Free Memorandum in Opposition - District Court of California - California

Case 5:07-cv-03141-JF Document 41 Filed O1/O2/2008 Page 1 of 4
» 1 SCOTT N. SCHOOLS (SCSBN 9990)
United States Attorney
2 THOMAS MOORE (ASBN 4305-O78T)
Assistant United States Attomey
3 Chief} Tax Division
DAVID L. DENIER (CSBN 95024)
4 Assistant United States Attorney
5 9th Floor Federal Building
450 Golden Gate Avenue, Box 36055
6 San Francisco, CA 94102
Telephone: (415) 436-6888
7 Fax: (415) 436-6748
8 Attorneys for the United States of America
9 IN THE UNITED STATES DISTRICT COURT FOR THE I p
10 NORTHERN DISTRICT OF CALIFORNIA .
11 SAN JOSE DIVISION
12 VICKI R. SEIDEL, )
) NO. C-07-3141-JF
13 Plaintiff, )
)
14 v. ) UNITED STATES’ OPPOSITION
) TO PLAINTIFF’S MOTION FOR
15 UNITED STATES OF AMERICA, ) LEAVE TO FILE DEMAND FOR .
) JU RY TRIAL A
1 6 Defendant. ) ‘

17
1 8 I. PRELIMINARY STATEMENT
S 1 9 This is an action for injunctive relief brought by plaintiff pursuant to I.R.C. §§ 742l(a)
20 and 7426(b) and Rule 65(b) of the Federal Rules of Civil Procedure. Plaintiff seeks an injunction
2 1 ordering the Internal Revenue Service to return $321.30 allegedly seized from Washington
22 Mutual Bank, account no. 0980711488 on or about May 29, 2007, ordering the Internal Revenue
2 3 Service to return any monies seized pursuant to a levy of plaintiffs salary and restraining the `
24 Internal Revenue Service from further levies on plaintiffs bank accounts and salary.
25 H. STATEMENT OF FACTS A
2 6 On June 14, 2007, plaintiff Vicki R. Seidel tiled this wrongful levy action seeking
2 7 injunctive relief against the United States. The complaint did not contain a demand for jury trial.
28 On July 12, 2007, the government filed its answer to the complaint. The government did not

Case 5:07-cv-03141-JF Document 41 Filed O1/O2/2008 Page 2 of 4
1 tile a counterclaim, nor did the government make a demand for jury trial. Five and a half months
2 after the government tiled its answer, on December 28, 2007, plaintiff tiled this motion for leave
3 to file demand for jury trial.
4 Il]. QUESTIONS PRESENTED A
5 (1) Whether plaintiff waived her right to demand a trial by jury? _
6 (2) Notwithstanding her untimely demand for jury trial, whether plaintiff is entitled to a
7 trial by jury on the issues in this action? I
8 IV. ARGUIVIENT
9 A. Plaintiff Has Waived Her Right To Demand A Trial By J gy
10 A party waives a jury trial unless its demand for jury trial is properly served and filed.
1 1 Fed. R. Civ. P. 38(d). "Any party may demand a trial by jury of any issue triable of right by a
12 jury by (1) serving upon the other parties a demand therefor in writing at any time after the '
13 commencement of the action and no later than 10 days after the service of the last pleading
A 14 directed to such issue .... " Fed. R. Civ. P. 38(b).
15 ` "Issue," as used in Rule 38(b), means an issue of fact, and such issue is not fully
1 6 developed until all parties have denied, admitted or claimed a lack of knowledge relating thereto.
17 Therefore, if defendants are jointly liable on a cause that contains any issue triable of right by a
18 jury, then a jury demand as to the issue is timely if served within 10 days after service of the last
1 9 defendant’s answer. Where a defendant tiles with its answer a counterclaim, that involves the
20 same factual issues as the plaintiffs complaint, a plaintiffs jury demand served within 10 days
2 1 of its reply is timely as to both the counterclaim and the original claim. Bentler v. Bank of
22 America, 959 F.2d 138, 141 (9th Cir. l992)(citations omitted).
2 3 The last pleading in the present case was the govemment’s answer which was filed and
24 served on July 12, 2007. If there is an issue triable of right by jury in this action, plaintiff was
25 required to serve a demand for jury trial in writing on the government no later than July 22, 2007.
2 6 Plaintiff s failure to serve and file a demand as required by Rule 38(b) constitutes a waiver by her
27 of trial by jury. Fed. R. Civ. P. 38(d). _
28 /// -
U.S.’ Opp. To Pltff s Mot. For Leave To
File Demand For Jury Trial (N 0. C-07-3141-JF) 2

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1 B. Plaintiff Is Not Entitled To A Trial By Jgry On The Issues In This Action
2 Plaintiff is not entitled to jury trial for any issues raised in this action. Because there is no
3 common law right of action against the sovereign, the Seventh Amendment right to jury trial
4 does not apply in actions against the United States. Glidden C0. v. Zdanok, 370 U.S. 530, 572
5 (1962); McElrath v. United States, 102 U.S. 426, 440 (1880); McCoy v. Commissioner, 696 F.2d
6 1234, 1237 (9th Cir. 1983). _
7 The United States, as sovereign, is immune from suit, except to the extent that it consents
8 to be sued. The terms of its consent to be sued in any court define that court’s jurisdiction to
9 entertain the suit. Lehman v. Nakshian, 453 U.S. 156, 160 (l98l)(upon waiver government sets
10 terms to be sued under). Thus, if Congress waives the government’s immunity from suit, the —
11 plaintiff has a right to a trial by jury only if that right is one of the terms of the government’s
12 consent to be sued.
13 The United States has waived its immunity from suit in the case of a wrongful levy.
14 I.R.C. § 7426(a). However, in consenting to be sued for a wrongful levy, the United States has
15 not consented to a trial by jury. See I.R.C. § 7426. This court has original jurisdiction of any
16 civil action against the United States under section 7426. 28 U.S.C. § l346(e). Any action
17 against the United States under section 1346, shall be tried by court without a jury, except that an
18 action against the United States under section 1346(a)(1) shall, at the request of either party to
19 such action, be tried by the court with a jury. 28 U.S.C. § 2402. Thus, Congress has explicitly
20 provided that a plaintiff in an action under I.R.C. § 7426 is not entitled to a jury trial.
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2 6 /// S A V
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U.S.’ Opp. To Pltfi’s Mot. For Leave To E
File Demand For Jury Trial (No. C-07-3141-JF) 3

Case 5:07-cv-03141-JF Document 41 Filed O1/O2/2008 Page 4 of 4
1 V. CONCLUSION I
2 For the foregoing reasons, plaintiffs motion for leave to file demand for jury trial should
3 be denied. I
I
Respectfully submitted,
5 SCOTT N. SCHOOLS
6 ` d States Attorney
7 AL
-8 DAVID L. DENTER
Assistant United States Attorney
9 Tax Division
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U.S.’ Opp. To Pltffs Mot. For Leave T0
File Demand For Jury Trial (No. C-07-3141-JF) 4

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