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Russell v. United States

January 29, 2009

KENNEDY M. RUSSELL, PLAINTIFF,
v.
UNITED STATES OF AMERICA, INTERNAL REVENUE SERVICE AND GLORIA J. THOMAS, DEFENDANTS.



The opinion of the court was delivered by: Reagan, District Judge

ORDER AND MEMORANDUM

I. Introduction and Procedural Overview

In March, 2008, Kennedy M. Russell, pro se, filed suit in this Court against the United States of America, the Internal Revenue Service and Gloria J. Thomas pursuant to various federal statutes and Illinois state law.

Russell claims that Thomas retaliated against him for previously filing suit in this Court against other IRS agents in her office. See Russell v. United States, Case No. 07-0084-WDS (S.D.Ill.). He submits that Thomas contacted him in violation of "Lawful protocol" by failing to provide him with specific information that he requested. Russell states that he informed Thomas that, because of his status as a "nontaxpayer," he was not subject to the tax code. Russell states that Thomas harassed him and violated his due process rights by telephoning him, appearing at his home, requesting information from his customers and issuing a summons to his bank. Russell seeks damages in the amount of $800,000.00.

Defendants move to dismiss Russell's action for lack of subject matter jurisdiction and failure to state a claim upon which relief may be granted (Doc. 30). Russell filed his response on December 1, 2008 (Doc. 32). For the reasons set forth below, the Court GRANTS Defendants' motion to dismiss.

II. Standard of Review

FEDERAL RULE OF CIVIL PROCEDURE 12(b)(6) governs motions to dismiss for failure to state a claim upon which relief can be granted. When considering a motion to dismiss for failure to state a claim, the Court accepts the plaintiff's allegations as true and construes all inferences in favor of the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Thompson v. Ill. Dep't of Prof. Regulation, 300 F.3d 750, 753 (7th Cir. 2002). As the Supreme Court explained inBell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1964 (2007), ". . . it is not enough for a complaint to avoid foreclosing possible bases for relief; it must actually suggest that the plaintiff has a right to relief, id. at 1968-69, by providing allegations that 'raise a right to relief above the speculative level." E.E.O.C. v. Concentra Health Services, Inc., 496 F.3d 773, 777 (7th Cir. 2007) (quoting Bell Atlantic, 127 S.Ct. at 1965).

Under the liberal notice pleading requirements of the federal rules, all that is required to state a claim "is a short statement, in plain . . . English, of the legal claim." Kirksey v. R.J. Reynolds Tobacco Co., 168 F.3d 1039, 1041 (7th Cir. 1999); FED.R.CIV.P.8(a)(2). "A full narrative is unnecessary." Id.; see also, e.g., Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002); McDonald v. Household International, Inc., 425 F.3d 424, 427-28 (7th Cir. 2005); Bartholet v. Reishauer A.G. (Zurich), 953 F.2d 1073, 1077-78 (7th Cir. 1992). Thus, Rule 12(b)(6) dismissal should be denied "if any facts that might be established within [a plaintiff's] allegations would permit a judgment for the plaintiff." Duda v. Board of Education of Franklin Park Public School District No. 84, 133 F.3d 1054, 1057 (7th Cir. 1998).

III. Analysis

Defendants contend that (1) the United States is the only properly named Defendant in this action; and (2) the Court does not have jurisdiction to grant the relief sought by Russell. The Court will address these contentions in turn.

A. The United States is the Only Properly Named Defendant

Defendants submit that the IRS is not a suable entity because Congress has not authorized suit against the agency in its own name. Russell makes no specific response to Defendants' contention. His only objection is that Defendants filed a motion to dismiss rather than an answer.

Rule 12 of the Federal Rules of Civil Procedure governs Russell's objection. The Rule provides, "Unless another time is specified by this rule or a federal statute, the time for serving a responsive pleading is as follows: ... [t]he United States, a United States agency, or a United States officer or employee ... must serve an answer to a complaint ... within 60 days after service on the United States attorney." FED.R.CIV.P. 12(a)(2). If a defendant files a motion under Rule 12, however, "the responsive pleading must be served 10 days after notice of the court's action." FED. R.CIV.P. 12(a)(4)(A). Stated a different way, because Defendants filed a motion to dismiss under Rule 12(b)(6), their answer would not due until 10 days after the Court's ruling on the motion to dismiss, should the motion be denied. Because Defendants' motion is appropriate under the Federal Rules of Civil Procedure, Russell's objection is without merit.

Agencies such as the IRS are not "suable" entities.See Blackmar v. Guerre, 342 U.S. 512, 514 (1952). "The general rule is that a suit is against the sovereign if the judgment sought would expend itself on the public treasury or domain, or interfere with the public administration, or if the effect of the judgment would be to restrain the Government from acting, or to compel it to act." Dugan v. Rank, 372 U.S. 609, 620 (1963) (internal quotation marks and citation omitted). If Russell were to prevail in this action, the damages he seeks would be expended from the public treasury. The suit is then against the "sovereign," i.e., the United ...


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