ANDING v. GRAY, (N.D.Ga. 2001)

BEVERLY B. MARTIN, United States District Judge

This action is currently before the court on Plaintiffs John and Katrina Andings' motion to extend time to respond to Defendant Charles Gray's motion to stay the request for discovery [Doc. No. 35-1], and on Defendant Charles Gray's motion for remand to the Superior Court of Fulton County [Doc. No. 4-1], Defendant Charles Gray's motion for order to compel Plaintiffs John and Katrina Anding to produce documents [Doc. No. 26-1], Defendant Charles Gray's motion to compel Defendant United States to produce material documents [Doc. No. 27-1], Defendant Charles Gray's motion to strike fraudulent documents filed with the United States' motion for summary judgment [Doc. No. 29-1], Defendant Charles Gray's motion to stay the Plaintiffs John and Katrina Andings' request for discovery [Doc. No. 30-1], Defendant Charles Gray's motion to compel Defendant United States to produce documents [Doc. No. 41-1], Defendant Charles Gray's motion for ruling pursuant to Fed.R.Civ.P. 37(b)(2) [Doc. No. 41-2], on Defendant United States' motion to dismiss [Doc. No. 24-1], Defendant United States' motion for summary judgment [Doc. No. 24-2], and Defendant United States' motion for leave to supplement motion to dismiss [Doc. No. 38-1].

Factual Background

The Plaintiffs, John and Katrina Anding ("the Andings"), originally filed this action in the Superior Court of Fulton County to quiet title to real property that they purchased at a public sale conducted by the marshal for Fulton County. The property was deeded to the Andings on June 1, 1999. The Andings bought the property by executing a judgment that they had been assigned against the prior owner of the property, Charles Ronald Gray ("Gray"). The Andings then filed this action naming as defendants: Gray, the Internal Revenue Service ("IRS"), and the state of Georgia. After the IRS filed a motion to dismiss, the Andings voluntarily dismissed the IRS from the action. Gray, however, filed a counterclaim pro se and has attempted to file a third-party complaint, naming as defendants the United States of America, the Commissioner of Revenue for the State of Georgia, J. Claxton d/b/a Claxton Printing Company ("Claxton"), and Charles Robert Thornton. Gray has also attempted to name 100 John and Jane Does, to be identified as they become known.

The Andings named the IRS and the state of Georgia in the complaint because both entities hold several tax liens against Gray.

The counterclaim is just the latest chapter in Gray's repeated attempts to seek vengeance against the government and other individuals by filing lawsuits. Gray's problems with the government began in the early 1990s when Gray was adjudged to owe back federal income taxes. To satisfy Gray's tax liability, a portion of his property was seized by the IRS on April 6, 1992 in the course of collecting his unpaid tax for the year 1989. The property was sold on November 18, 1992 to Defendant Claxton pursuant to IRC §§ 6331 and 6335, and the IRS transferred the property by quitclaim deed to Claxton on May 21, 1993 pursuant to IRC § 6338. The deed was filed with the Clerk of the Superior Court of Fulton County on July 2, 1993. Throughout the course of Gray's tax delinquency proceedings, Gray has taken action against numerous government agents, government attorneys, and judges of this court by filing common law liens against their real and personal property.

Some of the individuals against whom Gray has filed liens against their property include: Judge Joel Feldman, Assistant United States Attorney Sharon Stokes, former United States Attorney Joe Whitley, revenue officer Teresa Ann Perrine, Judge Marvin Shoob, IRS attorney Gary Klein, Assistant United States Attorney Amy Kaminshine, and other individuals. Gray was later permanently enjoined from filing liens against the property of government employees by order of Judge William O'Kelley on May 5, 1993. See United States v. Gray, et al., 1:93-CV-0650-WCO. Gray was also prosecuted and convicted for his activities.

Although the present action was initiated by the Andings, every motion pending with this court concerns Gray's countersuit against the IRS, the Andings, and the other individuals. Indeed, the only reason this action is before the court is because the IRS removed the case from the Superior Court of Fulton County pursuant to 28 U.S.C. § 1442 (and on other removal grounds) after Gray brought his countersuit against the United States. Gray's complaint against the IRS (which he titles "Ku Klux Klan Action") alleges claims arising under 42 U.S.C. § 1985 and for common law torts of outrage and negligence per se. Gray's complaint also seeks to quiet title pursuant to IRC § 2410 for the two parcels of property now owned by the Andings and Claxton. Gray asserts that he is entitled to relief under section 2410 for each of the following reasons: the sale was made without there having been a proper assessment of federal taxes, the sale took place in the wrong county, the IRS agents who conducted the sale were agents of the International Monetary Fund, and the sale occurred in violation of the Federal Debt Collection Act. To date, Gray has filed numerous discovery motions against both the Andings and the government. The government has also moved to dismiss or in the alternative for summary judgment.

The United States' Motion for Summary Judgment

The United States has moved to dismiss [Doc. No. 24-1] or in the alternative for summary judgment [Doc. No. 24-2]. "A court may dismiss a complaint for failure to state a claim only if it is clear that the plaintiff alleged no facts which could lead to any judicial relief."Langford v. Rite Aid of Ala., Inc., 2000 WL 1643904 (11th Cir. Nov. 2, 2000). Summary judgment is proper "if . . . there is no genuine issue as to any material fact" and "the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The moving party may provide affirmative evidence of the non-moving party's inability to prove its case at trial, and summary judgment is mandated if a party cannot establish the existence of essential elements that it carries the burden of proving at trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

The United States contends that it is entitled to dismissal or summary judgment of Gray's suit on three principal grounds: (1) the court lacks subject matter jurisdiction for Gray's claims under section 1985 and in tort because the United States is entitled to sovereign immunity, and (2) the court lacks subject matter jurisdiction over Gray's claim to quiet title to his formerly owned property because neither Gray nor the United States presently owns or possesses it.

Although the United States has asserted other grounds for dismissal, the court need not address these grounds.

It is well settled that the United States may not be sued except to the extent that it has consented to suit by statute. See United States v. Dalm, 494 U.S. 596, 608, 110 S.Ct. 1361, 1368, 108 L.Ed.2d 548 (1990). The terms of such consent, if any, may not be implied but must be unequivocally expressed. See United States v. King, 395 U.S. 1, 4, 89 S.Ct. 1501, 1503, 23 L.Ed.2d 52 (1969). Consequently, no suit may be maintained against the United States unless the suit is brought in exact compliance with the terms of a statute under which the sovereign has consented to be sued. See Soriano v. United States, 352 U.S. 270, 276, 77 S.Ct. 269, 273, 1 L.Ed.2d 306 (1957). Where the United States has not consented to suit or the plaintiff has not met the terms of the statute, the court lacks jurisdiction and the action must be dismissed. See Fed.R.Civ.P. 12(h)(3); Dalm, 494 U.S. at 608, 110 S.Ct. at 1368.

"It is well established in this circuit that the United States has not waived its immunity to suit under the provisions of the civil rights statutes [ 42 U.S.C. § 1981 et seq.]" United Sates v. Timmons, 672 F.2d 1373, 1380 (11th Cir. 1982); Unimex, Inc. v. United States Dep't of Hous. and Urban Dev., 594 F.2d 1060, 1061 (5th Cir. 1979). Furthermore, although the United States has consented to be sued in tort, the government has not waived its sovereign immunity with respect to any tort claim "arising in respect of the assessment or collection of any tax." IRC § 2680(c). The courts have also interpreted this provision broadly. As the court in Capozzoli v. Tracey, 663 F.2d 654 (5th Cir. 1981) noted:

[W]e cannot subscribe to plaintiffs' narrow construction of 28 U.S.C. § 2680(c). Congress retained the United States' sovereign immunity for any claim in respect of the assessment or collection of taxes. This language is broad enough to encompass any activities of an IRS agent even remotely related to his or her official duties.

Plaintiffs seem to argue that since an IRS employee is not authorized to commit torts, any tortious or wrongful conduct by an agent cannot, by definition, be in respect of his official duties of assessing or collecting taxes. However, this construction, which would render Section 2680(c) meaningless, has been consistently rejected. Section 2680(c) has been interpreted broadly by the courts to preclude suits for damages arising out of the allegedly tortious activities of IRS agents when those activities were in any way related to the agents' official duties.

Id. at 658.

Here, there is no question that the United States has retained its sovereign immunity regarding Gray's claims in tort, negligence, and under section 1985. The court lacks subject matter jurisdiction over these claims; thus these claims are hereby DISMISSED.

The United States has waived sovereign immunity for an action to quiet title pursuant to IRC § 2410. Section 2410(a) states: "The United States may be named as a party in any civil action or suit in district court . . . having jurisdiction of the subject matter to quiet title to . . . real or personal property on which the United States has or claims a mortgage or other lien." However, while the government does not challenge the ability of a taxpayer to contest the procedural validity of a tax lien under section 2410(a), the government argues that section 2410(a) is inapplicable in this case because the government had already sold the property in question by the time Gray filed his quiet title action. Thus, the government argues, it did not have a mortgage or other lien on taxpayer's property at the time Gray filed suit. Consequently, the government argues, the plain terms of section 2410(a) were not met, and there was no waiver of sovereign immunity.

Although the Eleventh Circuit has not addressed this particular issue, each of the courts that have addressed it has uniformly concluded that "a taxpayer may maintain an action under § 2410(a) `only if, at the time the [§ 2410(a)] action is commenced, the government still claims a lien or a mortgage on the property. If the government has sold the property prior to the filing of the [§ 2410(a)] suit, . . . § 2410(a) does not apply.'" Koehler v. United States, 153 F.3d 263, 266 (5th Cir. 1998) (quoting Hughes v. United States, 953 F.2d 531, 538 (9th Cir. 1992)).

Accord Dahn v. United States, 127 F.3d 1249, 1251-52 n. 1 (10th Cir. 1997) (citing Hughes); MacElvain v. United States, 867 F. Supp. 996, 1002-03 (M.D.Ala. 1994); Brewer v. United States, 764 F. Supp. 309, 314 (S.D.N.Y. 1991); Murray v. United States, 520 F. Supp. 1207, 1210 (D.N.D. 1981), aff'd on other grounds, 686 F.2d 1320 (8th Cir. 1982).

Here, both portions of real property that Gray is attempting to quiet title to have been sold and deeded to other individuals. Hence, his claim to quiet title under section 2410 must fail and this claim is DISMISSED. Because all claims alleged against the United States that the court could identify from Gray's complaint have been dismissed, the United States' motion to dismiss or in the alternative motion for summary judgment [Doc. No. 24-1 and 24-2] is hereby GRANTED.

Motions Filed by Defendant Gray

Defendant Gray's motion to remand the action to the Superior Court of Fulton County [Doc. No. 4-1] is hereby DENIED. The United States clearly had the right to remove the action pursuant to 28 U.S.C. § 1442. All of Gray's discovery motions are either clearly frivolous or show no good faith effort to resolve the discovery disputes under Fed.R.Civ.P. 37(a)(1) and Local Rule 37.1. Therefore, Gray's motion for an order to compel Plaintiffs John and Katrina Anding to produce documents [Doc. No. 26-1] is hereby DENIED. Gray's motion to compel Defendant United States to produce material documents [Doc. No. 27-1] is hereby DENIED. Gray's motion to strike fraudulent documents filed in support of the United States' motion for summary judgment [Doc. No. 29-1] is hereby DENIED. Gray's motion to stay the Andings' request for discovery [Doc. No. 30-1] is hereby DENIED. Gray's motion to compel Defendant United States to produce documents and for a ruling pursuant to Fed.R.Civ.P. 37(b)(2) [Doc. No. 41-1 and 41-2] is hereby DENIED.

Other Motions

The United States' motion for leave to supplement motion to dismiss [Doc. No. 38-1] is hereby GRANTED. The Plaintiffs Andings' motion to extend time to respond to Defendant Charles Gray's motion to stay the Plaintiffs' request for discovery [Doc. No. 35-1] is hereby GRANTED.

Summary

The Andings' motion to extend time to respond to Defendant Charles Gray's motion to stay the Andings' request for discovery [Doc. No. 35-1] is GRANTED. Defendant Gray's motion for remand to the Superior Court of Fulton County [Doc. No. 4-1] is DENIED, Defendant Gray's motion for order to compel Plaintiffs to produce documents [Doc. No. 26-1] is DENIED, Defendant Gray's motion to compel Defendant United States to produce material documents [Doc. No. 27-1] is DENIED, Defendant Gray's motion to strike fraudulent documents filed with United States' motion for summary judgment [Doc. No. 29-1] is DENIED, Defendant Gray's motion to stay the Plaintiffs' request for discovery [Doc. No. 30-1] is DENIED, Defendant Gray's motion to compel Defendant United States to produce documents [Doc. No. 41-1] is DENIED, Defendant Gray's motion for ruling pursuant to Fed.R.Civ.P. 37(b)(2) [Doc. No. 41-2] is DENIED. Defendant United States' motion to dismiss [Doc. No. 24-1], motion for summary judgment [Doc. No. 24-2], and motion for leave to supplement motion to dismiss [Doc. No. 38-1] are each GRANTED.