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1 Defendant Donald M. Senick has not been served and is

therefore not obligated to respond to plaintiffs’ complaint. 

(See Pls.’ Opp’n to Removal & Req. for Remand at 3); see also In

re Campbell, 105 B.R. 19, 21 (9th Cir. Bankr. 1989)(noting party

had no obligation to respond to complaint until served). Nor

1

 UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

----oo0oo----

FLOYD A. WRIGHT and ARTHUR

STIGALL,

NO. CIV. S-04-1637 WBS PAN PS

Plaintiffs,

v. MEMORANDUM AND ORDER

RE: PLAINTIFFS’ MOTION TO

REMAND AND DEFENDANT MARTIN’S

MOTION TO DISMISS AND MOTION

TO COMPEL

DONALD M. SENICK, HAROLD E.

MARTIN, and unknown parties

named as DOES 1-10 claiming

any interest in the real

property described in the

complaint,

Defendants.

----oo0oo---- 

Plaintiffs characterize this as an action for quiet

title to set aside an allegedly void deed sold “pursuant to an

[allegedly] invalid Internal Revenue Service auction.” (See

Pls.’ Compl. ¶ 10). Defendant Martin (hereinafter “defendant”)1

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have plaintiffs named any other defendants in this action. 

2 Defendants contend that the Internal Revenue Service

(“IRS”) is an indispensable party. However, as noted infra, the

real indispensable party is the United States. 

3 This is a prior case wherein similar issues were

raised. The court relies on this case for background facts

because plaintiffs do not supply them in their complaint in this

case and defendant does not cite any sources for this

information. (See Pls.’ Compl.; Def.’s Opp’n to Pls.’ Mot. to

Remand at 2). 

2

disputes this characterization and has invoked this court’s

jurisdiction pursuant to 28 U.S.C. § 1331 (federal question

jurisdiction) and 28 U.S.C. § 1441(a)(permitting removal of

actions to the district court based on original subject matter

jurisdiction), contending, inter alia, that plaintiffs have

failed to join an indispensable party to this case.2 

Plaintiffs move for remand. Defendant Martin moves the court to

dismiss plaintiffs’ claims and for an injunction prohibiting

plaintiff Arthur Stigall from filing any more lawsuits regarding

this matter without prior court approval, or in the alternative,

to compel Mr. Stigall to attend his deposition. 

I. Factual and Procedural History

Several years ago, plaintiff Edwards owned the real

property located in Yuba County at 5792 Montclair Avenue,

Marysville, California (hereinafter “the Property”), which he

sold to the M.B. Edwards Trust. (See July 1, 2002 Findings and

Recommendations at 2 in Edwards v. Martin, 02-450 DFL GGH PS

(E.D. Cal. 2002)).3 In December 1982, the IRS recorded a lien

against the Property on the basis of taxes allegedly owed by the

Edwards Trust. The IRS then sold the Property to Donald Senick

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3

during an auction in September 1995. In December 1998, Senick

sold the Property to defendant Martin. (Id.). Thereafter,

plaintiff Stigall claims to have purchased the Property from the

M.B. Edwards Trust in January 1998. 

On or about April 30, 2004, plaintiffs filed a

complaint in the Superior Court of the California, County of Yuba

asserting jurisdiction pursuant to California Code of Civil

Procedure § 760.040 (equitable actions to quiet title). The

complaint is styled “a complaint to Quiet Title and Set-a-side

[sic] a Void Deed to [the Property].” (See Def.’s Notice of

Removal of Action Under 28 U.S.C. § 1441(B) Ex. A (Pls.’

Compl.))(capitalization in original). On August 12, 2004,

defendant Martin removed the action to this court. (See Id.). 

Jurisdiction for the matter was referred to a magistrate judge

pursuant to 28 U.S.C. § 636, et seq., and Local Rule 72-302. 

After reviewing the parties’ briefs, the magistrate

judge issued findings and recommendations on May 25, 2005 in

which he recommended that plaintiffs’ motion to remand be denied

and that the action be dismissed, rendering moot defendant’s

motion to compel. (May 25, 2005 Findings & Recommendations at 1-

2). On June 6, 2004, plaintiffs filed objections to the findings

and recommendations. On June 10, 2005, defendant filed a reply

to plaintiffs’ objections to the findings and recommendations. 

The court reviews the three motions in this case de novo. See 28

U.S.C. § 636(b)(1)(c); Fed. R. Civ. P. 72(b); Local Rule 72-304.

///

///

///

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4

II. Discussion

A. Plaintiffs’ Motion to Remand

(i) Timeliness of Removal

Defendant Martin removed this action to federal court

on August 12, 2004 pursuant to 28 U.S.C. § 1331, and 28 U.S.C. §

1441(b). Plaintiffs contend that removal is improper because it

was not made within the 30-day limitation of 28 U.S.C. § 1446(b)

which provides,

The notice of removal of a civil action or proceeding shall

be filed within thirty days after the receipt by the

defendant, through service or otherwise, of a copy of the

initial pleading setting forth the claim for relief upon

which such action or proceeding is based, or within thirty

days after the service of summons upon the defendant if such

initial pleading has then been filed in court and is not

required to be served on the defendant, whichever period is

shorter. 

28 U.S.C. § 1446(b). 

The Supreme Court has interpreted this statute to mean

that a “named defendant’s time to remove is triggered by

simultaneous service of the summons and the complaint, or receipt

of the complaint, ‘through service or otherwise,’ after and apart

from service of the summons, but not by mere receipt of the

complaint unattended by any formal service.” Murphy Bros., Inc.

v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 347-48

(1999)(emphasis added). The Court has also identified four main

categories for service of summons and the filing or service of

the complaint. With regard to the category relevant to this

case, the Court states, “if the complaint is filed in court prior

to any service, the removal period runs from the service of the

summons.” Id. at 354 (emphasis added). This court has further

clarified that the running of the 30-day limit does not begin

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4 Plaintiffs acknowledge that Senick has not been served.

Plaintiffs state “Senick can either be ignored or the complaint

can be amended to eliminate him from the action. In the

alternative Senick can be served by publication.” (Objections to

Magistrate Judge’s Findings & Recommendations at 10-11).

5

until a defendant is “effectively served” in accordance with law. 

Dale v. IRS, 2001 U.S. Dist. LEXIS 7013, *6 (E.D. Cal. 2001).

Plaintiffs filed their original complaint on April 30,

2004. (See Compl.). To date, plaintiffs have not filed any

proof of service of summons upon Senick.4 “An individual or

entity named as a defendant is not obliged to engage in

litigation unless notified of the action, and brought under a

court’s authority by formal process.” Jeong v. Onoda Cement Co.,

2000 U.S. Dist. LEXIS 7985, *23 (C.D. Cal. 2000). Therefore, “a

defendant . . . cannot be required to join in a removal notice

filed before it was served.” Id. Applying this logic, Senick

has not become a true participant in the action because he has

not been served, and is not required to join in Martin’s notice

of removal. This means that only defendant Martin had to meet

the deadline for removal under Murphy.

In their opposition to removal and request for remand, 

plaintiffs contend that defendant Martin received a copy of the

complaint and summons by certified mail on June 24, 2004. (Opp’n

to Remand & Req. for Removal at 2). Elsewhere, they contend that

Martin was served on September 24, 2004 when a copy of the

complaint and summons was sent to his attorney. (Pls.’ Joint

Status Report at 2). However, plaintiffs only proof of service

indicates that Martin was served a copy of the complaint and

summons on October 28, 2004. (October 28, 2004 Proof of Service

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6

of Summons and Compl. upon Harold E. Martin). Therefore, the

evidence suggests that Martin was not effectively served until

October 28, 2004. He thus had thirty days from October 28, 2004

to file his notice of removal.

 Martin removed this action to federal court on August 

12, 2004, well before the removal deadline, prior even to his

receipt of formal service. While Martin’s early removal might

appear premature, at least one other district court has addressed

this issue and found preservice removal to be legitimate. In

Delgado v. Shell Oil Co., the Southern District of Texas held

that “a person not yet technically a defendant under state law

can nevertheless remove the action provided that ‘the state’s

judicial machinery is set in motion against the defendant.’” 890

F.Supp 1324, 1333 (S.D. Tex. 1995). The logic behind the Delgado

decision is persuasive. Once plaintiffs filed suit against

Martin in state court, Martin had a right to respond to

plaintiffs’ complaint and to seek removal without waiting to be

effectively served. Martin’s removal was thus timely and in

accordance with 28 U.S.C. 1446(b).

(ii) Subject Matter Jurisdiction is Present

Plaintiffs contend that removal is also inappropriate

because a plaintiff is “master of his complaint” and, here, 

plaintiffs have presented only state claims in their complaint. 

While the Ninth Circuit recognizes, “[i]n general, district

courts have federal-question jurisdiction only if a federal

question appears on the face of the complaint,” it also holds

that “the artful pleading doctrine creates an exception to this

general rule.” Brennan v. Southwest Airlines, 134 F.3d 1405,

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5 The central issue in plaintiffs’ complaint is their

allegation that “the title of Montclair was clouded by an

administratively issued void Internal Revenue Service (IRS)

District Director’s Deed (IRS Deed) granting Montclair to Donald

M.Senick.” (Compl. ¶ 13).

7

1409 (9th Cir. 1998). The Ninth Circuit further holds that an

“action may ‘arise under’ a law of the United States if the

plaintiff’s right to relief necessarily turns on construction of

federal law.” Bright v Bechtel Petroleum, Inc., 780 F.2d 766,

796 (9th Cir. 1986). 

Here plaintiffs attempt to quiet title in a state

court, but the action turns on the validity of an IRS sale.

5

Plaintiffs concede as much in their complaint when they assert

that “[s]tate courts have jurisdiction to determine the validity

of federal tax sales,” and challenge the IRS deed as “void.”

(Compl. ¶¶ 6, 13). Plaintiffs further concede that they are

third parties to the IRS sale, alleging that “the IRS auction of

Montclair [was] for Marvin Baysel Edwards’ taxes,” and not

theirs. (Compl. ¶ 13)(emphasis added). “[T]he exclusive remedy

by a third party whose property has been levied upon or sold by

the Internal Revenue Service is an action pursuant to [26 U.S.C.

§] 7426.” Winebrenner v. United States, 924 F.2d 851, 855 (9th

Cir. 1991)(emphasis added). Because plaintiffs’ right to relief

turns on construction and application of 26 U.S.C. § 7426,

plaintiffs’ suit is a matter of federal law. See Bright, 780

F.2d at 796. It is axiomatic that this court has jurisdiction to

hear questions of federal law pursuant to 28 U.S.C. § 1331

(federal question jurisdiction). 

///

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8

B. Defendant’s Motion to Dismiss

Defendant Martin brings a motion to dismiss pursuant to

Federal Rule of Civil Procedure 12(b)(7) for “failure to join a

party under [Federal] Rule [of Civil Procedure] 19.” (Def.’s

Opp’n to Pls.’ Mot. to Remand; and Req. for Dismissal Sua Sponte;

and Req. that the Ct. make Substantive Findings to the Frivolous

and Harassing Nature of Pls.’ Actions (“Def.’s Opp’n to Pls.’

Mot. to Remand”) at 11). To dismiss a case for failure to join a

party under Rule 19, the Ninth Circuit requires that an absent

party first be “necessary” to the action. Shermoen v. United

States, 982 F.2d 1312, 1317 (9th Cir. 1992). If found to be

“necessary,” and the party cannot be joined, then the party must

be “‘indispensable’ so that in ‘equity and good conscience’ the

action should be dismissed.” Id. 

In determining whether a party is “necessary” the Ninth

Circuit requires a court to consider whether “complete relief”

can be accorded among the existing parties, and whether the

absent party has a “legally protected interest” in the subject of

the action. Id. While the court must consider both questions, a

determination that either “complete relief” cannot be accorded or

that the absent party has a “legally protected interest,” is

sufficient to determine that the party is “necessary” to the

action. See Shermoen, 982 F.2d at 1317 (finding that party not

necessary for complete relief was still indispensable party

because it had legally protected interest in subject action); 

Fed. R. Civ. P. 19(a) (requiring joinder of a party “if (1) in

the person’s absence complete relief cannot be accorded among

those already parties, or (2) the person claims an interest

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6 If a levy has been made on property or property has

been sold pursuant to a levy, any person (other than

the person against whom is assessed the tax out of

which such levy arose) who claims an interest in or

lien on such property and that such property was

wrongfully levied upon may bring a civil action against

the United States in a district court of the United

States.

26 U.S.C. § 7462(a)(1)(emphasis added). 

9

relating to the subject of the action.”)(emphasis added). 

As noted above, because plaintiffs are third parties

alleging that their property has been sold by the IRS, their

exclusive remedy is an action pursuant to 26 U.S.C. § 7426. See

Winebrenner, 924 F.2d at 855. Section 7426 requires such an

action to be brought against the United States. 26 U.S.C. §

7462(a)(1).6 Even if the United States no longer has a “legally

protected interest” in the subject action, complete relief cannot

be accorded among the existing parties without the United States,

because it is the only proper defendant. Therefore, the United

States is a necessary party. 

Moreover, at this point in time, plaintiffs’ failure to

join the United States as a party cannot be cured in any

meaningful way. The statute of limitations for filing a cause of

action under § 7426 is governed by 26 U.S.C. § 6532(c). Section

6532(c) states, “no suit or proceeding under [26 U.S.C. §] 7426

shall be begun after the expiration of 9 months from the date of

the levy or agreement giving rise to such action.” 26 U.S.C.

6532(c). The nine-month time period lapsed years ago: the IRS

recorded a lien against the Property in December 1982 and sold

the property in September 1995. Because the statute of

limitations on plaintiffs’ claim under 26 U.S.C. § 7462(a)(1) has

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already run, plaintiffs cannot now join the United States as a

party to this action. 

Although this court has found the United States to be a

“necessary” party that cannot be joined, the court must still

determine that the United States is “indispensable” in order to

dismiss the action in “equity and good conscience.” Shermoen,

982 F.2d at 1317. The Ninth Circuit requires the application of

a four-factor analysis to determine whether a party is

“indispensable.” Id. at 1318-19. The four factors are (1) to

what extent a judgment rendered in the person’s absence might be

prejudicial to the person or those already parties; (2) the

extent to which, by protective provisions in the judgment, by the

shaping of relief, or other measures, the prejudice can be

lessened or avoided; (3) whether a judgment rendered in the

person’s absence will be adequate; and (4) whether the plaintiff

will have an adequate remedy if the action is dismissed for

nonjoinder. Id. 

The court finds that the first and second factors are

intertwined with the third factor in the present situation. 

Title 26 U.S.C. § 7426(a)(1) is the exclusive remedy for wrongful

levy actions and requires plaintiffs to join the United States as

a party to this action. Because the time has passed for joining

the United States as a party, judgment cannot be rendered in this

case. This fact goes to the heart of the third factor. It also

moots the first and second factors because, (1) there can be no

prejudice where there can be no relief, and (2) where there can

be no prejudice, measures for reducing that prejudice are moot. 

As for the fourth factor, it is true that plaintiffs will not

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11

have any remedy if the action is dismissed for nonjoinder. 

However, this outcome is the direct result of plaintiffs’ failure

to timely file an action against the only party they should have

sued – the United States. The court cannot allow this suit to go

forward against private defendants against whom plaintiffs have

no claim merely to provide plaintiffs a remedy. Therefore, the

court finds that the United States is an “indispensable” party

and plaintiffs’ claim should be dismissed.

C. Defendant’s Motion to Compel and for Sanctions

The dismissal of plaintiffs’ claim moots Martin’s

motion to compel. 

The dismissal does not affect Martin’s motion to have

the court sanction plaintiff Stigall by declaring him a vexatious

litigant under federal law. The Ninth Circuit has recognized the

“inherent power of federal courts to regulate the activities of

abusive litigants by imposing carefully tailored restrictions

under the appropriate circumstances.” De Long v. Hennessey, 912

F.2d 1144, 1147 (9th Cir. 1990). However, the Ninth Circuit has

also held that “such prefiling orders should rarely be filed.”

Id.(citing In re Oliver, 682 F.2d 443, 445 (3d Cir. 1982)(holding

pre-filing orders to be an “extreme remedy” that should only be

used in “exigent circumstances”); and Pavilonis v. King, 626 F.2d

1075, 1079 (1st Cir. 1980)(holding that “[t]he use of such

measures against a pro se plaintiff should be approached with

particular caution.”)). 

The Ninth Circuit has set forth a four-step guideline

for ordering prefiling restrictions. First, the plaintiff must

be provided with an opportunity to oppose the order before it was

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12

entered. Id. Second, the district court must create an adequate

record for review which lists all of the cases and motions that

led the court to conclude a vexatious litigant order was needed

and that the litigant’s activities were numerous or abusive. Id.

at 1148. Third, the district court must make substantive

findings as to the frivolous or harassing nature of the

litigant’s actions. Fourth, the orders must be narrowly tailored

to closely fit the specific vice encountered. Id.

Plaintiffs were originally apprised of defendant

Martin’s motion for such a sanction when defendant stated in

their motion that “[plaintiffs’] lawsuit was filed in bad faith

solely for the purposes of harassment” and requested such a

sanction against plaintiffs. (Def.’s Opp’n to Pls.’ Mot. to

Remand at 12). Plaintiffs responded to this accusation in their

reply, stating that “[their] complaint is not frivolous because

it states a meriticious cause of action, is sufficient on its

face, controverts the material points and is not for the mere

purpose of delay or to embarrass the opponent.” (Reply to Def.’s

Opp’n to Pls.’ Mot. to Remand at 4). Whatever the merits of

plaintiffs’ reply, their reply itself demonstrates that

plaintiffs were on notice that Martin had requested such a

sanction. Therefore, the court finds that plaintiffs received

adequate notice. 

Next, the court asks whether plaintiffs’ action is

frivolous and harassing. Plaintiffs filed several lawsuits

regarding the Property sale at issue in this case in this court

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7 In addition to the current lawsuit, plaintiffs have

filed the following cases in this court: Edwards v. United

States, Con Senick and Cronson Lyle, 96-cv-00477-EJG-JFM (E.D.

Cal. 1997)(filed 3/08/96 and dismissed 2/10/97 for lack of

standing because Edwards failed to demonstrate ownership interest

in the “M.B. Edwards Trust); affirmed on appeal 2/9/98); Edwards

and Stigall v. IRS, 98-cv-01002-LKK-DAD (PS)(E.D. Cal. 1999)

(filed 6/02/98 under Freedom of Information Act and dismissed by

stipulation of parties 7/23/99); Edwards and Stigall v. Martin,

Senick, New Century Mortgage Company, and First Am. Title Ins.

Co., 01-cv-02138-LKK-GGH (PS)(E.D. Cal. 2001)(removed from state

court 11/20/01 and remanded to state court 12/21/01 for lack of

federal jurisdiction due to defendants’ failure to articulate

rationale); Edwards and Stigall v. Martin, Senick, New Century

Mortgage Company, and First American Title Insurance Coimpany,

02-cv-00450-DFL-GGH (PS)(E.D. Cal. 2002)(removed from state court

2/27/02 and dismissed 11/04/02 for failure to joint indispensable

party); and Edwards v. United States Dept. of Treasury, et al,

03-cv-00958-MCE-DAD (PS)(E.D. Cal. 2004)( complaint for writ of

mandate filed 5/08/03 and dismissed for insufficient service of

process 2/03/04). 

8 Edwards and Stigall v. Martin, Senick, New Century

Mortgage Company, and First Am. Title Ins. Co., 02-Cv-00450-DFLGGH (PS)(E.D. Cal. 2002).

13

alone.7 This court has also previously found that the United

States was an indispensable party in a similar action.8 Yet

plaintiffs “artfully pled” a state-law claim in an effort to

circumvent federal jurisdiction in this case. Under the

circumstances, plaintiffs had to at least suspect that their

claim was frivolous. The court also finds that Martin has been

harassed: Martin has represented that he had to pay “tens of

thousands of dollars in attorney fees and costs” in defending his

title to the land against Stigall’s meritless lawsuits. (Pls.’

Reply to Objections to Magistrate Judge’s Findings and

Recommendations & Req. for Sanctions at 3). This representation

is credible considering the number of lawsuits Mr. Stigall has

filed regarding the Property.

However, the court finds that the mounting list of

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9 Martin has been a named party in three lawsuits to

date: Edwards and Stigall v. Martin, Senick, New Century Mortgage

Company, and First American Title Insurance Company, 01-cv-02138-

LKK-GGH (PS)(E.D. Cal. 2001); Edwards and Stigall v. Martin,

Senick, New Century Mortgage Company, and First American Title

Insurance Company, 02-cv-00450-DFL-GGH (PS)(E.D. Cal. 2002); and

the current action. 

14

cases centering on the property sale at the heart of this case

has not yet attained the size or repetitive character required to

justify what the Ninth Circuit views as an extreme sanction. De

Long, 912 F.2d at 1147(“The record needs to show . . . that the

litigant’s activities were numerous or abusive)(citing Wood v.

Santa Barbara Chamber of Commerce, Inc.], 705 F.2d 1515, 1523

(9th Cir. 1982)(35 related complaints filed); In re Oliver 682

F.2d 443, 444(over 50 frivolous cases filed); In re Green, 669

F.2d 779, 781 (D.C. Cir. 1981)(per curiam)(over 600 complaints

filed).”)). While plaintiffs have filed multiple meritless suits

in this court, only three of those suits list Martin as a party,

and plaintiffs have only filed one previous suit which was

dismissed for a reason strikingly similar to that for which this

action is dismissed today - failure to join an indispensable

party.9

It would be possible to narrowly tailor an order

prohibiting plaintiffs from bringing any more suits in court

regarding the IRS sale at issue in this case without first

seeking prior approval from a judge of this court. However, just

how effective such an order would be is questionable, and any

effort to enforce it might be more trouble than it is worth. The

court’s order today explains directly and in detail and direct

why plaintiffs’ claim lacks merit. Plaintiffs have thus been put

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on notice that their claim is frivolous. Hopefully, this order

will serve to dissuade plaintiffs from any attempt to recycle

this claim in another form. 

IT IS THEREFORE ORDERED that:

(1) plaintiffs’ motion to remand be, and the same

hereby is, DENIED;

(2) defendant’s motion to dismiss be, and the same

hereby is, GRANTED; and

(3) defendant’s motion to compel and for sanctions be,

and the same hereby is, DENIED. 

DATED: July 22, 2005

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