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United States of America v. Duane L. Kuyper Individually and As Trustee of Kuyper Family Living Trust; Mary L. Kuyper Individually and As Trustee of Kuyper Family Living

October 3, 2012

UNITED STATES OF AMERICA,
PLAINTIFF,
v.
DUANE L. KUYPER INDIVIDUALLY AND AS TRUSTEE OF KUYPER FAMILY LIVING TRUST; MARY L. KUYPER INDIVIDUALLY AND AS TRUSTEE OF KUYPER FAMILY LIVING
TRUST; KUYPER FAMILY LIVING TRUST; VISION UNLIMITED; AND RAYMOND EHRMAN AS TRUSTEE OF VISION UNLIMITED, DEFENDANTS.



The opinion of the court was delivered by: Richard G. Kopf Senior United States District Judge

MEMORANDUM AND ORDER

This is a civil action in which the United States seeks to reduce to judgment federal income tax assessments made against Duane Kuyper and Kuyper Family Living Trust and to foreclose federal tax liens against certain real property located in Stickney, South Dakota. Duane Kuyper's wife, Mary, and a second trust, Vision Unlimited, may also claim interests in the real property. As outlined below, little progress has been made in the case since its commencement on December1, 2011.

On December 29, 2011, an answer and third-party complaint (Docket no. 9) was filed by Raymond Ehrman, who alleged that he was the trustee of Vision Unlimited,*fn1 and by Duane and Mary Kuyper, in their individual capacities only. All appeared pro se (i.e., without counsel).*fn2 Named as third-party defendants in this pleading were James M. Daugherty, Brendan V. Johnson, Daniel A. Applegate,*fn3 the Internal Revenue Service, the United States District Court for the District of South Dakota,*fn4 the Office of the Inspector General, and the Congress of the United States.

On January 13, 2012, the United States filed a motion (Docket no. 20) to strike the answer and third-party complaint. For the most part, the motion was granted: The third-party complaint was stricken in its entirety; Ehrman was declared a non-party; the Kuypers' answer was stricken except insofar as they entered a general denial; and a request for change of venue (to Washington, D. C.) was denied. See Memorandum and Order entered February 29, 2012 (Docket no. 24).

Notwithstanding the court's order and the previously filed answer, a motion to dismiss the complaint was filed by Ehrman and the Kuypers on March 6, 2012 (Docket no. 25). This pro se motion was summarily denied on April 2, 2012, but, upon the request of the United States, leave was granted for the filing of an amended complaint in which Ehrman was substituted as the trustee of Vision Unlimited. See Memorandum and Order entered April 2, 2012 (Docket no. 29).

The amended complaint (Docket no. 30) was filed on April 3, 2012. A few days later, on April 6, 2012, the clerk of the court entered default against Kuyper Family Living Trust (Docket no. 33).*fn5

On April 25, 2012, Ehrman, as trustee of Vision Unlimited, filed a motion (Docket no. 35) to dismiss the amended complaint on numerous grounds.*fn6 The motion was denied in all respects for reasons stated in the court's Memorandum and Order entered on May 29, 2012 (Docket no. 40).

On June 13, 2012, an "answer and counterclaim" (Docket no. 41) was filed. This pro se pleading was signed by Ehrman, as trustee of Vision Unlimited and as "reactivated" trustee of Kuyper Family Living Trust, and also by the Kuypers, both personally and as officers of Vision Unlimited.*fn7

On July 17, 2012, the United States filed a motion "to dismiss the counterclaim filed by Raymond Ehrman, Duane L. Kuyper, and Mary L. Kuyper for lack of subject matter jurisdiction and failure to state a claim upon which relief can be granted under Federal Rules of Civil Procedure 12(b)(1) and (6)," and, "pursuant to Federal Rule of Civil Procedure 14(a)(4) to strike the counterclaim to the extent that it is actually a third-party complaint, seeking to add as third-party defendants Judge Richard G. Kopf and Revenue Officer James Daugherty." (Docket no. 42 at 1-2) This motion is now before the court, along with two subsequently filed motions.

On July 26, 2012, Ehrman and the Kuypers, again appearing pro se and in the same capacities as before, filed an "amended answer and counterclaim" (Docket no. 43) in response to the government's motion to dismiss.*fn8 On August 13, 2012, the United States filed a motion (Docket no. 44) to dismiss or to strike the amended counterclaim and renewed its previously filed motion (Docket no. 42). A counter-motion "to require reply to counterclaim" (Docket no. 45) was then filed by the defendants on August 8, 2012.

DISCUSSION

On the court's own motion, the answers and counterclaims filed by Ehrman as trustee of Vision Unlimited, and by the Kuypers as officers of Vision Unlimited, will be ordered stricken because the trust and trustee may only appear in this action though a licensed attorney. Also on the court's own motion, the answers and counterclaims filed by Ehrman as "reactivated" trustee of Kuyper Family Living Trust will be ordered stricken for the same reason and, in addition, because default was entered against Kuyper Family Living Trust. Only the Kuypers appearing in their individual capacities will be permitted to proceed without counsel.*fn9

The government's motions to dismiss or to strike the Kuypers' individual counterclaims will be granted in part.*fn10 The defendants' motion to require a responsive pleading to their counterclaims will be denied.

1. Pro Se Pleadings

Only a licensed attorney is permitted to represent Vision Unlimited and Kuyper Family Living Trust, or their trustees,*fn11 in this litigation. See Knoefler v. United Bank of Bismarck, 20 F.3d 347, 348 (8th Cir. 1994) (non-lawyer trustee cannot represent the trust in federal court); Rowland v. California Men's Colony, 506 U.S. 194, 202-03 (1993) (artificial entities may appear in federal courts only through licensed attorneys). Thus, Ehrman and the Kuypers are only permitted to represent their own individual interests. See 28 U.S.C. § 1654 ("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."). Ehrman, however, has not been named as a defendant in his individual capacity and has no personal stake in the matter.

The rule that "[a] person who has not been admitted to the practice of law may not represent anybody other than himself . . . exists to serve not only the interests of the represented party but also the interests of the adversaries and the court, because the entire judicial system benefits from the professional knowledge of practicing attorneys." Guest v. Hansen, 603 F.3d 15, 20 (2d Cir. 2010) (internal quotations and citations omitted). Accordingly, a federal court will consider whether all parties before it are properly represented even in cases where the parties themselves do not raise the issue. See id. (considering sua sponte whether administrator of estate could appear pro se); see also Stack v. Saunders County Corrections, No. 4:11CV3197, 2012 WL 479692, *2 (D.Neb. Feb. 13, 2012) (sua sponte dismissal of claims filed by non-attorney on behalf of others).

Although the court previously considered a pro se motion to dismiss that was filed by Ehrman as trustee of Vision Unlimited (Docket no. 35), this was done in error- the motion should have been stricken as an unauthorized filing rather than being denied on the merits. To correct this error, the motion to dismiss now will be ordered stricken.*fn12

The "answer and counterclaim" filed pro se on June 13, 2012 (Docket no. 41), and the "amended answer and counterclaim" filed pro se on July 26, 2012 (Docket no. 43), likewise are improper insofar as such pleadings are made by Ehrman as trustee of Vision Unlimited and "reactivated" trustee of Kuyper Family Living Trust,*fn13 and by the Kuypers as officers of Vision Unlimited. These pro se pleadings are allowable only to the extent that they are filed by the Kuypers in their individual capacities. In all other respects, they will be ordered stricken.

The claims that will be stricken as improper pro se pleadings include a claim for damages that Ehrman attempts to bring in his capacity as a trustee but that only concerns an alleged violation of his individual rights. This claim appears at pages 36 and 37 of the amended counterclaim (Docket no. 43, ¶¶ 116-118) and relates to an arrest warrant issued on July 20, 2012, as the result of an indictment that was filed against Ehrman in federal court. Apart from being an improper pro se pleading, this claim is subject to dismissal on the court's own motion for lack of jurisdiction because Vision Unlimited and Kuyper Family Living Trust (and their trustees or officers) do not have standing to sue on Ehrman's personal behalf.*fn14

2. The Government's Motions to Strike

The pro se pleading filed by Ehrman on behalf of Vision Unlimited and Kuyper Family Living Trust, which is adopted by the Kuypers "personally and as current Officers for Vision Unlimited" (Docket nos. 41 and 43, ¶ 95), identifies Revenue Officer James Daugherty as "the real party in interest, . . . chief actor and only real claimant of record against Vision Unlimited, on which this action is based[,]" and states that "Mr. James Daugherty is now made a real unseparated party, along with a judicial officer-Richard G. Kopf, who thus far signed two 'orders' now found wanting (all hereafter, 'Plaintiff', whether this Court or whoever likes it or not) . . .." (Id. at 1) Ehrman's counterclaim states that 'Plaintiff, United States of America, . . . includ[es] and incorporat[es] all of the following: 'United States', 'Internal Revenue Service', Cincinnati Office, Omaha Office, Mr. James Daugherty, personal and Revenue Officer, and finally Chief Special Procedures Function for the Internal Revenue Service System[.]" (Id., ¶¶ 73, 78)

Claiming that the federal tax liens are unlawful, Ehrman seeks to recover damages in the amount of $1,812,987.00*fn15 for Vision Unlimited (see id., ¶¶ 73-77, 112) and in the amount of $490,612.38*fn16 for Kuyper Family Living Trust (see id., ¶¶ 78-87, 113, 114). These claims are asserted only on behalf of the trusts; the Kuypers do not allege that they are seeking damages in their individual capacities regarding any liens that were filed against real property.*fn17 In addition, Ehrman seeks to recover damages in the amount of $131,258.90*fn18 for Kuyper Family Living Trust regarding past-due tax notices that it received. Again, the Kuypers do not allege that they are seeking damages in their individual capacities regarding this particular claim.*fn19 Duane Kuyper, however, is asserting a similar claim regarding past-due tax notices that he personally received. (See id., ¶¶ 102, 103)

Ehrman also "add[s] to the Counterclaim this claim against Richard G. Kopf and his MEMORANDUM AND ORDER dated May 29, 2012, now part of Plaintiff and this counterclaim against Plaintiff." (Id., ΒΆ 88) He claims that the memorandum and order, in which I denied his motion to dismiss the amended complaint, "is arrested and is void for ruling beyond authorized powers and in breach of oath of office, and Trial by Jury should or will determine damages done by the Plaintiff for forcing the unlawful order." (Id. ...


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