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United States of America v. Dennis R. Wicks

November 21, 2011

UNITED STATES OF AMERICA,
PLAINTIFF,
v.
DENNIS R. WICKS; FRANK C. OZAK, AND M. DEAN JORGENSEN, AS TRUSTEES OF FREDA JOHNSON TRUST, DEFENDANTS.



The opinion of the court was delivered by: Jeffrey L. VIKEN United States District Judge

DENYING MOTION TO DISMISS

INTRODUCTION

The government filed a civil complaint against defendants to

(1) reduce to judgment federal tax assessments against Dennis R. Wicks;

(2) obtain a judicial determination that Dennis Wicks has an ownership interest in and to foreclose federal tax liens against two real properties in Custer County, South Dakota; (3) set aside fraudulent conveyances made by defendant Wicks; and (4) have the proceeds from the foreclosure sales distributed as directed by the court. (Docket 1). Defendant Wicks filed a motion to dismiss the complaint. (Docket 10). Briefing is complete and the motion is ripe for resolution.

DISCUSSION

In lieu of filing an answer, Defendant Wicks filed a motion to dismiss for lack of subject matter jurisdiction. (Docket 10, p. 1). The motion was filed in propria persona.*fn1 Id. Defendants Frank C. Ozak and M. Dean Jorgensen, as trustees of Freda Johnson Trust, have neither filed an answer nor joined in Mr. Wick's motion.

As a preliminary matter, the court must address the issue of Mr. Wicks' relationship to the other defendants. It is unclear from Mr. Wicks' motion whether he perceives the motion to be filed on behalf of the other defendants. The law is clear that Mr. Wicks, as a non-lawyer, may not do so. 28 U.S.C. § 1654 provides:

In all courts of the United States the parties may plead and conduct their own cases personally or by counsel as, by the rules of such courts, respectively, are permitted to manage and conduct causes therein.

Without variance, every federal appeals court allows an individual, as a defendant, to proceed pro se under § 1654. "As a general matter of federal law, an individual proceeding in federal court has the right to present his case pro se . . . ." Leftridge v. Connecticut State Trooper Officer No. 1283, 640 F.3d 62, 67 (2d Cir. 2011) (referencing 28 U.S.C. § 1654). However, it is undisputed law "for the better part of two centuries . . . that a corporation may appear in the federal courts only through licensed counsel." Rowland v. Cal. Men's Colony, Unit II Men's Advisory Council, 506 U.S. 194, 201-02 (1993). Courts have uniformly held "that 28 U.S.C. § 1654 . . . does not allow corporations, partnerships, or associations to appear in federal court otherwise than through a licensed attorney." Id. at 202. A non-lawyer may not represent a corporation in federal court. Steele v. City of Bemidji, 257 F.3d 902, 905 (8th Cir. 2001). See Knoefler v. United Bank of Bismarck, 20 F.3d 347, 348 (8th Cir. 1994) ("A non-lawyer, such as these purported 'trustee(s) pro se' has no right to represent another entity, i.e., a trust, in a court of the United States."); Joshua Building Trust v. Clementi, 78 F.3d 588 (8th Cir. 1996) (Table) ("A non-lawyer trustee may not represent a trust pro se in federal court."). See also Lattanzio v. COMTA, 481 F.3d 137, 139-40 (2d Cir. 2007) ("[A] layperson may not represent a separate legal entity such as a corporation. . . . We have extended this reasoning to partnerships and single shareholder corporations, as well as to shareholders who file derivative suits. . . ." (citing Rowland, 506 U.S. at 202 (other internal citations omitted); United States v. 9.19 Acres of Land, More or Less, in Marquette County, Michigan, 416 F.2d 1244, 1245 (6th Cir. 1969) ("The United States District Court was clearly correct in ruling that a corporate president may not represent his corporation before a federal court. 28 U.S.C. § 1654 . . . ."); Turner v. American Bar Ass'n, 407 F. Supp. 451 (N.D. Tex. 1975), aff'd, 539 F.2d 715 (Table), aff'd, 542 F.2d 56 (Table) (corporations and partnerships must be represented by licensed counsel).

While Mr. Wicks is entitled to represent himself, he is not permitted to represent the other defendants. As trustees of a trust, these defendants may only make an appearance in federal district court through a licensed attorney admitted to practice in this court. Knoefler, 20 F.3d at 348; Joshua Building Trust, 78 F.3d at 588. For these reasons, the court will only consider Mr. Wicks' motion as personal to him.

Mr. Wicks argues that since "the office of the Secretary [of the Department of the Treasury]" failed to respond to Mr. Wicks' written demands for proof of the tax assessments and other information, the court lacks subject matter jurisdiction. (Docket 10, pp. 1-6). He argues "in the absence of a record that any assessment was 'made by recording the assessment in the office of the Secretary,' in accordance with 26 U.S.C. § 6203, 'in the District of Columbia, and not elsewhere,' in accordance with 4 U.S.C. § 72, there is no assessment." Id. at p. 7 (emphasis in original). "The lack of any record made in accordance with 44 U.S.C. § 3101, of any 'assessment' purported to have been made in accordance with 26 U.S.C. § 6203, and 4 U.S.C. § 72, deprives this Court of subject-matter jurisdiction . . . and this case must be dismissed with prejudice." Id. at p. 9 (emphasis in original).

The premise of his argument is 26 U.S.C. § 7801(a)(1) places "the administration and enforcement of [the Internal Revenue Code] . . . under the supervision of the Secretary of the Treasury." (Docket 10, ¶ 2). Mr. Wicks fails to acknowledge or recognize the enforcement of the Internal Revenue Code rests ...


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