2:20-cv-00090 – Glenda Johnson v. Internal Revenue Service et al

Plaintiff, Glenda E. Johnson (Plaintiff), is an individual residing in Utah County whose constitutional rights have been abridged by the Defendants acting in concert with one another to deprive her of her rights and to injure him.

020

JUDGMENT IN A CIVIL CASE: Plaintiff's action against Defendants is dismissed without prejudice. Case Closed. Magistrate Judge Daphne A. Oberg no longer assigned to case. Signed by Judge Howard C. Nielson, Jr on 2/16/21.

019

DOCKET TEXT ORDER

The court has carefully reviewed 17 Report and Recommendations and 18 Objection to the Report and Recommendations. While Ms. Johnson's Objections fail to identify any errors in Magistrate Judge Oberg's Report and Recommendations, the court is not convinced that whether Ms. Johnson falls within the class of plaintiffs authorized to bring an independent action under Federal Rule of Civil Procedure 60 is a question of standing or that no relief the court could order if Plaintiff were to prevail on her claims would redress Plaintiff's injuries. (The court agrees, however, that it lacks jurisdiction to revisit Judge Nuffer's decision except as authorized or recognized by Rule 60; appellate jurisdiction over that decision is instead vested in the court of appeals. See 28 U.S.C. §§ 129192.)

Recent Supreme Court precedent strongly suggests that whether Ms. Johnson falls within the class of plaintiffs authorized to sue under Rule 60 goes to whether she has a cause of action, not to whether she has standing. See Lexmark International, Inc. v. Static Control Components, Inc., 572 U.S. 118, 12728 (2014). If that is correct, the issue goes to the merits of Plaintiff's claim, not to this court's subject matter jurisdiction. See id. Nevertheless, the authorities cited by Judge Oberg do establish that Ms. Johnson is not authorized to bring an independent action under Rule 60. And although both Defendant and Judge Oberg analyzed the deficiencies of Ms. Johnson's complaint under the rubric of Federal Civil Procedure 12(b)(1) and subject matter jurisdiction, the court may sua sponte dismiss an action under Federal Rule of 12(b)(6) for failure to state a claim upon which relief can be granted. See, e.g., Curley v. Perry, 246 F.3d 1278, 128384 (10th Cir. 2001). Given Ms. Johnson's failure to offer any meaningful response to Judge Oberg's conclusion that Ms. Johnson is not among the class of plaintiffs authorized to sue under Rule 60, the court holds that dismissal is appropriate here. Especially given these unusual procedural circumstances, the court further holds that dismissal should be without prejudice. Cf. Phillips v. Public Service Co. of New Mexico, 2003 WL 191461 *2 (10th Cir. 2003).

The court accordingly OVERRULES 18 Objection to Report and Recommendations, ADOPTS 17 Report and Recommendations in part, and DISMISSES this action WITHOUT PREJUDICE. SO ORDERED.

Signed by Judge Howard C. Nielson, Jr., on 2/16/2021. (jcp) (Entered: 02/16/2021)

018

OBJECTION to 17 Report and Recommendations filed by Glenda E. Johnson. (jwt) (Entered: 02/12/2021)

017

REPORT AND RECOMMENDATIONS to Grant 7 Motion to Dismiss Without Prejudice: The undersigned RECOMMENDS the district judge GRANT the Motion to Dismiss (Doc. No. 7 ) and DISMISS Ms. Johnson's Complaint without prejudice for lack of standing (Doc. No. 1 -2).

The court will send copies of this Report and Recommendation to all parties, who are notified of their right to object to the same. See 28:636(b)(1); Fed R. Civ. P. 72(b). The parties must file any objection to this Report and Recommendation within fourteen (14) days of service thereof. Failure to object may constitute waiver of objections upon subsequent review. Signed by Magistrate Judge Daphne A. Oberg on 1/29/21.

016

NOTICE of SUPPLEMENTAL AUTHORITY by Internal Revenue Service, US Department of Justice re 7 MOTION to Dismiss for Lack of Jurisdiction and Memorandum in Support MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM and Memorandum in Support (Gallagher, Erin) (Entered: 01/25/2021)

015

NOTICE of Change of Address by Glenda E. Johnson. (lnp) (Entered: 10/13/2020)

014

ORDER REFERRING MOTION 7 MOTION to Dismiss for Lack of Jurisdiction and Memorandum in Support MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM and Memorandum in Support filed by US Department of Justice, Internal Revenue Service. Motions referred to Daphne A. Oberg. Signed by Judge Howard C. Nielson, Jr., on 6/23/2020.

013

ORDER REFERRING CASE to Magistrate Judge Daphne A. Oberg under 28:636 (b)(1)(B), Magistrate to handle case up to and including R&R on all dispositive matters. No attached document. Signed by Judge Howard C. Nielson, Jr. on 6/17/2020

012

ANSWER to Opposition to Dismiss filed by Plaintiff Glenda E. Johnson.

011

REPLY to Response to Motion re 7 MOTION to Dismiss for Lack of Jurisdiction and Memorandum in Support MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM and Memorandum in Support filed by Defendants Internal Revenue Service, US Department of Justice.

010

Case Reassigned to District Judge per docket text order 9. Case randomly assigned to Judge Howard C. Nielson, Jr. Magistrate Judge Cecilia M. Romero no longer assigned to the case.

009

DOCKET TEXT ORDER TO REASSIGN CASE. Based upon the procedural posture of this case and the pending 7 Motion to Dismiss the undersigned ORDERS this case be reassigned to a district judge through random reassignment No attached document. Signed by Magistrate Judge Cecilia M. Romero on 5/21/20.

008

MEMORANDUM in Opposition re 7 MOTION to Dismiss for Lack of Jurisdiction and Memorandum in Support and MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM and Memorandum in Support filed by Plaintiff Glenda E. Johnson.

008-1

Exhibit Form 3468 Instructions

007

MOTION to Dismiss for Lack of Jurisdiction and Memorandum in Support , MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM and Memorandum in Support filed by Defendants Internal Revenue Service, US Department of Justice. Attorney Erin Healy Gallagher added to party Internal Revenue Service(pty:dft), Attorney Erin Healy Gallagher added to party US Department of Justice(pty:dft)

007-1

Exhibit 926, Appellants' Docketing Statement

006

**RESTRICTED DOCUMENT** SUMMONS Returned Executed by Glenda E. Johnson. US Department of Justice served on 2/26/2020, answer due 4/27/2020.

005

Modification of Docket re 1 Complaint. Error: pages 5-7 were not scanned with the original filing of the complaint. Correction: complaint has been rescanned and a complete copy attached to the entry.

004

**RESTRICTED DOCUMENT**Summons Issued Electronically as to US Department of Justice.

003

**RESTRICTED DOCUMENT**Summons Issued Electronically as to Internal Revenue Service.

002

**RESTRICTED DOCUMENT**Summons Issued Electronically as to David Nuffer.

001

COMPLAINT against Internal Revenue Service, David Nuffer, US Department of Justice (Filing fee $ 400, receipt number 4681089537) (Fee Status: Paid) filed by Glenda E. Johnson. Assigned to Magistrate Judge Cecilia M. Romero (nl) (

001-1

Civil Cover Sheet

001-2

Complete complaint