United States District Court, W.D. Michigan, Southern Division
HONORABLE ROBERT J. JONKER JUDGE.
REPORT AND RECOMMENDATION
PHILLIP J. GREEN UNITED STATES MAGISTRATE JUDGE.
a civil action brought pro se by plaintiff.
Plaintiff refers to himself as “Richard Orville,
Torp.” 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 and the Internal Revenue
Service as defendants.
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).
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.
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.”).
12(b)(1) provides for dismissal based on “lack of
subject-matter jurisdiction.” 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). 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
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 ¶
wages were garnished “on 2/1/1998 through
10/31/2000” and “2/24/2002 through
6/15/2002.” (Id. at 75-76, PageID.318-19; ECF
No. 14-12, PageID.438-43).
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.
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