VALDY PATRIOT,              )   CASE NO. 8:07-CIV-930-x-00-xxx
Plaintiff,                  )
vs.                         )	ORDER GRANTING MOTION
Defendant.                  )

The cause is before the Court on defendant's motion for summary judgment (Docket No. 24), response from the plaintiff (Docket No. 27), and reply thereto (Docket No. 28). The plaintiff filed suit seeking damages stemming from a wrongful levy, pursuant to 26 U.S.C. § 7433. After the filing of the complaint, the defendant offered to return to the plaintiff the alleged wrongful levy, in the amount of $5,387.11, and the filing fee of $350.00. The defendant asked the Court to dismiss the remainder of the complaint, including $100,000.00 in statutory damages and certain costs associated with a prior case. By order (Docket No. 14), the Court granted the request as to the claim for statutory damages but found that the plaintiff should have the opportunity to establish entitlement to other costs than the $350.00 filing fee. The government concedes that there are factual issues in regard to certain costs which might be reimbursable, copy expenses, mailing, etc.

The issue before the Court on the motion for summary judgment related to certain costs which the plaintiff is attempting to assert and which are new claims made by the plaintiff and were not considered at the time of the motion to dismiss nor were they in the complaint. These new claims include: non-economic damages, i.e. pain and suffering (coincidentally for $100,000.00 the amount already denied as statutory damages), damages for changing jobs, attorney’s fees, and a legal support service fee.

This circuit clearly holds that summary judgment should only be entered when the moving party has sustained its burden of showing the absence of a genuine issue as to any material fact when all the evidence is viewed in the light most favorable to the nonmoving party. Sweat v. Miller Brewing Co., 708 F.2d 655 (11th Cir. 1983). All doubt as to the existence of a genuine issue of material fact must be resolved against the moving party. Hayden v. First National Bank of Mt. Pleasant, 595 F.2d 994, 996-7 (5th Cir. 1979), quoting Gross v. Southern Railroad Co., 414 F.2d 292 (5th Cir. 1969). Factual disputes preclude summary judgment.

The Supreme Court of the United States held, in Celotex Corp. v. Catrett, 477 U.S. 317, 91 L.Ed.2d 265, 106 S.Ct. 2548, (1986):

In our view the plain language of Rule 56©) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. Id. at 273.

The Court also said, "Rule 56(e) therefore requires that nonmoving party to go beyond the pleadings and by her own affidavits, or by the 'depositions, answers to interrogatories, and admissions on file,' designate 'specific facts showing there is a genuine issue for trial.'" Celotex Corp., at p. 274. As the district court in Coghlan v. H.J. Heinz Co., 851 F.Supp. 808 (N.D. Tex. 1994), summarized:

Although a court must "review the facts drawing all inferences most favorable to the party opposing the motion,"...the nonmovant may not rest on mere allegations or denials in its pleadings; in short, "the adverse party's response... must set forth specific facts showing that there is a genuine issue for trial." FED.R.CIV.P. 56(e). However, merely colorable evidence or evidence not significantly probative will not defeat a properly supported summary judgment...The existence of a mere scintilla of evidence will not suffice...(cites omitted) at 810-811.

The Court must “draw inferences from the evidence in the light most favorable to the nonmovant and resolve all reasonable doubts in that party’s favor.” Speciality Malls of Tampa v. The City of Tampa, 916 F.Supp 1222 (Fla. M.D. 1996). (emphasis added) A court is not required to allow a case to go to trial “when the inferences that are drawn from the evidence, and upon which the non-movant relies are implausible.’” Mize v. Jefferson City Board of Education, 93 F.3d 739, 743 (11th Cir. 1996).

In the order on motion to dismiss, the Court found that the plaintiff might be able to recover “‘actual economic damages incurred as a proximate result of the actions of an Internal Revenue Service employee.’...the cost of mailing summons and transportation cost.” Order at 5. The motion for summary judgment and reply to the plaintiff’s response are absolutely correct that these “new” claims are not recoverable to the plaintiff. It appears that the total amount of actual assessable economic damages the plaintiff has requested amounts to $200.00, in addition to the amounts already payable or paid, the alleged wrongful levy, in the amount of $5,387.11, and the filing fee of $350.00. Even though the government thinks the $200.00 is an overstated amount for mailing, copying and travel, the government is willing to accept a judgment against it in the amount of $200.00 to avoid a trial and resolve the case, assuming all other claims are denied.

The Court has reviewed this entire case and is in complete agreement with the defendant. The Court denied the motion to dismiss only as to allow the defendant to establish any entitlement he might have for “actual economic damages incurred as a proximate result of the actions of an Internal Revenue Service employee.”, such as costs of mailing and transportation. None of the new claims are available to the defendant. Since the government is willing to accept a judgment in the amount of actual economic costs alleged by the defendant in the amount of $200.00, the Court will adopt this resolution of this case. Accordingly, it is ORDERED that the motion for summary judgment (Docket Nos. 24 and 28) be granted and the Clerk of Court is directed to enter judgment for the plaintiff and against the defendant in the amount of $200.00, in addition to the amounts already payable or paid, the alleged wrongful levy, in the amount of $5,387.11, and the filing fee of $350.00. All other claims for costs are denied. The Clerk of Court is further directed to close this case.

DONE and ORDERED in Chambers, in Tampa, Florida, this 4th day of June, 2008.

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