U.S.
v.
Kelly

United States District Court, D. Utah, Central DivisionFeb 28, 2005
Case No. 2:03cv00229 DB. (D. Utah Feb. 28, 2005)

Case No. 2:03cv00229 DB.

February 28, 2005


ORDER


Before the Court is defendant Gloria M. Gubler Kelly's motion to dismiss an action brought by the Government for unpaid taxes. For the reasons set forth below, the motion is DENIED.

BACKGROUND

The Government commenced this action on March 3, 2003, seeking to reduce to judgment assessments made against Defendant for unpaid federal income taxes and to foreclose related tax liens on two parcels of property in Washington County, Utah. Defendant, acting without legal counsel, filed an answer to the Government's complaint on June 27, 2003. On October 18, 2004, Defendant filed a document entitled "Affidavit of Specific Negative Averment" in which she set forth a host of creative assertions such as "Affiant denies that the United States District Court is the district court of the United States;" "There is no evidence that the United States Code exists, and Affiant believes that no evidence exists;" and "There is no evidence that the United States of America, a fictional corporate entity exists, and Affiant believes that no evidence exists."

On November 19, 2004, and again on January 18, 2005, defendant filed requests for dismissal based on the Government's failure to respond to her Affidavit of Specific Negative Averment. The Government responded to both of these requests, arguing that its action should not be dismissed.

ANALYSIS

Defendant argues that because the Government did not respond to her Affidavit in a timely manner, the contents of the Affidavit must be accepted as true. Defendant further argues that if the contents of her Affidavit are accepted as true, the Government cannot maintain its action against her. Defendant, however, is mistaken in her assumptions as to the legal significance of submitting an affidavit. An affidavit is not itself a motion or form of written discovery which would require a response from the opposing party. There is no basis in law for dismissing a case based solely on a party's failure to respond to an affidavit within a certain amount of time. Nor is it the function of an affidavit to bring a legal argument before the court. See 3 Am.Jur. 2d. Affidavits § 20. Furthermore, it is questionable whether Defendant's collection of rather non-sensical assertions and conclusions could qualify as an affidavit having any evidentiary value.

In an earlier proceeding before the Court, Defendant was warned that many of her documents, as well as her arguments, had no legal significance and that she should retain an attorney for her defense of the Government's action. It appears that Defendant has not acted upon that warning. In her Affidavit, Defendant makes one assertion with which the Court must agree: "Affiant denies that Gloria M. Gubler Kelly is a Bar attorney with license to represent Gloria M. Gubler Kelly." The truth of this assertion is obvious, and the Court solemnly renews its recommendation that Defendant seek out one who is indeed a licensed member of the bar to assist her with this case.

CONCLUSION

Defendant has presented no legally valid reason to dismiss the Government's action against her. Defendant's motion to dismiss is therefore DENIED.

IT IS SO ORDERED.