Summary
In Noll, the court dismissed the taxpayers' claims based upon the holding in Wages v. Internal Revenue Service, 915 F.2d 1230 (9th Cir. 1990).
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Case No. CIV O1-02-N-EJL
May 14, 2001
ORDER, REPORT AND RECOMMENDATION
Currently pending before the Court are Plaintiffs' Petition for Temporary Injunctive Relief (Docket No. 5), Plaintiffs' Motion to Strike Notice of Appearance of David Cheng (Docket No. 7), Plaintiffs' Motion for Pretrial Hearing (Docket No. 9), Bank Defendants' Motion to Dismiss (Docket No. 12), Plaintiffs' Motion for Judgment Upon Defendant U.S. Bank (Docket No. 19), Bank Defendants' Motion to Strike Plaintiffs' Motion for Judgment Upon U.S. Bank (Docket No. 22), Federal Defendants' Motion to Dismiss (Docket No. 23), Bank Defendants' Motion for Sanctions (Docket No. 28), Plaintiffs' Motion for Judicial Review of Service of Summons and Complaint (Docket No. 31), and Plaintiffs' Motion for Judicial Review of Filing a Claim Within the United States Supreme Court for Redress (Docket No. 38).
Plaintiffs filed the instant action against two (2) groups of Defendants: (1) U.S. Bank, Inc. and its employees Bill Mikos and Karen Warren (hereinafter referred to as the "Bank Defendants" whenever referred to collectively), and (2) John Peterson, Betty Young, Carol Davis, Dennis L. Parizek, Deborah S. Decker, Scott Kilpatrick, Jose Gonzales, and Randy K. Harper, all employees with the Internal Revenue Service (hereinafter referred to collectively as the "Federal Defendants").
Having carefully reviewed the record, considered oral arguments, and otherwise being fully advised, the Court enters the following Order, Report and Recommendation pursuant to 28 U.S.C. § 636 (b).
I. BACKGROUND
Plaintiffs Clifford L. Noll and Susan Noll commenced the instant action, alleging that the Federal Defendants (the IRS employees) committed fraud, embezzlement, and, ultimately, violated their constitutional rights when they sought to collect unpaid taxes allegedly owed by the Nolls for prior tax years. The Nolls also assert claims against U.S. Bank National Association ("U.S. Bank") and its employees, Bill Mikos and Karen Warren, alleging that the Bank Defendants violated their constitutional rights, and are guilty of embezzlement, based on the Bank's allegedly unlawful seizure of the amount of $2,923.55 from Clifford Noll's savings account and remittance of same to the [RS pursuant to an IRS Notice of Levy which was served on the Bank.
Apparently, in an effort to collect unpaid taxes for the tax years 1992 and 1993, and to collect certain penalties assessed against the Nolls, the IRS, on December 4, 2000, served an IRS Notice of Levy on U.S. Bank. Defendant Karen Warren, a U.S. Bank employee, checked the account records and found an account in the name of Clifford Noll containing $2,923.35. Warren placed a hold on the account and, on December 4, 2000, Warren sent a letter concerning the Notice of Levy to Clifford Noll, along with the taxpayer's copy of the IRS levy. On December 12, 2000, Clifford Noll telephoned Warren, who advised him to speak with Bill Mikos, an attorney for U.S. Bank. Clifford Noll telephoned Mikos and left a message on his voice mail, asking for a copy of a seizure warrant or a court order providing for the seizure. Mikos returned Noll's telephone call and advised him that he had no knowledge of any such warrant and advised him to call the IRS. On December 26, 2000, Warren remitted the $2,923.35 held in Noll's account to the IRS.
The Nolls commenced the instant action on January 3, 2001. Both the Bank Defendants and the Federal Defendants filed their respective Motions to Dismiss pursuant to Fed.R.Civ.P. 12(b)(1) (lack of subject matter jurisdiction) and Fed.R.Civ.P. 12(b)(6) (failure to state a claim for which relief may be granted). In addition to filing objections to said Motions to Dismiss, Plaintiffs have filed numerous other motions, all of which are the subject of this Order, Report and Recommendation.
II. ANALYSIS
A. Federal Defendants' Motion to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6) (Docket No. 23) and Plaintiffs' Petition for Temporary Injunctive Relief (Docket No. 5)
(1) Standard for Motion for Dismiss
When analyzing a motion to dismiss under Fed.R.Civ.P. 12(b)(6), the Court must accept as trite the factual allegations contained in the complaint and construe them in the light most favorable to the plaintiff. Mishler v. Clift, 191 F.3d 998, 1003 (9th Cir. 1999). Dismissal is improper unless it appears beyond doubt that the plaintiff can prove no set of facts in support of its claim that would entitle it to relief. Id. Thus, ""[t]he issue is not whether a plaintiff will ultimately prevail but whether [he] is entitled to offer evidence to support the claims."' Cervantes v. City of SanDiego, 5 F.3d 1273, 1274 (9th Cir. 1993) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974)) (emphasis in the original).
Generally, with respect to Rule 12(b)(6) motions, the Court may not consider matters contained outside the pleadings. "If matters external to the pleadings are presented to the Court and not excluded, a Rule 12 (b)(6) motion for failure to state a claim should be treated as a motion for summary judgment" under Fed.R.Civ.P. 56. Roscdes v. United States, 824 F.2d 799, 802 (9th Cir. 1987); Fed.R.Civ.P. 12(b). However, when addressing a Rule 12(b)(6) motion, the Court may take judicial notice of facts outside the pleadings which are matters of public record, such as records or reports from courts or administrative bodies, without converting the motion into a Rule 56 motion for summary judgment. See Muns v. United States Bankruptcy Court for the District of Nevada, 828 F.2d 1385, 1387 n. 9 (9th Cir. 1987); Fed.R.Evid. 201. With respect to allegations in a pro se complaint, said allegations are generally held to less stringent standards than formal pleadings drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972).
With respect to a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction, the Ninth Circuit Court of Appeals has provided as follows:
A district court may hear evidence and make findings of fact necessary to rule on the subject matter jurisdiction question prior to trial, if the jurisdictional facts are not intertwined with the merits. In such circumstances, no presumption of truthfulness attaches to the plaintiffs allegations. However, if the jurisdictional issue and substantive claims are so intertwined that resolution of the jurisdictional question is dependent on factual issues going to the merits, the district court should employ the standard applicable to a motion for summary judgment and grant the motion to dismiss for lack of jurisdiction only if the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law. Otherwise, the intertwined jurisdictional facts must be resolved at trial by the trier of fact.
Rosales, 824 F.2d at 802 (citations omitted).
(2) Analysis
The Federal Defendants seek dismissal of Plaintiffs' Complaint on several grounds, which the Court will address respectively.
(a) Claims against the Federal Defendants ID their official capacities
The actions of the Federal Defendants which are at issue in Plaintiffs' Complaint concern actions the Federal Defendants took in the course of investigating and attempting to collect unpaid federal taxes from Plaintiffs. The individual Federal Defendants argue that, to the extent that they are being sued in their official capacities as IRS employees, any such claims are essentially claims against the United States. The Federal Defendants also argue that any such claims against the United States are barred by the doctrine of sovereign immunity and, thus, should be dismissed based on lack of subject matter jurisdiction. The Court agrees.
As the Ninth Circuit Court of Appeals explained in Gilbert v. DaGrossa, 756 F.2d 1455 (9th Cir. 1985):
It is well settled that the United States is a sovereign, and, as such, is immune from suit unless it has expressly waived such immunity and consented to be sued. Such waiver cannot be implied, but must be unequivocally expressed. Where a suit has not been consented to by the United States, dismissal of the action is required. . . .
Naming the three [individual IRS employees] as defendants does not keep this action from being a suit against the United States. It has long been the rule that the bar of sovereign immunity cannot be avoided by naming officers and employees of the United States as defendants. Thus, a suit against IRS employees in their official capacity is essentially a suit against the United States. As such, absent express statutory consent to sue, dismissal is required.
Id. at 1458 (emphasis added).
In the instant action, Plaintiffs cite Article III of the United States Constitution as the basis for conferring this Court with subject matter jurisdiction over the instant action. However, Article III of the Constitution is not a statute and it certainly cannot be read to constitute an express, statutory waiver of the United States' sovereign immunity against the type of claims presently before this Court. Absent evidence of an express, statutory waiver in this regard, the Court concludes that any claims asserted by Plaintiffs against the individual Federal Defendants in their official capacities are barred by the doctrine of sovereign immunity.
(b) Plaintiffs' Bivens claims against the Federal Defendants in their individual capacities and the Federal Defendants' defense of qualified immunity
The United States Supreme Court has recognized that the doctrine of sovereign immunity does not bar damage actions against federal officials in their individual capacities for alleged violations of an individual's constitutional rights. Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). In the instant action, Plaintiffs argue that they are asserting Bivens claims against the Federal Defendants in their individual capacities based on their alleged misconduct in investigating and attempting to collect unpaid taxes from Plaintiffs. The Federal Defendants seek dismissal of Plaintiffs' Bivens claims pursuant to Fed.R.Civ.P. 12(b)(6), for failure to state a claim upon which relief may be granted.
Pursuant to the Ninth Circuit Court of Appeals' analysis in Wages v. Internal Revenue Service, 915 F.2d 1230 (9th Cir. 1990), this Court concludes that Plaintiffs' Bivens claims must be dismissed. In Wages, the plaintiff had filed a complaint similar to Plaintiffs' complaint in the instant action to the extent that the plaintiff in Wages alleged fraudulent misconduct on behalf of certain IRS employees after they had attempted to collect unpaid federal taxes by garnishing the plaintiffs paychecks. The Ninth Circuit in Wages affirmed the lower court's decision to grant the defendants' motion to dismiss. Specifically, with respect to the plaintiffs Bivens claim against the individual IRS defendants, the Ninth Circuit noted that "we have never recognized a constitutional violation arising from the collection of taxes." Id. at 1235. The Ninth Circuit's rationale for not recognizing Bivens claims in this context was that "remedies provided by Congress, particularly the right to sue the government for a refund of taxes improperly collected, foreclose a damage action under Bivens in this situation." Id. Cf Short v. Richardson, 1995 WL 810023, at * 3 (E. D. Wash. 1995) (recognizing that "there is no Ninth Circuit authority establishing a taxpayer's right to bring a Bivens claim" on facts similar to the facts present in the instant action). See also Shwarz v. United States, 234 F.3d 428, 434 (9th Cir. 2000) (agreeing with the view held by several other federal circuits that "a right of action under Bivens for unconstitutional tax collection activity should not be implied by the courts, in light of the comprehensive and exclusive remedies provided by the Revenue Code and regulations, including [ 26 U.S.C. § 7433]").
Defendants argue that the instant action cannot be construed as a tax refund suit because there is no evidence in the record that Plaintiffs have complied with the filing requirements of 26 U.S.C. § 7422, which is the statute that represents the United States' sole waiver of sovereign immunity with respect to refund litigation. Pursuant to 26 U.S.C. § 7422 (a), no civil action shall be maintained "for the recovery of any internal revenue tax alleged to have been erroneously or illegally assessed or collected . . . until a claim for refund or credit has been duly filed with the Secretary. . . ." In addition to filing an administrative claim, the tax liability must be fully paid by the taxpayer prior to filing suit. See Flora v. United States, 362 U.S. 145, 80 S.Ct. 630, 4 L.Ed.2d 623 (1960). In the instant action, Plaintiffs do not allege that they filed an administrative claim with the IRS prior to filing suit, nor have they alleged that they have paid the tax liability in full. Accordingly, this Court concludes that it lacks subject matter jurisdiction under 26 U.S.C. § 7422 to entertain the instant action as a refund suit.
Based upon the case law set forth above, the Court in the instant action concludes that Plaintiffs' Bivens claims should be dismissed.
Even assuming arguendo that Plaintiffs could state a Bivens claim, the Federal Defendants argue that said claims should be dismissed because they are entitled to qualified immunity. The Federal Defendants would be entitled to qualified immunity if their conduct did not violate a clearly established statutory or constitutional right of which a reasonable person would know. Fry v. Melarango, 939 F.2d 832, 838 (9th Cir. 1991).
The plaintiff bears the burden of demonstrating that the underlying right was clearly established at the time of the alleged misconduct. If the plaintiff meets this burden then the officials must prove that "their conduct was reasonable under the applicable standards even though it might have violated the plaintiff's constitutional rights."
Devereaux v. Perez, 218 F.3d 1045, 1051 (9th Cir. 2000) (quoting Benigni v. City of Hemet, 879 F.2d 473, 480 (9th Cir. 1988)).
In the instant action, Plaintiffs have cited no authority which suggests that the actions taken by the IRS employees while investigating and attempting to collect taxes owed by them were actions which violated any clearly established constitutional or statutory right. "Even if the agents had violated IRS administrative or statutory provisions, this would not [automatically] result in a loss of qualified immunity." Short, 1995 WL 810023, at *5 (citing Davis v. Scherer, 468 U.S. 183, 194 (1984); Maraziti v. First Interstate Bank of California, 953 F.2d 520, 525 (9th Cir. 1992)). Because Plaintiffs have failed to meet their burden in this regard, the Court concludes that the Federal Defendants are entitled to qualified immunity.
(c) Plaintiffs' RICO claim
In Paragraph D in their Prayer for Relief, Plaintiffs seek "civil RICO penalties" against the individual Federal Defendants, although no RICO claim is specifically asserted in the body of their Complaint. To the extent that Plaintiffs assert a federal RICO claim against the Federal Defendants, the Federal Defendants argue that said claim should be dismissed pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief may be granted. The Court agrees that any federal RICO claims asserted by Plaintiffs should be dismissed.
A review of Plaintiffs' Complaint reveals that Plaintiffs have not cited to the federal civil racketeering statute, 18 U.S.C. § 1961 et seq. More importantly, Plaintiffs have not alleged any specific facts that establish the prima facie elements of a civil RICO violation, such as the existence of a RICO enterprise or a pattern of racketeering activity. Consequently, the Court concludes that Plaintiffs' RICO claim against the Federal Defendants, to the extent that one is asserted, should be dismissed.
(d) 26 U.S.C. § 7433
In their Complaint, Plaintiffs allege that the individual Federal Defendants violated certain provisions of Title 26 while investigating and attempting to collect unpaid taxes and penalties allegedly owed by them, and that, ultimately, such conduct amounted to fraud and embezzlement.
The exclusive remedy for recovering damages resulting from the collection of Federal tax, wherein it is alleged that the IRS officer or employee "recklessly or intentionally, or by reason of negligence disregards any provision of [Title 26], or any regulation promulgated under [Title 26]" is 26 U.S.C. § 7433. 26 U.S.C. § 7433 (a); Shwarz v. United States, 234 F.3d 428, 432 (9th Cir. 2000). Thus, the scope of § 7433 applies to "any activity "in connection with any collection of Federal tax' that is performed in "disregard' of any provision of the Revenue Code or regulations." Shwarz, 234 F.3d at 432-33. Section 7433 applies to all actions for improper tax collection activity, except for actions brought under 26 U.S.C. § 7432, which deals with damages for failure to release a lien. Id. at 433.
A threshold jurisdictional requirement for a suit under § 7433 is that administrative remedies be exhausted. 26 U.S.C. § 7433 (d)(1). In the instant action, Plaintiffs have not alleged that they have exhausted their administrative remedies. Consequently, the Court concludes that it lacks subject matter jurisdiction over all of their claims which may arise under 26 U.S.C. § 7433; thus, any such claims should be dismissed.
(e) Plaintiffs' claims for injunctive and declaratory relief
The Federal Defendants seek dismissal of Plaintiffs' request for injunctive and declaratory relief based on the ground that this Court lacks subject matter jurisdiction over said claims. The Court agrees.
The Anti-Injunction Act prohibits any court from interfering with the assessment or collection of any taxes, with certain exceptions which are not applicable here. Specifically, the Act provides:
[No] suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person, whether or not such person is the person against whom the tax was assessed.26 U.S.C. § 7421 (a). The Act's "ban on judicial interference is applicable not only to the assessment and collection of taxes, but to activities which relate to the assessment and collection of taxes." Short, 1995 WL 810023, at *3 (citing Blech v. United States, 595 F.2d 462, 466 (9th Cir. 1979)).
In the instant action, Plaintiffs filed a separate Petition for Temporary Injunctive Relief seeking the Court's intervention to stop the Federal Defendants from collecting taxes allegedly owed by them. Based on 26 U.S.C. § 7421 (a), the Court concludes that it does not have subject matter jurisdiction to grant such a request for injunctive relief, accordingly, said request should be dismissed.
In their Complaint, Plaintiffs also seek declaratory relief, specifically, Plaintiffs seek a declaration that "all documents filed into the U.S. Department of the Treasury's records against the Claimant, for the years in question, by any and all of the Defendants are fraudulent, without lawful authority, without legal merit, and are therefore, void ab initio." However, to the extent Plaintiffs seek declaratory relief, their request is governed by the Declaratory Judgment Act, 28 U.S.C. § 2201, which expressly precludes this Court from exercising jurisdiction over matters pertaining to federal taxes. Specifically, 28 U.S.C. § 2201 provides:
In a case of actual controversy within its jurisdiction, except with respect to Federal taxes . . . any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought. . . .
(Emphasis added). Based on the above, the Court concludes that Plaintiffs' request for declaratory relief should be dismissed.
In summary, for the reasons stated above, the Court concludes that the Federal Defendants' Motion to Dismiss should be granted in its entirety and all claims asserted against the individual Federal Defendants by Plaintiffs should be dismissed.
Because the Court is of the opinion that dismissal of Plaintiffs' claims against the individual Federal Defendants is proper for the reasons set forth above, the Court will not address the other grounds for dismissal raised by the Federal Defendants.
B. Bank Defendants' Motion to Dismiss (Docket No. 12)
U.S. Bank and its employees, Bill Mikos and Karen Warren, seek dismissal of all of Plaintiffs' claims against them on the basis that they are entitled to immunity from said claims pursuant to 26 U.S.C. § 6332 (e), which provides, in pertinent part, as follows:
Effect of honoring levy. — Any person in possession of (or obligated with respect to) property or rights to property subject to levy upon which a levy has been made who, upon demand by the Secretary, surrenders such property or rights to property (or discharges such obligation) to the Secretary . . . shall be discharged from any obligation or liability to the delinquent taxpayer and any other person with respect to such property or rights to property arising from such surrender or payment.
In addition, 26 C.F.R. § 301.6332-I provides, in pertinent part, as follows:
(c)(2) Exception for certain incorrectly surrendered property. Any person who surrenders to the Internal Revenue Service property or rights to property not properly subject to levy in which the delinquent taxpayer has no apparent interest is not relieved of liability to a third party who has an interest in the property. However, if the delinquent taxpayer has an apparent interest in property or rights to property, a person who makes a good faith determination that such property or rights to property in his or her possession has been levied upon by the Internal Revenue Service and who surrenders the property to the United States in response to the levy is relieved of liability to a third party who has an interest in the property or rights to property, even if it is subsequently determined that the property was not properly subject to levy.
(Emphasis added).
Relying on the above provisions, the Bank Defendants argue that, so long as a person has a good faith belief that such property in his or her possession has been levied upon, and it is apparent that the delinquent taxpayer has an interest in the property, the person who surrenders the property to the IRS is not liable for any potential claims asserted against him or her by the delinquent taxpayer arising from the surrender of such property. The Bank Defendants argue that it is undisputed that Plaintiffs had an interest in the money contained in the U.S. Bank savings account, and that they had a good faith belief that the money was subject to the IRS levy; therefore, they are entitled to § 6332(e) immunity and any of Plaintiffs' claims asserted against them should be dismissed. The Court agrees.
Plaintiffs do not dispute that the money surrendered by the Bank Defendants to the IRS was their money. Rather, Plaintiffs argue that the Bank Defendants are not entitled to immunity under 26 U.S.C. § 6332 (e) because the money was not "subject to levy." Essentially, Plaintiffs argue that the IRS levy was invalid because it was not accompanied by a court order or warrant.
However, the law is clear that a person who meets the requirements under 26 U.S.C. § 6332 (e) and 26 C.F.R. § 301.6332-1 is immune from liability from the delinquent taxpayer, and it matters not whether the levy was valid or invalid. See 26 C.F.R. § 301.6332-1; Moore v. General Motors Pension Plans, 91 F.3d 848, 850-51 (7th Cir. 1996) (finding third parties immune from liability regardless of the validity of the levy).
Based on the above analysis, the Court concludes that the Bank Defendants are entitled to immunity from all of Plaintiffs' claims asserted against them pursuant to 26 U.S.C. § 6332 (e). Consequently, the Court concludes that the Bank Defendants' Motion to Dismiss should be granted and all of Plaintiffs' claims against them should be dismissed.
C. Bank Defendants' Motion for Sanctions docket No. 28
The Bank Defendants move for a Court order awarding sanctions against Plaintiffs under Fed.R.Civ.P. 11 on the basis that their Complaint is frivolous and made with the purpose of harassing them. They also move, pursuant to 28 U.S.C. § 1651, to have Plaintiffs declared vexatious litigants and have the Court impose an appropriate injunctive and/or pre-filing review order to control future filings in this Court by Plaintiffs.
For the reasons set forth below, the Court grants the Bank Defendants' Motion for Rule 11 sanctions. The law is clear that the Bank Defendants are entitled to immunity from Plaintiffs' claims under 26 U.S.C. § 6332 (e), where there is no dispute that the property seized by the Bank Defendants and turned over to the IRS was property subject to an IRS levy. In the instant action, there is no dispute over Plaintiffs' ownership interest in the property levied upon. The only challenge made by Plaintiffs is that the IRS levy was not a valid levy. However, the law is well-settled that once the IRS levy was served on the Bank Defendants, the Bank Defendants were legally obligated under 26 U.S.C. § 6332 (a) to turn over to the IRS Plaintiffs' accounts; the Bank Defendants could not challenge the validity of the levy. Moore, 91 F.3d at 851. In light of this clearly established law, the Court concludes that Plaintiffs' claims against the Bank Defendants for embezzlement and violation of their constitutional rights are frivolous and without merit. Thus, the Court concludes that the Bank Defendants are entitled to Rule 11 sanctions against Plaintiffs in the form of reasonable attorney fees and costs incurred by the Bank Defendants in having to respond to Plaintiffs' Complaint against them.
As the Seventh Circuit Court of Appeals explained in Moore:
"[A] bank served with a notice of levy has two, and only two, possible defenses for failure to comply with the demand: that it is not in possession of the property of the taxpayer, or that the property is subject to a prior judicial attachment or execution." United States v. National Bank of Commerce, 472 U.S. 713, 727, 105 S.Ct. 2919, 2928, 86 L.Ed.2d 565 (1985) (emphasis added). [The taxpayer's] challenge to the validity of the levy did not alter [the bank's] obligation to comply with the levy, Schiff v. Simon Schuster, Inc., 780 F.2d 210, 212 (2d Cir. 1985); Allstate Financial Corp. v. United States, 860 F. Supp. 653, 656 (D.Minn. 1994), and thus, [the bank] could not have challenged the validity of the levy on [the taxpayer's] behalf [The bank] cannot be held liable for having failed to do what it could not legally do.
91 F.3d at 851.
With respect to the Bank Defendants' request under 28 U.S.C. § 1651 (a) for an order enjoining Plaintiffs from filing future baseless actions, the Court concludes that the Bank Defendants do not have standing to make such a request. Although Plaintiffs have filed numerous tax protest actions in the past, these actions have never been against these specific Bank Defendants, rather they have been against the United States, the Internal Revenue Service and/or its agents. Because the Bank Defendants lack standing, their request under 28 U.S.C. § 1651 (a) is denied.
D. Remaining Motions
Based upon the Court's ruling herein, the Court concludes that all remaining motions are moot, i.e. Plaintiffs' Motion to Strike Notice of Appearance of David Cheng (Docket No. 7), Plaintiffs' Motion for Pretrial Hearing (Docket No. 9), Plaintiffs' Motion for Judgment Upon Defendant U.S. Bank (Docket No. 19), Bank Defendants' Motion to Strike Plaintiffs' Motion for Judgment Upon U.S. Bank (Docket No. 22), Plaintiffs' Motion for Judicial Review of Service of Summons and Complaint (Docket No. 31), and Plaintiffs' Motion for Judicial Review of Filing a Claim Within the United States Supreme Court for Redress (Docket No. 38).
III. ORDER
Based upon the foregoing, IT IS HEREBY ORDERED:
(1) Plaintiffs' Motion to Strike Notice of Appearance of David Cheng (Docket No. 7), Plaintiffs' Motion for Pretrial Hearing (Docket No. 9), Plaintiffs' Motion for Judgment Upon Defendant U.S. Bank (Docket No. 19), Bank Defendants' Motion to Strike Plaintiffs' Motion for Judgment Upon U.S. Bank (Docket No. 22), Plaintiffs' Motion for Judicial Review of Service of Summons and Complaint (Docket No. 31), and Plaintiffs' Motion for Judicial Review of Filing a Claim Within the United States Supreme Court for Redress (Docket No. 38) are MOOT.
(2) The Bank Defendants' Motion for Sanctions (Docket No. 28) is GRANTED in part and DENIED in part. Said Motion is granted to the extent that Plaintiffs are hereby required to pay to the Bank Defendants as Rule 11 sanctions the amount of reasonable attorney fees and costs incurred by the Bank Defendants in having to respond to Plaintiffs' Complaint against them. The remainder of the Bank Defendants' Motion for Sanctions is denied.
IV. RECOMMENDATION
Based upon the foregoing, this Court recommends the District Court enter an order as follows:
(1) GRANTING Bank Defendants' Motion to Dismiss (Docket No. 12), thereby dismissing all of Plaintiffs' claims against the Bank Defendants.
(2) GRANTING Federal Defendants' Motion to Dismiss (Docket No. 23), thereby dismissing all of Plaintiffs' claims against the Federal Defendants.
(3) DENYING Plaintiffs' Petition for Temporary Injunctive Relief (Docket No. 5).
Written objections to this Report and Recommendation must be filed within ten (10) days pursuant to 28 U.S.C. § 636 (b)(1) and Local Rule 72.1(b)(2) or as a result that party may waive the right to raise factual and/or legal objections in the Ninth Circuit Court of Appeals.