Ohan v. Rettig

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
FESTUS O. OHAN,
Plaintiff,
v.
UNITED STATES OF AMERICA,
Defendant.
Case No. 3:22-cv-00011-SLG
ORDER RE: MOTION TO DISMISS
At Docket 6, Defendant has filed a Motion to (1) Substitute the United States
as Defendant, and (2) Dismiss the Complaint. Defendant’s motion seeks to
substitute the United States of America as the sole Defendant in this action.1
Additionally, Defendants move to dismiss pursuant to Rules 12(b)(1) and 12(b)(6)
of Federal Civil Procedure and relies an affidavit of an IRS Advisor and attached
IRS Transcript.2
Under Rule 12(b)(1), a defendant may move to dismiss a complaint for lack
of subject matter jurisdiction either by a “facial” or “factual” attack.3 In a factual
attack, a defendant presents evidence outside of the pleadings to demonstrate that
1 Docket 6 at 3. The complaint names Charles Rettig, IRS Commissioner, as the
Defendant.
2 Docket 6 at 4–6.
3 White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000).
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3:22-cv-00011-SLG, Ohan v. Rettig.
Order Re: Motion to Dismiss
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the Court lacks subject matter jurisdiction over the complaint based on the facts of
the case.4 When resolving a factual attack on jurisdiction, a court “need not
presume the truthfulness of the plaintiff's allegations.”5 Once a defendant presents
a factual attack, the plaintiff “must furnish affidavits or other evidence necessary to
satisfy its burden of establishing subject matter jurisdiction.”6 “The plaintiff bears
the burden of proving by a preponderance of the evidence that each of the
requirements for subject-matter jurisdiction has been met.”7
Here, Defendant asserts that the Court lacks subject matter jurisdiction over
Plaintiff’s complaint because Plaintiff has not paid the assessed taxes in full and
did not file an administrative refund claim with respect to the penalties that the IRS
levied against him. See Docket 6 at 4, citing Flora v. United States, 357 U.S. 63
(1958).
Accordingly, Plaintiff may submit affidavits or other evidence in order to
demonstrate that this Court has subject matter jurisdiction. Local Civil Rule 7.4
4 Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004) (quoting Safe Air for Everyone
v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004)).
5 Leite v. Crane Co., 749 F.3d 1117, 1121 (9th Cir. 2014); Wolfe, 392 F.3d at 362; Safe
Air for Everyone, 373 F.3d at 1039.
6 Safe Air for Everyone, 373 F.3d at 1039 (quoting Savage v. Glendale Union High Sch.,
343 F.3d 1036, 1039 n.2 (9th Cir. 2003)).
7 Leite, 749 F.3d at 1121 (citing Harris v. Rand, 682 F.3d 846, 851 (9th Cir. 2012)).
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3:22-cv-00011-SLG, Ohan v. Rettig.
Order Re: Motion to Dismiss
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requires that unless otherwise ordered, opposition memoranda must not exceed
35 pages or 10,000 words.
IT IS THEREFORE ORDERED:
1. Defendant’s Motion to Substitute at Docket 6 is GRANTED. The Clerk
of Court shall amend the caption as set forth in this order to reflect that
United States of America is the sole Defendant in this action.
2. Plaintiff has until on or before 21 days after the date of this order to
serve and file on Defendant any opposition and relevant supporting
evidence to Defendant’s Motion to Dismiss the Complaint at Docket 6.
3. Defendant has until 14 days after service of the Plaintiff’s opposition to
serve and file a reply.
DATED this 3rd day of March, 2022, at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE
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