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United States v. Richardson

United States District Court, E.D. Virginia, Alexandria Division

December 9, 2016

UNITED STATES OF AMERICA, Plaintiff,
v.
ROBERT STEVEN RICHARDSON, Defendant. Tax Period Form 1040 Date of Assessment Unpaid Balance of Assessment as of 5/23/2016 Accrued Interest (I) & Penalty(P) as of 5/23/2016 Amount Due as of 5/23/2016

          REPORT AND RECOMMENDATION

          Ivan D. Davis United States Magistrate Judge

         This matter is before the Court on Plaintiff's Motion for Default Judgment against Defendant Robert Steven Richardson ("Defendant") pursuant to Federal Rule of Civil Procedure 55(b)(2). (Dkt. No. 8.) After neither Defendant nor a licensed attorney for Defendant appeared at the hearing on September 2, 2016, the undersigned Magistrate Judge took this matter under advisement to issue this Report and Recommendation. Upon consideration of the Complaint, the Motion for Entry of Default Judgment, and the supporting documents, the undersigned Magistrate Judge makes the following findings and recommends that Plaintiffs Motion be GRANTED.

         I. INTRODUCTION

         Plaintiff, United States of America ("Plaintiff), filed the Complaint on May 18, 2016 to collect unpaid federal income taxes assessed against Defendant for the years 2002, 2004, 2006, 2008, 2009, 2010, and 2011. (Compl. at 1.) Plaintiff has moved for default judgment against Defendant and seeks damages in the amount of $1, 286, 008.13 as of May 23, 2016, plus statutory additions to tax accruing until paid. (Compl. ¶ A.)

         A. Jurisdiction and Venue

Rule 55 of the Federal Rules of Civil Procedure provides for the entry of default judgment when "a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend." Fed.R.Civ.P. 55(a). The court must have both subject matter and personal jurisdiction over a defaulting party before it can render a default judgment.

         This Court has original jurisdiction over all civil actions arising under the Constitution, any civil action expressly authorized by Act of Congress, as well as any civil action arising under any Act of Congress providing for internal revenue. 28 U.S.C. §§1331, 1340, 1345; 26 U.S.C. § 7402(a). Therefore, this Court has subject matter jurisdiction. This Court has personal jurisdiction over Defendant because he resides in Virginia and was personally served in Virginia. See Int'l Shoe Co. v. Washington, 326 U.S. 310, 316-17 (1945). Venue is proper in this Court pursuant to 28 U.S.C. §§ 1391 and 1396.

         B. Service of Process

         For a court to have personal jurisdiction over a defendant for the purpose of entering default judgment, the plaintiff must properly serve the defendant under federal or state law. Miss. Publ'g Corp. v. Murphree, 326 U.S. 438, 444-45 (1946) (stating that "service of summons is the procedure by which a court having venue and jurisdiction of the subject matter of the suit asserts jurisdiction over the person of the party served"); Cent. Operating Co. v. Util. Workers of Am., 491 F.2d 245, 249-51 (4th Cir. 1974) (reversing the district court's entry of default judgment because the court lacked personal jurisdiction where the plaintiff failed to effectively serve the defendant with summons and complaint). The Federal Rules of Civil Procedure provide the manner in which service must occur.

         Federal Rule of Civil Procedure 4(e) governs service upon an individual and allows service by "delivering a copy of the summons and of the complaint to the individual personally [or] leaving a copy of each at the individual's dwelling or usual place of abode with someone of suitable age and discretion who resides there." Fed.R.Civ.P. 4(e)(2)(A)-(B)- On June 2, 2016, a certified process server served Defendant by personally serving him with the Summons and Complaint at Defendant's place of residence. (Dkt. No. 5.) Therefore, Plaintiff properly served Defendant pursuant to Rule 4(e).

         C. Grounds for Default

         On May 18, 2016, Plaintiff filed its Complaint against Defendant seeking unpaid federal income taxes and statutory additions to tax accruing and continuing until paid. (Dkt. No. 1.) A certified process server served Defendant on June 2, 2016. (Dkt. No. 5.) On July 13, 2016, after Defendant failed to respond, the Clerk of Court entered default against Defendant. (Dkt. No. 7.) On July 21, 2016, Plaintiff filed the pending Motion for Default Judgment. (Dkt. No. 8.) This Court held a hearing on the Motion on September 2, 2016. (Dkt. No. 12.) After Defendant failed to appear at the September 2, 2016 hearing, the undersigned Magistrate Judge took this matter under advisement to issue this Report and Recommendation.

         II. EVALUATION OF PLAINTIFF'S COMPLAINT

         Rule 55 of the Federal Rules of Civil Procedure provides for the entry of default judgment when "a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend." Fed.R.Civ.P. 55(a). A defendant in default concedes the factual allegations of the complaint. See, e.g., DIRECTV, Inc. v. Rawlins,523 F.3d 318, 322 n.2 (4th Cir. 2008); Partington v. Am. Int'l Specialty Lines Ins. Co.,443 F.3d 334, 341 (4th Cir. 2006); Ryan v. Homecomings Fin. Network, 253 F.3d 778, 780 (4th Cir. 2001). Default does not, however, constitute an admission of the adversary's conclusions of law, and is not to be "treated as an absolute confession by the defendant of his liability and of the plaintiffs right to recover." Ryan, 253 F.3d at 780 (quoting Nishimatsu Constr. Co., Ltd. v. Hous. Nat'l ...


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