Opinion
1:15-cv-00418-LJO-SAB
07-13-2015
UNITED STATES OF AMERICA, Petitioner, v. JAMES W. WITT, Respondent.
BENJAMIN B. WAGNER United States Attorney BOBBIE J. MONTOYA Assistant United States Attorney Eastern District of California 501 I Street, Suite 10-100 Sacramento, CA 95814-2322 Telephone: (916) 554-2775 Facsimile: (916) 554-2900 email: bobbie.montyoa@usdoj.gov Attorneys for Petitioner United States of America
BENJAMIN B. WAGNER
United States Attorney
BOBBIE J. MONTOYA
Assistant United States Attorney
Eastern District of California
501 I Street, Suite 10-100
Sacramento, CA 95814-2322
Telephone: (916) 554-2775
Facsimile: (916) 554-2900
email: bobbie.montyoa@usdoj.gov
Attorneys for Petitioner United States of America AMENDED ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND ENFORCING I.R.S. SUMMONS (ECF Nos. 7, 8)
Pursuant to Fed. R. Civ. P. 60(a), which permits the Court to correct clerical mistakes, this Amended Order corrects and supersedes the Order entered July 6, 2015, which stated on the second page the incorrect name for the Respondent. In addition, the July 6, 2015 Order directed the Clerk of Court to close this case. The Amended Order directs the Clerk of Court to re-open the case, pending the filing of a Notice of Compliance and Request for Closure or any other appropriate motion.
The United States petitioned for enforcement of an I.R.S. summons issued July 29, 2014, to secure information needed to collect assessed federal income taxes (Form 1040) for tax years ending December 31, 1997, December 31, 2003, December 31, 2004, December 31, 2005, December 31, 2006, December 31, 2007, and December 31, 2008. (ECF No. 1.) The matter was referred to United States Magistrate Judge Stanley A. Boone pursuant to 28 U.S.C. § 636, et seq. and Local Rule 72-302.
On March 20, 2015, the magistrate judge ordered Respondent James W. Witt ("Respondent") to show cause why the I.R.S. summons issued to him on July 29, 2014, should not be enforced. (ECF No. 5.) The Petitioner served Respondent with the Verified Petition (ECF No. 1), Points and Authorities (ECF No. 3-1), and a certified copy of the Order to Show Cause (ECF No. 5) in conformity with Fed. R. Civ. P. 4. (ECF No. 6.) On May 15, 2015, Respondent filed a motion to dismiss. (ECF No. 7.)
On June 3, 2015, the magistrate judge assigned to this action, finding that the summons enforcement requirements had been satisfied, issued a Findings and Recommendations recommending that Petitioner United States of America's petition to enforce the I.R.S. summons be granted. (ECF No. 8.) The Findings and Recommendations contained notice that any objections were to be filed within twenty-one (21) days. The Clerk of Court served Respondent by mail with the Findings and Recommendations on June 3, 2015. Respondent filed objections on June 24, 2015. (ECF No. 10.)
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this Court has conducted a de novo review of this case. Having carefully reviewed the entire file, the Court finds that the Findings and Recommendation are supported by the record and proper analysis, and determines that the summons enforcement is properly granted.
Respondent argues that the magistrate judge "breached procedure" by construing Respondent's motion to dismiss (ECF No. 7) as a brief in opposition to the petitioner to enforce the I.R.S. summons. This argument has no merit. By construing Respondent's motion to dismiss as an opposition, the magistrate judge construed Respondent's filing in a light most favorable to Respondent. Notably, on March 20, 2015, the Court ordered Respondent to file an opposition to the petition at least ten (10) days before the show cause hearing scheduled for June 10, 2015. See ECF No. 5. Respondent failed to file anything that could be construed as an opposition other than the motion to dismiss. Accordingly, if the magistrate judge had not construed the motion to dismiss as an opposition, Respondent would have been in violation of the Court's March 20, 2015 order by failing to file a written opposition and the petition would have been deemed unopposed.
Respondent also argues that United States Magistrate Judge Stanley A. Boone was biased because Petitioner is represented by the United States Attorney's Office and "[Judge] Boone is a US attorney." Respondent's argument is factually incorrect, as Judge Boone is not a U.S. Attorney. While Judge Boone was formerly employed by the United States Attorney's Office, he is only required to recuse himself from cases on which he actually participated. 28 U.S.C. § 455(b)(3); see also U.S. v. Champlin, 388 F. Supp. 2d 1177, 1181 (D. Haw. 2005) (judge who was formerly an Assistant United States Attorney only disqualified from cases on which he or she actually participated). There is no indication that Judge Boone participated in the prosecution of this action while he was at the United States Attorney's Office.
The remaining arguments raised in Respondent's opposition are frivolous and were addressed in the Findings and Recommendations. (ECF No. 8.) Petitioner's petition was supported by adequate evidence - namely, the Declaration of Revenue Officer Evan D. Moses. (ECF No. 1, at p. 8.) Respondent fails to demonstrate an abuse of process of lack of institutional good faith. See, U.S. v. Dynavac, Inc., 6 F.3d 1407, 1414 (9th Cir. 1993).
Accordingly, it is HEREBY ORDERED that:
1. The Magistrate Judge's Findings and Recommendations Re: I.R.S. Summons Enforcement, filed June 3, 2015, are hereby ADOPTED IN FULL (ECF No. 8);IT IS SO ORDERED.
2. Respondent's motion to dismiss is DENIED (ECF No. 7);
3. The I.R.S. summons issued to Respondent on July 29, 2014 is hereby ENFORCED;
4. Respondent James W. Witt is ordered to appear before investigating Revenue Officer Evan D. Moses, or his designated representative, at the I.R.S. offices at 2525 Capitol Street, Suite 205, Fresno, California 93721-2227, twenty-one (21) days after the issuance of this order, at 10:00 a.m., or such later date and time to be set in writing by Revenue Officer Moses, then and there to be sworn, to give testimony, and to produce for examination and copying the books, checks, records,
papers and other data demanded by the summons. The examination shall continue from day to day until completed.
5. The Clerk of Court is directed to re-open this case and to serve this and future orders by mail to Mr. James W. Witt, 1343 N. 10th Avenue, Hanford, CA 93230.
Dated: July 13 , 2015
/s/ Lawrence J. O'Neill
UNITED STATES DISTRICT JUDGE