et al, CV-F.95-5346 OWW SMS, the Government reduced tax liabilities subject to the tax liens to an October 23, 1998 judgment. The judgment ordered the federal tax liens foreclosed and that petitioner's property be sold. There was a December 29, 2000 public sale of the property, and the sale was confirmed by this Court's January 18, 2001 order.
On December 4, 2000, petitioner had filed his Complaint To Discharge Lien By Cancellation ("complaint") in Stanislaus County Superior Court to seek to cancel the federal tax liens. On January 17, 2001, the IRS San Jose Office of District Director received by mail a copy of petitioner's complaint. The proof of service for the summons indicates the summons and complaint were served by certified or registered mail under California Code of Civil Procedure section 415.40. However, the proof of service is neither signed nor dated and does not indicate the date of purported service. On March 1, 2001, the Government filed with this Court its notice of removal of petitioner's state court action to this Court. On March 15, 2001, petitioner filed his Notice of Nonacceptance of Removal and Petition to Remand Case Back to State Jurisdiction ("petition") to challenge the Government's removal.
Petitioner contends the removal is defective because this Court lacks subject matter jurisdiction in that this is an in rem action involving the legality of a tax assessment and right to possession of real property in Stanislaus County over which the Stanislaus County Superior Court has exclusive jurisdiction. Petitioner asserts this action operates upon a paper in possession of the clerk of the Stanislaus County Superior Court and adjudication of this action requires an order from the Stanislaus County Superior Court which is beyond this Court's jurisdiction. Petitioner further contends the Government filed its notice of removal beyond the 30-day limit of 28 U.S.C. § 1446(b) and the Government's receipt of a copy of the complaint by any means commences the 30-day removal period.
The Government contends petitioner has not effected service on the Government or IRS to commence the running of the 30-day limit for removal in that petitioner failed to serve the complaint on the Attorney General and United States Attorney for the Eastern District of California as required by F.R.Civ.P. 4(i). The Government argues the petition attempts to frivolously relitigate matters previously decided by this Court.
DISCUSSION
This Court finds the only issue raised by petitioner and worthy of serious discussion is the timeliness of the Government's notice of removal. 28 U.S.C. § 1446(b) addresses the procedure for removal:
The notice of removal of a civil action or proceeding shall be filed within thirty ways after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding as based, or within thirty days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter. (Emphasis added.)
Here the question arises whether the Government was effectively served. Although 28 U.S.C. § 1446(b) states the time for removal runs from a defendant's receipt of the complaint "by service or otherwise," the removal period is triggered only when the defendant is properly served and thus subject to a court's jurisdiction. Receipt of a complaint by other means is insufficient. Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 354-355, 119 S.Ct. 1322, 1328-1329 (1999) (faxed file-stamped copy of complaint did not trigger removal period). The Supreme Court's interpretation of 28 U.S.C. § 1446(b) "adheres to tradition, makes sense of the phrase 'or otherwise,' and assures defendants adequate time to decide whether to remove an action to federal court." Murphy Bros., 526 U.S. at 354, 119 S.Ct. at 1328. "[I]f the complaint is filed in court prior to any service, the removal period runs from the service of the summons." Murphy Bros., 526 U.S. at 354, 119 S.Ct. at 1329.
F.R.Civ.P. 4(i) governs service on the United States and its agencies and provides in pertinent part:
(1) Service upon the United States shall be effected
(A) by delivering a copy of the summons and of the complaint to the United States attorney for the district in which the action is brought or to an assistant United States attorney or clerical employee designated by the United States attorney in writing filed with the clerk of the court or by sending a copy of the summons and of the complaint by registered or certified mail addressed to the civil process clerk at the office of the United States attorney and
(B) by also sending a copy of the summons and of the complaint by registered or certified mail to the Attorney General of the United States at Washington, District of Columbia . . .
(2) Service upon an officer, agency, or corporation of the United States, shall be effected by serving the United States in the manner prescribed by paragraph (1) of this subdivision and by also sending a copy of the summons and of the complaint by registered or certified mail to the officer, agency or corporation.
There is no showing petitioner completed service pursuant to F.R.Civ.P. 4(i)(A) and (B). At best, petitioner merely mailed a copy of the complaint to the IRS San Jose office. He failed to serve the Attorney General or United States Attorney for the Eastern District of California to complete service. Technically, neither the Government nor IRS has been effectively served to start the running of the 30 day limit. The Government's notice of removal is timely.
Moreover, a court need not remand when "the remand to state court would be futile." See Bell v. City of Kellog, 922 F.2d 1418, 1424 (1991); M.A.I.N. it. Commissioner, Maine Dept of Human Servs., 876 F.2d 1051, 1054 (1st Cir. 1989). The Government is poised to seek dismissal and summary judgment in this Court based on res judicata grounds. Remand would provide no benefit in that this Court has already determined the issues subject to petitioner's complaint.
Lastly, this Court finds petitioner's papers spurious and filled with tax protester gibberish. There is no doubt this Court has subject matter jurisdiction of this federal tax collection matter which was litigated in and determined by this Court. The petition is a waste of the time and resources of this Court and Government. This Court resists its temptation to pursue sanctions against petitioner under F.R.Civ.P. 11(c)(1)(B). Petitioner is admonished this Court will not tolerate further frivolous papers or actions such as those present here.
CONCLUSION AND ORDER
For the reasons discussed above, this Court DENIES the petition to remand this action to the Stanislaus County Superior Court.