United States District Court, D. Colorado
ORDER ON DEFENDANT UNITED STATES’ RENEWED MOTION TO DISMISS DEFENDANT HOOK’S COMPULSORY COUNTERCLAIMS (ECF NO. 156)
RAYMOND P. MOORE United States District Judge
This matter is before the Court on Defendant United States’: (1) Renewed Motion to Dismiss Crossclaims (the “Renewed Motion to Dismiss”) (ECF No. 156) directed at Defendant M. Julia Hook’s “Counterclaims” (“First Counterclaims”) (ECF No. 37); and (2) Response (ECF No. 200) to the Court’s October 23, 2015 Order directing the United States to advise the Court whether the Renewed Motion to Dismiss is also directed at Defendant Hook’s then recently filed “Compulsory Counterclaims” (ECF No. 189). The United States’ Response advises the Renewed Motion to Dismiss is also directed to Hook’s Compulsory Counterclaims. The Court allowed Hook to file a response to the Response and she responded with a Motion to Strike (ECF No. 208). The Court has considered the Renewed Motion to Dismiss, the Response, Hook’s Motion to Strike, the Court file, and the case law, statutes, and rules, and taken judicial notice of Smith v. U.S., Civil Action No. 13-cv-01156-RM-KLM (hereafter the “Smith Action”). Upon consideration of these matters, and being otherwise fully advised, the Renewed Motion to Dismiss, as supplemented by the Response (collectively, hereafter “Renewed Motion to Dismiss, ” unless the context otherwise requires) is GRANTED and the Motion to Strike is DENIED.
I.FACTUAL AND PROCEDURAL BACKGROUND
There are (or were) two lawsuits involving Hook and the United States assigned to this Court. The first action was filed May 1, 2013, by David L. Smith and Hook against the United States “for the recovery of internal-revenue taxes erroneously or illegally assessed or collected, and penalties collected without authority, and sums that are excessive or were collected in a wrongful manner under internal-revenue laws…and to quiet title to real and personal property….” (Smith Action, ECF No. 68.) At issue were Hook’s (and Smith’s) liabilities for the 1992-1996 and 2001-2006 tax years. By Order (“Smith Decision”) dated November 20, 2014, the Court dismissed the Smith Action without prejudice upon motion to dismiss filed by the United States. Hook (but not Smith) appealed.
By Order and Judgment issued on August 19, 2015, the Smith Decision was affirmed by the United States Court of Appeals for the Tenth Circuit. Hook v. United States, No. 15-1022, 2015 WL 4927272 (10th Cir. Aug. 19, 2015) (unpublished) (“Hook Appeal”). By Order issued October 7, 2015, Hook’s petition for rehearing and for rehearing en banc was denied. On October 15, 2015, the Tenth Circuit issued its mandate. Hook represents that she intends to seek further relief from the Tenth Circuit and may file a petition for writ of certiorari to the United States Supreme Court. (E.g., ECF No. 212, page 7.)
Meanwhile, a second action was filed on April 3, 2014, but by Plaintiff LNV Corporation against Hook, the United States, Smith, and others. LN V seeks to foreclose on a deed of trust on property originally titled solely in Hook’s name; a money judgment against Hook on a promissory note; and to set aside Hook’s allegedly fraudulent transfer of the property to herself and Smith as joint tenants. (ECF No. 3.) The United States filed an Answer and Claim (“First Claim”) (ECF No. 30) to LNV’s complaint, to which Hook filed the First Counterclaims against the United States. At issue in those First Counterclaims were Hook’s liabilities for the 1992-1996 and 2001 -2006 tax years - the identical issues raised in the Smith Action. The United States moved to dismiss the First Counterclaims (ECF No. 39, “Motion to Dismiss Crossclaims”). Thereafter, LNV filed a Second Amended Complaint (ECF No. 70), which was followed by a number of filings. They include, as relevant to the issues at hand, the following:
• The United States’ Renewed Motion to Dismiss (ECF No. 156), seeking the same relief as the Motion to Dismiss Crossclaims - the dismissal of Hook’s First Counterclaims;
• The Court’s Order (ECF No. 185) denying the United States’ Motion to Dismiss Crossclaims as moot in light of the filing of the Renewed Motion to Dismiss;
• Hook’s “Compulsory Counterclaims” against the United States - again challenging her tax liabilities for the 1992-1996 and 2001-2006 tax years;
• The United States’ Response, supplementing the Renewed Motion to Dismiss, seeking dismissal of Hook’s Compulsory Counterclaims; and
• Hook’s Motion to Strike the attachments to the Response.
The filings raise a number of issues, including whether the filing of Hook’s Compulsory Counterclaims moots Hook’s First Counterclaims. After its review and analysis of all relevant matters, the Court finds Hook’s filing of her Compulsory Counterclaims moots her First Counterclaims. Accordingly, at issue are the United States Renewed Motion to Dismiss Hook s Compulsory Counterclaims and Hook’s Motion to Strike.
II. STANDARD OF REVIEW
Generally, a motion to dismiss under Fed.R.Civ.P. 12(b)(1) for lack of subject matter may take one of two forms - a facial attack or a factual attack. Stuart v. Colorado Interstate Gas Co., 271 F.3d 1221, 1225 (10th Cir. 2001). In a facial attack, the moving party challenges the complaint’s allegations as to the existence of subject matter jurisdiction. Id. In a factual attack, the moving party goes beyond ...