United States District Court, W.D. Oklahoma
DICK HAMES, deceased, by and through personal representative VICKI ALLRED, Plaintiff,
OKLAHOMA TAX COMMISSION and INTERNAL REVENUE SERVICE, Defendants.
TIMOTHY D.DEGIUSTI UNITED STATES DISTRICT JUDGE
the Court is the United States' Motion to Dismiss [Doc.
No. 9], filed pursuant to Fed.R.Civ.P. 12(b)(1) and (b)(5).
Plaintiff has responded in opposition to the Motion, which is
commenced this action by filing a “Complaint Seeking
Disbursement of Funds” [Doc. No. 1], which also seeks
“to resolve the issue of any outstanding liens or
interests.” Plaintiff is identified as “Dick
Hames, deceased, ” but the action is brought by a
personal representative of the decedent's estate, Vicki
Allred, who was appointed in a pending probate case in Grady
County, Oklahoma. The Complaint alleges that the only
remaining potential creditors of Mr. Hames' estate are
Defendants Oklahoma Tax Commisison (“OTC”) and
Internal Revenue Service (“IRS”), that they were
given notice of the probate proceeding in October 2016, that
neither made any filing in the probate case, and that
“out of an abundance of caution, ” Plaintiff
brings this action to obtain an order authorizing Plaintiff
to distribute the remaining proceeds of a life insurance
policy. See Compl. ¶ 7. The Complaint contains
no allegations regarding subject matter jurisdiction; it
neither cites any jurisdictional statute nor states any basis
for an exercise of federal jurisdiction.
Complaint was filed August 23, 2017. Plaintiff first obtained
the issuance of a summons for the IRS on November 14, 2017,
and served the United States Attorney for this judicial
district. The Court issued its Order to Show Cause pursuant
to Fed.R.Civ.P. 4(m) on November 29, 2017, and based on
Plaintiff's response, extended the deadline for service
to December 21, 2017. Plaintiff subsequently filed proof of
service of the IRS by mail at its Oklahoma City office on
December 20, 2017. To date, Plaintiff has not provided proof
of mailing copies of the summons and the Complaint to the
United States Attorney General by certified or registered
mail, as required by Fed.R.Civ.P. 4(i)(1)(B).
United States moves for dismissal of the action against it
because Plaintiff has failed to accomplish service of process
as required by Fed.R.Civ.P. 4(i) and has failed to allege any
basis for suing the United States that would provide a waiver
of sovereign immunity. The United States recognizes that under
certain circumstances, it may be named as a party in a civil
action regarding “property on which the United States
has or claims a . . . lien.” See 28 U.S.C.
§ 2410(a). However, Plaintiff's Complaint lacks the
necessary information for a pleading in such an action.
See id. § 2410(b). The United States also notes
the sparse allegations of the Complaint do not permit a
determination whether the subject property is within the
jurisdiction of the probate court and so protected by the
“probate exception” to federal jurisdiction.
See Def.'s Mot. Dismiss at 3 n.2.
makes no effective response to the United States' grounds
for dismissal. Plaintiff ignores the requirement of Rule
4(i)(B), arguing only that the IRS and the United States
Attorney were properly served. Regarding jurisdiction and
sovereign immunity, Plaintiff asserts only that the omission
of “specific itemization of the tax liens in question,
” as required by § 2410(b), “could be
corrected by amendment of the Complaint.” See
Pl.'s Resp. Br. [Doc. No. 10] at 2. Although Plaintiff
argues that “the deficiency is easily
correctible” and “amendment should be
allowed” (id.), Plaintiff has not filed an
amended pleading. Nor does Plaintiff identify a basis of
federal subject matter jurisdiction.
consideration of Plaintiff's response to the United
States' Motion under the existing record, the Court finds
that the action against the United States must be dismissed
for lack of jurisdiction. Plaintiff bears the burden to
establish subject matter jurisdiction and, as to the United
States, its consent to suit or other specific waiver of
sovereign immunity. See Rivera v. Internal Revenue
Serv., 708 Fed.Appx. 508, 510-11 (10th Cir. 2017)
(unpublished) (quoting United States v.
Mitchell, 463 U.S. 206, 212 (1983); Fostvedt v.
United States, 978 F.2d 1201, 1203 (10th Cir. 1992));
see also United States ex rel. Stone v. Rockwell
Int'l Corp., 282 F.3d 787, 797-98 (10th Cir. 2002)
(plaintiff has “the burden of alleging the facts
essential to show jurisdiction”). Plaintiff's
Complaint is clearly deficient to allege a basis of
jurisdiction for an action against the United States.
Plaintiff concedes this fact, but has made no effort to cure
this fundamental defect in her case. Plaintiff also presents
no reason why she has failed to perfect service on the United
States, which she was ordered to complete more than three
months ago. For these reasons, the Court finds that the
United States' Motion should be granted.
the Court questions whether the same jurisdictional issues
raised by the United States may apply equally to
Plaintiff's suit against the OTC. A state enjoys Eleventh
Amendment immunity from suit in federal court, regardless
whether a plaintiff seeks monetary relief. See In re
Chandler, 251 B.R. 872, 875 (B.A.P. 10th Cir. 2000).
“There is no Oklahoma statute or constitutional
provision waiving the OTC's sovereign immunity.”
Id. at 878.
THEREFORE ORDERED that the United States' Motion to
Dismiss [Doc. No. 9] is GRANTED. Plaintiff's action
against the Internal Revenue Service is DISMISSED without
FURTHER ORDERED that Plaintiff shall show cause within 14
days from the date of this Order why her action against the
Oklahoma Tax Commission should not be dismissed for lack of
 The time for filing a reply brief has
expired. See ...