United States District Court, E.D. Virginia, Richmond Division
A. GIBNEY, JR. UNITED STATES DISTRICT JUDGE.
J. Bigg failed to file tax returns for tax years 2002 through
2008. In April, 2015, the government filed this action
against Bigg and his radiology practice, Monument Radiology,
P.C ("Monument"), to collect on Bigg's tax
liability. Due to Bigg's failure to file tax returns, the
government calculated Bigg's tax liability based on
automated substitutes for returns
("ASFRs").Because both the defendants failed to
respond or defend against this action, the Court entered
default judgments against Bigg and Monument based on the
amount calculated in the ASFRs.
has now moved to set aside the default judgments on behalf of
himself and Monument under Federal Rule of Civil Procedure
60(b)(6). Because Bigg fails to meet his burden under Rule
60(b)(6), the Court will deny the motion.
British citizen, moved to Virginia with his wife in 1982. He
worked as a hospital radiologist for thirteen years before
losing his job. Bigg then attended Harvard Law School and
practiced law for a few years. His law firm eliminated his
position in 2001.
losing his job at the law firm, Bigg faced numerous personal
struggles and had trouble finding steady work. He began
drinking heavily and suffered from "bouts of
depression." (Dk. No. 30, at 5.) Beginning in 2002, Bigg
stopped filing tax returns. When Bigg sold his home in Great
Falls, Virginia, in 2003, the sale appeared to generate a
sizeable amount of taxable income based on the reporting the
IRS used to complete Bigg's ASFR. Bigg contends that he always
intended to catch up on filing his taxes, but that
"life-altering event[s]" continuously overwhelmed
him and prevented him from doing so. (Id.)
2012, Bigg bought Monument, a radiology business in Richmond,
Virginia, that faced "severe financial trouble" and
"a mountain of debt." (Id. at 6-7.) Bigg
says that he did not know about those troubles until August,
2012, because the office manager who stayed on staff after
the acquisition concealed Monument's financial affairs.
The IRS served Monument with a Notice of Levy, Salary, and
Other Income for Bigg's wages and other income on August
16, 2012. Monument did not comply with the levy.
September, 2014, Bigg found a letter from the IRS affixed to
the front door of his house in which the IRS threatened to
seize his assets. Bigg contacted a tax resolution firm in
October, 2014, that reassured him that it would address the
tax issues. The firm, however, did nothing to resolve the
issues. Bigg continued to drink heavily and "believes he
may have suffered a mental breakdown." (Id. at
government filed this action in April, 2015, and personally
served Bigg, individually and as president of Monument, with
a copy of the summons and the complaint. The Clerk entered
default against Bigg and Monument on May 21, 2015, when
neither defendant responded to the complaint. In October, and
November, 2015, the government mailed a copy of its motion
for default judgments and two Roseboro notices to
Bigg at his residence and Monument's office.
December 7, 2015, the Court entered default judgment against
Bigg in the amount of $1, 182, 573.00, plus statutory
interest, and against Monument in the amount of $371, 529.06,
plus statutory interest. The government garnished
Monument's insurance payments from 2016 until the
satisfaction of Monument's debt in September, 2019. Bigg
also received a letter by FedEx regarding discovery related
to this case in April, 2017. Since the Court entered the
default judgments, Bigg has tried to file belated tax returns
for 2002 through 2008. He contends that those returns show
that the IRS owes him $40, 000.
Rule of Civil Procedure 60(b)(6) allows a court to relieve a
party from a final judgment for "any ... reason that
justifies relief." Fed.R.Civ.P. 60(b)(6). To obtain
relief, the moving party must first show (1) that he or she
filed the motion in a timely manner, (2) that he or she has a
meritorious defense, and (3) that granting relief will not
unfairly prejudice the opposing party. Aikens v.
Ingram, 652 F.3d 496, 501 (4th Cir. 2011). Unlike relief
under Rule 60(b)(1) through (3), Rule 60(b)(6) does not
require a party to file his or her motion within one year.
Pioneer Inv. Servs. Co. v. Brunswick Assoc. Ltd.
P'ship, 507 U.S. 380, 393 (1993).
moving party must also show "'extraordinary
circumstances' suggesting that the party is faultless in
the delay." Id. Importantly, the provisions
under Rule 60 "are mutually exclusive," so a party
cannot seek relief under Rule 60(b)(6) that it should have
sought under another provision. Id. Further, when
the moving party does not establish extraordinary
circumstances, a court may deny the motion without analyzing
the threshold requirements. See Gelin v. Baltimore
County, No. CV ADC-16-3694, 2019 WL 1546849, at *8 (D.
Md. Apr. 9, 2019) ("Ordinarily, the Court would first
analyze whether Plaintiffs met the threshold requirements to
bring a Rule 60(b) motion. However, because the Court finds
that Plaintiffs have failed to establish... extraordinary
circumstances justifying relief pursuant to Rule 60(b)(6)...,
such analysis is unnecessary.").
Bigg argues that the Court should grant him and Monument
relief because (1) he did not know about the litigation-or at
least his personal turmoil prevented him from responding to
the action; and (2) enforcing the judgments based on the
inaccurate returns would "offend any notion of
justice." (Dk. No. 30, at 12.) The parties make numerous
other arguments regarding whether the defendants have
established the threshold requirements under Rule 60(b). The