Opinion

Rotte v. United States

Court
District Court, S.D. Florida
Filed
Sep 15, 2022
Cited by
0 cases
Authority
More cited than 20.2%

The opinion

UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF FLORIDA

FORT PIERCE DIVISION

Case Number: 21-14453-CIV-MARTINEZ-MAYNARD

HAROLD B. ROTTE,

Plaintiff,

VS.

UNITED STATES OF AMERICA,

Defendant.

ORDER ADOPTING MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION

THIS CAUSE was referred to the Honorable Shaniek M. Maynard, United States

Magistrate Judge, for a Report and Recommendation (“R&R”) on all dispositive matters. (ECF

No. 11). Judge Maynard filed an R&R recommending that Defendant’s Motion to Dismiss, (ECF

No. 8), be GRANTED IN PART AND DENIED IN PART. (ECF No. 16). The Court has

reviewed the entire file and record, and notes that no objections have been filed. (ECF Nos. 17 &

18). Accordingly, after careful consideration, it is hereby

ADJUDGED that Judge Maynard’s R&R, (ECF No. 16), is AFFIRMED and

ADOPTED. Further, it is

ADJUDGED that Defendant’s Motion to Dismiss, (ECF No. 8), is GRANTED IN PART

AND DENIED IN PART as follows:

1. The Motion to Dismiss is GRANTED IN PART on grounds of res judicata, and

claims based on the 2004 Tax Liability are DISMISSED WITH PREJUDICE;

2. The Motion to Dismiss is GRANTED and the Complaint DISMISSED

WITHOUT PREJUDICE for lack of subject matter jurisdiction under Fed. R. Civ. P. 12(6)(1)

and for failure to state a claim under Fed. R. Civ. P. 12(b)(6);

3. Plaintiff is afforded one opportunity to amend, within 20 days of this Order, in order

to sufficiently plead a cause of action based on his 2004 Civil Penalty. Plaintiff shall adhere to the

following instructions. Failure to do so may lead to dismissal with prejudice.

i. The amended complaint may provide a brief introductory overview of the case. It

must, however, set forth each cause of action (“Count”) separately in the form of a “short plain

statement of the claim,” and must clearly indicate the nature of each cause of action;

il. Under each count, Plaintiff must identify the specific federal statutes Plaintiff

believes give him a cause of action to seek judicial review of the IRS’ conduct in this case;

iil. The amended complaint must provide the relevant facts, including dates, that

support Plaintiffs claim for relief. Plaintiff must provide facts sufficient to show that each claim

is plausible. Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009);

iv. Any amended complaint must include statements meeting Plaintiff's burden to

establish jurisdiction through a waiver of sovereign immunity and satisfaction of jurisdictional

prerequisites. If Plaintiff makes a claim under 26 U.S.C.§ 7433, Plaintiff must include statements

that meet his burden to show exhaustion of administrative remedies, the specific provision of the

Tax Code/regulation Plaintiff says was disregarded, and the officer/employee alleged to have acted

recklessly, intentionally, or negligently;

v. Plaintiff is cautioned that any amended complaint will supersede and entirely

replace the original complaint. Thus, an amended complaint must contain clear and concise

allegations fully stating the basis for Plaintiffs claims;

4, The Motion to Dismiss is DENIED AS MOOT on grounds of lack of service; and

Di All pending motions are DENIED AS MOOT.

DONE AND ORDERED in Miami, Florida, thi S day 0 tember, 2022.

Sr

UNITED STATES DISTRICT JUDGE

Copies provided to:

Magistrate Judge Maynard

Harold B. Rotte, pro se

All Counsel of Record

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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