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Torp v. United States

United States District Court, W.D. Michigan, Southern Division

May 18, 2018

Richard Orville Torp, Plaintiff,
v.
United States, et al., Defendants.

          HONORABLE ROBERT J. JONKER JUDGE.

          REPORT AND RECOMMENDATION

          PHILLIP J. GREEN UNITED STATES MAGISTRATE JUDGE.

         This is a civil action brought pro se by plaintiff. Plaintiff refers to himself as “Richard Orville, Torp.”[1] His operative pleading is his “AMENDED COMPLAINT FOR DECLARATORY JUDGMENT TO CLEARLY IDENTIFY JURISDICTIONAL ELEMENTS OF TITLE 26 U.S.C./INTERNAL REVENUE CODE AND DAMAGES.” (ECF No. 14 at PageID.244). Plaintiff named the United States[2] and the Internal Revenue Service as defendants.

         Plaintiff states that this is a declaratory judgment action to identify, resolve and settle: (a) “government corporation and public salary ‘wage' taxing schemes jurisdictions”; (b) how he “is NOT subject to the jurisdictional elements of the corporation ‘gain' and public ‘wage' taxing jurisdiction/schemes”; (c) how he “is NOT subject to the jurisdictional elements of the social security taxing jurisdictions/schemes”; and (d) address “government “misconception[s]” regarding “federal taxing scheme jurisdictions as they apply to [p]laintiff.” (Id. at PageID.251-52). Plaintiff seeks an award of damages and a variety of declaratory relief, including relief regarding his past, present, and future tax liability. (Id. at PageID.244, 317-18, 326).

         The matter is before the Court on defendants' Rule 12(b)(6) motion (ECF No. 19) and plaintiff's Rule12(c) motion (ECF No. 26). For the reasons set forth herein, I recommend that judgment be entered dismissing all plaintiff's claims against defendants for lack of subject matter jurisdiction and that the pending motions be dismissed.

         Applicable Standards

         “Federal courts are courts of limited jurisdiction and the law ‘presume[s] that a cause lies outside this limited jurisdiction.' ” Vander Boegh v. EnergySolutions, Inc., 772 F.3d 1056, 1064 (6th Cir. 2014) (quoting Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)). “[T]he burden of establishing the contrary rests upon the party asserting jurisdiction.” Vander Boegh, 772 F.3d at 1064. “ ‘Subject-matter jurisdiction can never be waived or forfeited, ' and courts are obligated to consider sua sponte whether they have such jurisdiction.” Id. (quoting Gonzalez v. Thaler, 565 U.S. 134, 141 (2012)); see Arbaugh v. Y & H Corp., 546 U.S. 500, 514 (2006) (Federal courts “have an independent obligation to determine whether subject-matter jurisdiction exists, even in the absence of a challenge from any party.”).

         Rule 12(b)(1) provides for dismissal based on “lack of subject-matter jurisdiction.”[3] Fed.R.Civ.P. 12(b)(1). Defendants' arguments that the Court lacks subject matter jurisdiction (ECF No. 20, PageID.482-83) would have been more appropriately made under Rule 12(b)(1) than Rule 12(b)(6).[4] See Stocker v. United States, 705 F.3d 225, 229 (6th Cir. 2013); see also Holy Love Ministry v. United States, 612 Fed.Appx. 837, 838 (6th Cir. 2015).

         Allegations

         Plaintiff states that his name is Richard Orville, Torp. (Am. Compl. ¶ 25, ECF No. 14, PageID.277). He is not a corporation. (Id. at ¶ 47, PageID.281). Plaintiff is “NOT employed by the federal government or any federal agency, department, bureau, office, division, sector, corporation, or federal state.” (Id. at ¶ 84, PageID.286).

         Plaintiff's wages were garnished “on 2/1/1998 through 10/31/2000” and “2/24/2002 through 6/15/2002.”[5] (Id. at 75-76, PageID.318-19; ECF No. 14-12, PageID.438-43).

         Discussion

         “Federal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute, which is not to be expanded by judicial decree. It is to be presumed that a cause lies outside this limited jurisdiction, and the burden of establishing the contrary rests upon the party asserting jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. at 377 (citations omitted); see Mason v. Lockwood, Andrews & Newman, P.C., 842 F.3d 383, 391 (6th Cir. 2016) ([T]here is a presumption against federal jurisdiction.”). Federal court are obligated to consider sua sponte whether they have subject matter jurisdiction.” Vander Boegh v. EnergySolutions, Inc., 772 F.3d at 1064.

         “The Internal Revenue Service is not an entity capable of being sued.” Abell v. Sothen, 214 Fed.Appx. 743, 750-51 (10th Cir. 2007); see Marvin v. Cable, No. 1:16-cv-135, 2016 WL 4479125, at *1 (W.D. Mich. Aug. 25, 2016); Schultz v. United States, Internal Reveune Serv., No. 1:15-cv-1299, 2016 WL 10649270, at *4 (N.D.N.Y. May 6, 2016). “A suit purporting to bring claims ...


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