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