United States District Court, E.D. Virginia, Richmond Division
HANNAH LAUCK UNITED STATES DISTRICT JUDGE.
matter comes before the Court on the Defendants Lewis F.
Carter ("Carter"), Mary Carter ("Mary"),
and Bobby Carter's ("Bobby") (collectively,
"the Carters"), all proceeding pro se,
multiple pending motions to dismiss
purportedly brought under Federal Rules of Civil Procedure
12(b)(1),  12(b)(2), 12(b)(6),  and 12(h)(3) (collectively,
the "Motions to Dismiss"), (ECF Nos. 7, 8, 9, 18);
the Carters' Motion to "Take Judicial Notice of
Law" (the "Judicial Notice Motion"), (ECF No.
17); the United States' Motion for Summary Judgment, (ECF
No. 21); the Carters' "Demand for Due Process
Hearing" (the "Due Process Demand"), (ECF No.
29); and, the Carters' "Second Demand for Due
Process Hearing" (the "Second Due Process
Demand"), (ECF No. 35).
United States responded to the Carters' first three
motions to dismiss. (ECF No. 12.) The Carters did not reply,
and the time to do so has expired. The United States did not
respond to the Carters' fourth-filed motion to dismiss,
the Carters' Judicial Notice Motion, the Carters'
Demand for Due Process Hearing, or the Carters' Second
Due Process Demand, and the time to do so has expired. The
Carters responded to the United States' Motion for
Summary Judgment, (ECF Nos. 25, 26, 27), and the United
States replied, (ECF No. 31.) The Court dispenses with oral
argument because the materials before it adequately present
the facts and legal contentions, and argument would not aid
the decisional process. Accordingly, all matters are ripe for
disposition. The Court exercises jurisdiction pursuant to 28
U.S.C. §§ 1340 and 1345,  26 U.S.C. § 7402(a),
26 U.S.C. § 7403.
reasons that follow, the Court will: (1) deny the
Carters' Motions to Dismiss; (2) deny as moot the
Carters' Judicial Notice Motion; (3) deny without
prejudice the United States' Motion for Summary Judgment;
and, (4) deny as moot the Carters' Due Process Demand and
Second Due Process Demand.
Factual and Procedural Background
case arises from the United States' efforts to collect
eleven years of unpaid taxes, penalties, and interest from
Carter. On March 16, 2015, the United States filed a
complaint to reduce to judgment tax assessments for the tax
years 1997-2000, 2002-2006, and 2008-2009. United States
v. Lewis Carter, No. 3:l5cvl6l, 2015 WL 9593652 (E.D.
Va. Dec. 31, 2015) ("Carter 7"). On
December 31, 2015, the Court granted summary judgment for the
United States on Carter's tax liabilities. (Carter
I, Final O. 1, ECF No. 56.) On January 14, 2016, the
Court entered an amended order that Carter's unpaid
federal tax debt, "in the amount of $309, 718.95, as of
January 5, 2015, plus statutory additions accruing thereafter
until paid, " be entered against Carter. (Carter
I, Amended O. 2, ECF No. 75.)
the final judgment was entered against him, Carter peppered
the Court with a number of filings. See United States v.
Carter, No. 3:15cv161, 2016 WL 1752761, at *1 n.1 (E.D.
Va. Apr. 29, 2016) (listing the "twenty-one filings
before the Court, " including "two Motions to Alter
or Amend a Judgment... and a Motion to Void the Order of the
Court"). Carter also appealed the Court's grant of
summary judgment and denial of his "multiple
postjudgment motions, " and on October 20, 2016, the
United States Court of Appeals for the Fourth Circuit
affirmed in an unpublished per curiam decision. United
States v. Carter, 669 F.Appx. 682 (4th Cir. 2016).
August 15, 2016, the United States filed the instant
Complaint, seeking to "foreclose the federal tax liens
against certain real properties with respect to Lewis
Carter's tax and penalty liabilities" for the tax
years 1997-2000, 2002-2006, and 2008-2009. (Compl. ¶ 1,
ECF No. 1.) The United States joined as defendants Mary,
Bobby, and the Virginia Department of Taxation (the
"VDOT"). The United States joined Mary and Bobby
because it believed both Mary and Bobby may "own an
interest in one of the properties" on which the United
States seeks to foreclose. (Compl. ¶¶ 5, 6.) The
United States joined the VDOT because it believed the VDOT
"may claim an interest in the real properties ... by
virtue of a state tax lien" on which the United States
seeks to foreclose. (Compl. ¶ 7.)
Complaint, the United States alleges that, after the
Court's grant of summary judgment in the prior case,
federal tax liens attached to three real properties in which
Carter held an interest. The United States seeks to foreclose
on the following three properties, all of which are located
in Westmoreland County, Virginia: (1) a property located at
1807 Oldhams Road, Hague, Virginia (the "Oldhams Road
Property"); (2) 0.17 acres, which became part of the
Oldhams Road Property (the "Oldhams Road
Addition"); and, (3) five additional parcels of property
identified only by tax map identification numbers, (the
to the Complaint, Carter and Mary acquired the Oldhams Road
Property as tenants by the entireties on August 4,
1988. Carter and Mary acquired the Oldhams
Road Addition as tenants by the entireties on July 9, 1997.
And Carter and Bobby acquired the Five Parcels as joint
tenants via bequest from Laxter Carter when he died on
October 30, 2007.
United States avers that it "is entitled to foreclose
the foregoing tax liens, sell the real properties, and
distribute the proceeds in accordance with the rights of the
parties determined herein, with the amounts attributable to
Lewis Carter's interest to be paid to the United States
and applied against his federal tax liabilities."
(Compl. ¶ 18.) The United States seeks judgment that it
"has valid and subsisting federal tax liens ... and
rights to ... the real properties described" in the
Complaint, (Compl. ¶ A), and asks the Court to order
that the federal tax liens attach to the properties, that the
properties be foreclosed and sold, and that the proceeds of
the sale "be distributed in accordance with the rights
of the parties determined herein, with the amounts
attributable to Lewis Carter's interest to be paid to the
United States and applied against his federal income tax
liabilities." (Compl. ¶ B.)
August 15, 2016, the United States filed its Complaint,
seeking to "foreclose the federal tax liens against
certain real properties with respect to Lewis Carter's
tax and penalty liabilities" for the tax years
1997-2000, 2002-2006, and 2008-2009, and joining Mary, Bobby,
and the VDOT. (Compl. 1, ¶¶ 4-7.) The Carters
jointly filed three motions to dismiss,  and the
United States responded to those three motions in one filing.
The Carters then filed four motions asking the Court to take
judicial notice of the Constitution, the Federal Rules of
Evidence, and several decisions of the Supreme Court of the
United States. (See ECF Nos. 10, 11, 13, 14.) The
Court denied those motions as moot. (Mem. O., ECF No. 16.)
After the United States filed its response to their first
three motions to dismiss, the Carters filed a fourth motion
to dismiss. On that same day, the Carters filed the
Judicial Notice Motion, titled "Motion to Take Judicial
Notice of Law in the District Court's Own Decision, Just
Previously Taken in Case No: 3:l5-cv-161." The United
States did not respond to either the Fourth Motion to Dismiss
or the Judicial Notice Motion.
the Court ruled on the Carters' motions to dismiss and
before discovery commenced, the United States filed a Motion
for Summary Judgment. This motion prompted another flurry
of filings by the Carters. Specifically, the Carters filed:
(1) "Defendant's Objection and Motion to
Strike;" (2) "Defendant's Second Objection to
Plaintiffs Motion for Summary Judgment;" (3)
"Defendant's Third Objection to Plaintiffs Motion
For Summary Judgment For Failure To Establish the
Subject-Matter Jurisdiction Of the District Court;" (4)
"Defendant's DEMAND For due
process Hearing;" and, (5) "Defendant's
Demand for Trial by Jury, " (ECF No. 30). The United
States responded to the Carters' objections and motions
to strike, and the Carters' jury demand, (ECF No. 32).
Analysis: Motions to Dismiss
gravamen of the Carters' Motions to Dismiss is that the
Court lacks jurisdiction to order the enforcement of federal
income taxes. The Carters also argue that the Court cannot
exercise personal jurisdiction over Mary and Bobby because
they were not parties to the previous action. The Court
will analyze each issue separately.
Analysis: Motion to Dismiss for Lack of Subject-Matter
motion to dismiss under Federal Rules of Civil Procedure
12(b)(1) challenging the Court's subject-matter
jurisdiction, the burden rests with the plaintiff, as the
party asserting jurisdiction, to prove that federal
jurisdiction is proper. See Int'l Longshoremen's
Ass'n v. Va. Int'l Terminals, Inc., 914 F.Supp.
1335, 1338 (E.D. Va. 1996) (citing McNutt v. Gen. Motors
Acceptance Corp., 298 U.S. 178, 189 (1936); Adams v.
Bain, 697 F.2d 1213, 1219 (4th Cir. 1982)). A motion to
dismiss pursuant to Fed.R.Civ.P. 12(b)(1) can attack
subject-matter jurisdiction in two ways. First, a Rule
12(b)(1) motion may attack the complaint on its face,
asserting that the complaint fails to state a claim upon
which subject-matter jurisdiction can lie. See Int'l
Longshoremen's Ass'n, 914 F.Supp. at
1338; see also Adams, 697 F.2d at 1219. In such a
challenge, a court assumes the truth of the facts alleged by
plaintiff, thereby functionally affording the plaintiff the
same procedural protection he or she would receive under Rule
12(b)(6) consideration. See Int'l
Longshoremen's Ass'n, 914 F.Supp. at 1338;
see also Adams, 697 F.2d at 1219.
12(b)(1) motion may also challenge the existence of
subject-matter jurisdiction in fact, apart from the
pleadings. See Richmond, Fredericksburg & Potomac
R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir.
1991); Int'l Longshoremen's Ass'n, 914
F.Supp. at 1338; see also Adams, 697 F.2d at 1219.
In such a case, because a party challenges the court's
"'very power to hear the case, '" the trial
court is free to weigh evidence to determine the existence of
jurisdiction. Int'l Longshoremen's
Ass'n, 914 F.Supp. at 1338 (quoting Mortensen v.
First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891
(3d Cir. 1977)). No presumptive truthfulness attaches to the
plaintiffs allegations, and the existence of disputed
material facts will not preclude the trial court from
evaluating for itself the merits of jurisdictional claims.
See Int'l Longshoremen's Ass'n, 914
F.Supp. at 1338; see also Adams, 697 F.2d at 1219.
facts necessary to determine jurisdiction intertwine with the
facts central to the merits of the dispute, a court should
find that jurisdiction exists and resolve any factual dispute
on the merits because the jurisdictional attack would then
closely mirror a challenge on the merits. United States
v. North Carolina, 180 F.3d 574, 580 (4th Cir. 1999);
Adams, 697 F.2d at 1219. A court need not examine
jurisdiction in that manner when a plaintiff asserts the
claim solely for the purpose of obtaining jurisdiction or
when a plaintiff raises a wholly insubstantial and frivolous
claim. Bell v. Hood, 327 U.S. 678, 682-83 (1946).
The Carters' Arguments
Carters raise many of the same arguments against
subject-matter jurisdiction that Carter previously raised in
Carter I. See, e.g., United States v. Carter, No.
3:15cv161, 2015 WL 9593652, at *4-6 (E.D. Va. Dec. 31 2015)
(discussing Carter's arguments that the Court lacks
jurisdiction), affd, 669 F.App'x 682 (2016). In
the Motions to Dismiss, the Carters argue that the United
States lacks the constitutional power to levy or enforce a
direct income tax. The Carters assert that the "court
strips itself of all subject-matter jurisdiction
that it may lawfully establish and take over the entire civil
action under the statute claimed to enforce the
direct tax imposed in practice by the
IRS'[s] defacto operations outside of any true
statutory authority." (First Mot. Dismiss ¶ 17, ECF
No. 7.) The essence of the Carters' argument that the
Court lacks subject-matter jurisdiction is that
[t]he enforcement by the federal courts of the practiced (and
argued) direct taxation of the American people, is
still prohibited and is constitutionally
unenforceable in the federal courts under the extant
prohibitions and mandates of Article I, Section 2, clause 3,
and Article I, Section 9, clause 4 of the U.S. Constitution
which prohibit ...