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 REGARDING MOTION TO DISMISS
Before the Court at Docket 6 is Defendant United States of America’s Motion
to (1) Substitute the United States as Defendant, and (2) Dismiss the Complaint.
The Court previously granted the motion to substitute defendant.1 Plaintiff Festus
O. Ohan responded in opposition to the motion to dismiss at Docket 8 and filed
additional documents at Dockets 9, 11, and 12. Defendant replied at Docket 10.
Defendant asserts that the complaint should be dismissed for lack of
subject-matter jurisdiction and for failing to “present sufficient factual allegations to
state a plausible claim for relief.”2 Specifically, Defendant contends that the
complaint should be dismissed pursuant to Federal Rule of Civil Procedure
12(b)(1) because Plaintiff has not met two jurisdictional requirements: paying the
1 Docket 7.
2 Docket 6 at 5.
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assessed tax in full and filing an administrative refund claim.3 Defendant also
contends that the complaint does not meet the pleading requirements set forth in
Twombly/Iqbal because “[a]nyone reviewing the documents and handwritten notes
[filed by Plaintiff] would find it impossible to discern Ohan’s cause of action.”4
Plaintiff responds by submitting a marked-up fax cover sheet, miscellaneous
documents that appear unrelated to this case, and a copy of pages from the Court’s
previous order and Defendant’s motion to dismiss that are covered in Plaintiff’s
hand-written annotations.5 The annotations are often illegible or unintelligible or
unrelated to this case.
I. The complaint does not state a viable claim.
A complaint must contain “a short and plain statement of the claim showing
that the pleader is entitled to relief.”6 Detailed factual allegations are not required,
but “[t]hreadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.”7 Plaintiff's complaint is not a short and
plain statement of his claims and fails to clearly identify each individual claim or
the facts giving rise to each claim. Instead, the Complaint consists of a one-
3 Docket 6 at 4.
4 Docket 6 at 6, n. 5.
5 Docket 8; see also Dockets 9, 11, and 12 (Plaintiff’s additional filings).
6 Fed. R. Civ. P. 8(a)(2).
7 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
555 (2007)).
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Order Re Motion to Dismiss
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sentence conclusory statement, approximately ten pages of e-mails from Plaintiff
to various entities, copies of orders of the United States Tax Court, and a letter
from the IRS to Plaintiff.8
Defendant has moved to dismiss pursuant to Rule 12(b)(6) because the
complaint does not “state a claim upon which relief can be granted.”9 To survive
the motion to dismiss, the allegations in the complaint “must be enough to raise a
right to relief above the speculative level.”10 A complaint may be dismissed as a
matter of law either for lack of a cognizable legal theory or for insufficient facts
under a cognizable theory.11 In evaluating the motion, the Court must assume the
truth of all factual allegations and must “construe them in light most favorable to
the nonmoving party.”12
The Court is not required to sift through Plaintiff's e-mails and other
documents in search of viable claims.13 Plaintiff is responsible for clearly stating
8 Docket 1-4.
9 Docket 6 at 3 (citing Fed. R. Civ. P. 12(b)(6)).
10 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
11 Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 534 (9th Cir. 1984).
12 Gompper v. VISX, Inc., 298 F.3d 893, 895 (9th Cir. 2002).
13 Independent Towers of Wash. v. Wash., 350 F.3d 925, 929 (9th Cir. 2003); Greenwood v. Fed.
Aviation Admin., 28 F.3d 971, 977 (9th Cir. 1994). Defendant interprets the complaint “to
request a refund of three federal tax payments: (1) the $1,479.38 overpayment from 2019 that
was credited to 2008, (2) the $5,000 ‘fine’ [unpaid penalty] for 2017, and (3) a $1,606
garnishment of Ohan’s 2018 Permanent Fund dividend” that was also credited toward taxes
owing from 2008. Docket 6 at 3.
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Order Re Motion to Dismiss
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his claims in his complaint. As discussed below, the Court’s jurisdiction depends
on knowing with specificity what Plaintiff is claiming because the Court will need to
assess whether Plaintiff’s prior communications with the IRS qualify as an
administrative claim for a refund as to specific claims.14 For the foregoing reasons,
the Court grants Defendant’s motion to dismiss without prejudice to Plaintiff to
amend, except as discussed below.
II. The Court lacks subject matter jurisdiction regarding the $5,000
penalty.
Federal Rule of Civil Procedure 12(b)(1) authorizes a district court to dismiss
claims over which it lacks subject-matter jurisdiction. “Ordinarily, there is no
jurisdiction in the district courts over suits for the refund of penalty amounts paid
until the taxpayer has paid the full amount of the contested penalty assessment . .
. and has filed a claim for refund which the IRS has either rejected or not acted
upon in six months.”15
Here, to overcome Defendant’s jurisdictional challenge related to the $5,000
penalty claim, Plaintiff must demonstrate that (1) he has paid the penalty and (2)
he timely filed a claim for a refund of the penalty payment with the Secretary of the
Treasury or the Secretary’s delegate. The Court finds that Plaintiff has not shown
14 See, e.g., Docket 11 at 15–18; Docket 12 at 4–8. Cf. Johnson v. United States, Case No.
2:19-cv-01561-TLN-JDP, 2021 WL 4480937, at *3 (E.D. Cal. Sept. 30, 2021) and cases cited
therein (explaining standards for the sufficiency of an informal claim).
15 Thomas v. United States, 755 F.2d 728 (9th Cir. 1985) (citations omitted).
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that he has paid the $5,000 penalty.16 Thus, the jurisdictional prerequisites were
not met, divesting this Court of subject-matter jurisdiction over the $5,000 penalty
claim. Plaintiff’s claim relating to the $5,000 penalty for 2017 is dismissed with
prejudice.
CONCLUSION
In light of the foregoing, IT IS ORDERED the Motion to Dismiss at Docket 6
is GRANTED with regard to the 2017 $5,000 penalty claim, which is DISMISSED
with prejudice. The remainder of the Motion to Dismiss is DISMISSED without
prejudice and leave to amend is granted. IT IS THEREFORE ORDERED:
1. Plaintiff has until May 31, 2022, to file one of the following:
a. Amended Complaint, in which Plaintiff shall restate some or all of
his claims after correcting each of the deficiencies in accordance
16 The Court previously informed Plaintiff that it was his burden to show that the Court has
subject-matter jurisdiction and directed Plaintiff to “submit affidavits or other evidence to
demonstrate that this Court has subject matter jurisdiction.” Docket 7 at 2. Plaintiff has not
done so.
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with this order. An amended complaint would replace the current
complaint in its entirety; OR
b. Notice of Voluntary Dismissal, which would inform the Court that
Plaintiff no longer wishes to pursue his lawsuit and will result in the
dismissal of the entire action.
2. Any Amended Complaint should be on this Court’s form, which is being
provided to Plaintiff with this Order. As discussed above, an amended
complaint will replace the prior complaint in its entirety. An amended
complaint must include all of the claims Plaintiff seeks to bring. Any
claims not included in the amended complaint will be considered waived.
3. If Plaintiff does not file either an Amended Complaint or a Notice of
Voluntary Dismissal on the Court form by May 31, 2022, this case will be
DISMISSED WITH PREJUDICE.
4. Each litigant is responsible for keeping a copy of each document filed
with the Court. When a litigant mails a document to the Court, the litigant
will receive a Notice of Electronic Filing (“NEF”) from the Court that will
indicate when that document was filed on the docket and the docket
number of the document. Copies of documents that have been filed with
the Court may be obtained from the Clerk’s Office for $0.50 per page. In
the event of special circumstances or serious financial need, a party may
file a motion asking for the cost of copies to be waived or reduced.
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5. At all times, Plaintiff must keep the Court informed of any change of
address. Such notice shall be titled “NOTICE OF CHANGE OF
ADDRESS.” This notice must not include any requests for any other
relief, and it must be served on any Defendant’s attorney who makes an
appearance in this case. Failure to file a notice of change of address
may result in the dismissal of this case under Rule 41(b) of the Federal
Rules of Civil Procedure.
6. The Clerk of Court is directed to send Plaintiff the following forms with
this Order: (1) form PS09, Notice of Voluntary Dismissal; (3) form PS23,
Notice of Change of Address; and (4) the District Court’s handbook,
“REPRESENTING YOURSELF IN ALASKA’S FEDERAL COURT.”
DATED this 2nd day of May, 2022, at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE
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