Fujinaga et al v. United States

MOTION to Dismiss for Lack of Jurisdiction

D. Nev.June 11, 2013

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 KATHRYN KENEALLY Assistant Attorney General LEE PERLA Trial Attorney U.S. Dept. of Justice PO Box 683 Washington, DC 20044 Tel: 202-514-9593 Fax: 202-307-0054 Lee.Perla@usdoj.gov DANIEL G. BOGDEN United States Attorney Of Counsel Attorneys for the United States of America UNITED STATES DISTRICT COURT DISTRICT OF NEVADA EDWIN Y. FUJINAGA, an individual identified as President of MRI International, Inc.; MRI INTERNATIONAL, INC., a Nevada Corporation, Petitioner, vs. THE UNITED STATES OF AMERICA, Respondent. No. 2:13-cv-00623-MMD-(CWH) MOTION TO DISMISS PETITION TO QUASH SUMMONSES ISSUED TO MRI INTERNATIONAL, INC. AND ITS CORPORATE OFFICER (EDWIN Y. FUJINAGA) The United States of America (“United States”), through undersigned, pursuant to Rule 12(b)(1), moves for the Court to dismiss the petition to quash the summonses issued to MRI International, Inc. (“MRI”) through its corporate officer, Edwin Y. Fujinaga (“Fujinaga”). In 26 U.S.C. § 7609, Congress waived the United States’ sovereign immunity and created a statutory cause of action for quashing summonses issued to third-parties. However, Congress specifically excluded from § 7609 petitions to quash summonses “served on the Case 2:13-cv-00623-MMD-CWH Document 4 Filed 06/11/13 Page 1 of 3 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 person with respect to whose liability the summons is issued, or any officer or employee of such person.” 26 U.S.C. § 7209(c)(2)(A). Accordingly, neither MRI nor Mr. Fujinaga can show any waiver of the United States’ sovereign immunity or otherwise assert any cause of action here. Thus, the Court should dismiss under Rule 12 for want of jurisdiction. In support of its motion, the United States offers the memorandum in support filed herewith. Respectfully submitted, KATHRYN KENEALLY Assistant Attorney General /s/ Lee Perla LEE PERLA Trial Attorney, Tax Division U.S. Department of Justice PO Box 683 Washington, DC 20044 Tel: (202) 616-9183 DANIEL G. BOGDEN United States Attorney Of Counsel Attorneys for the United States of America Case 2:13-cv-00623-MMD-CWH Document 4 Filed 06/11/13 Page 2 of 3 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 CERTIFICATE OF SERVICE: I HEREBY CERTIFY that service of the foregoing has been made on this date by the Court’s CM/ECF system on the following: Erick M. Ferran, Esq. Hitzke & Associates 3753 Howard Hughes Pkwy, Ste. 200 Las Vegas, NV 89169 Tel: 702-784-7600 Fax: 702-784-7649 ferranlawoffice@gmail.com Attorney for Petitioner /s/ Lee Perla LEE PERLA Trial Attorney, Tax Division U.S. Department of Justice Case 2:13-cv-00623-MMD-CWH Document 4 Filed 06/11/13 Page 3 of 3