Opinion
Civil No. CIV-00-0486-N-EJL
May 5, 2001
UNITED STATES' MEMORANDUM IN SUPPORT OF ITS SECOND MOTION FOR ENTRY OF DEFAULT JUDGMENT AGAINST GORDON L. ORMESHER
The United States of America, by and through its undersigned counsel, respectfully submits this memorandum in support of its second motion for entry of default judgment against defendant Gordon L. Ormesher (hereinafter, "Mr. Ormesher") filed herewith.
STATEMENT
On August 30, 2000, the United States commenced this civil action seeking to reduce to judgment various federal tax assessments against defendants Gordon L. Ormesher and Althea L. Ormesher, jointly, for the tax years 1986, 1987, and 1988, and defendant Gordon L. Ormesher for the tax years 1990, 1991, 1992, 1993, 1994, and 1995, and to foreclose its federal tax liens against a parcel of real property.
On September 8, 2000, Mr. Ormesher was personally served with a copy of the Complaint and summons. See Declaration of David Cheng, at ¶ 2. On October 4, 2000, Mr. Ormesher filed pleadings with the Court titled "Notice of Appearance Pursuant 28 U.S.C. § 1330 (c) With Affidavit in Support" and "Request for Hearing on Claim of Foreign Sovereign Immunity." See Declaration of David Cheng, at ¶ 3. On January 29, 2001, the United States moved for an entry of default judgment against Mr. Ormesher, contending that neither of these pleadings is an appropriate response to the Complaint in accordance with Rule 12 of the Federal Rules of Civil Procedure.
On February 2, 2001, this Court entered an Order. Having determined that Mr. Ormesher's pleadings should be construed as a Motion to Dismiss, this Court denied both the United States' motion for entry of default and Mr. Ormesher's motion to dismiss. See Declaration of David Cheng, at ¶ 4. Further, Mr. Ormesher was required to file an answer ten days after notice of this Court's denial of his motion to dismiss.See Declaration of David Cheng, at ¶ 4. As of the date of this memorandum, Mr. Ormesher has failed to plead or otherwise defend the Complaint, nearly seven (7) months after he was served and over two (2) months after notice of this Court's denial of his motion to dismiss. See Declaration of David Cheng, at ¶ 5. On April 2, 2001, the Clerk of the Court entered default against Mr. Ormesher pursuant to Rule 55(a) of the Federal Rules of Civil Procedure. See Declaration of David Cheng, at ¶ 7.
ARGUMENT
Under Rule 12(a)of Federal Rules of Civil Procedure, a defendant has twenty (20) days after being served with the summons and complaint or ten (10) days after notice of the court's denial of a motion, to serve an answer. See Fed.R.Civ.P. 12(a)(1)(a) and (a)(4)(A). Further, Rule 55 of the Federal Rules of Civil Procedure provides that "when a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend," the party may be defaulted. As the Ninth Circuit observed in H.F. Livermore Corp. v. Aktiengesellschaft Gebruder Loepfe, 432 F.2d 689 (9th Cir. 1970), default judgements
must normally be viewed as available only when the adversary process has been halted because of an essentially unresponsive party. In that instance, the diligent party must be protected lest he be faced with an interminable delay and continued uncertainty as to his rights. The default judgment remedy serves as such a protection. Furthermore, the possibility of a default is a deterrent to those parties who choose delay as part of their litigative strategy.H.F. Livermore Corp., 432 F.2d at 691. In this case, it is clear that Mr. Ormesher attempted to delay this litigation by filing pleadings with frivolous arguments. Mr. Ormesher has failed to plead or otherwise defend the Complaint, nearly seven (7) months after he was served and over two (2) months after notice of this Court's denial of his motion to dismiss.
Further, Certificates of Assessments and Payments (Form 4340) are "routinely used to prove that tax assessment[s] ha[ve] in fact been made," Geiselman v. United States, 961 F.2d 1, 6 (1st Cir.), cert. denied, 506 U.S. 891 (1992), and are presumptive proof of a valid assessment. Huff v. United States, 10 F.3d 1440, 1445 (9th Cir. 1993),cert denied, 512 U.S. 1219 (1994); Hughes v. United States, 953 F.2d 531, 535 (9th Cir. 1992). The Form 4340 is highly probative and, in the absence of contrary evidence, is sufficient to establish that an assessment was properly made and that notices and demand for payment were sent. Hushes, 953 F.2d at 535; Farr v. United States, 990 F.2d 451 (9th Cir.), cert. denied, 510 U.S. 1023 (1993); United States v. Garren, 893 F.2d 208, 210 (9th Cir. 1989).
In this case, Certificates of Assessments and Payments for the tax liabilities at issue are attached as Exhibits 1 and 9 to the Declaration of David Cheng submitted concurrently herewith. These Certificates of Assessments and Payments establish the following: (1) that the tax liabilities were properly assessed against Mr. Ormesher ( 26 U.S.C. § 6201-6203); (2) that notices and demand for payment of the liabilities were properly sent ( 26 U.S.C. § 6303(a) and 6321); and (3) that Mr. Ormesher is presumptively liable for the unpaid taxes, penalties and interest shown on those Certificates.Huff, 10 F.3d at 1445-47; Hansen v. United States 7 F.3d 137, 138 (9th Cir. 1993).
Based on these Certificates of Assessments and Payments, Mr. Ormesher is liable to the United States in the amount of $10,357.22 for the tax years 1986, 1987, and 1988, and in the amount of $244,962.57 for the tax years 1990, 1991, 1992, 1993, 1994, and 1995, plus statutory interest from the dates of the assessments, as provided by law. See Exhibits 1 to 9, attached to the Declaration of David Cheng. Moreover, based on the stipulations and agreements entered by the United States and defendant Gilbert Properties, Inc., it is clear that defendant Gilbert Properties, Inc. holds title to the real property located at 1537 E Gilbert, Coeur d'Alene, Idaho, and legally described in paragraph 10 of the Amended Complaint as the nominee of defendants Gordon L. Ormesher and Althea L. Ormesher, and that Mr. Ormesher is therefore one of the owners of the real property. See Stipulation and Agreement, dated January 5, 2001; Supplemental Stipulation and Agreement, dated March 5, 2001,
Based on the foregoing, a default judgment therefore should be entered against Mr. Ormesher as he has failed to answer or otherwise defend this action within the time allowed by the Rules for doing so.
CONCLUSION
The Court should enter default judgement against defendant Gordon L. Ormesher, as he has not responded to the Complaint, nearly seven (7) months after he was served and over two (2) months after notice of this Court's denial of his motion to dismiss.