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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

JAMES L. LABER AND 

LAURA M. LABER,

Plaintiffs,

v.

DEPARTMENT OF THE TREASURY,

INTERNAL REVENUE SERVICE,

 Defendant.

CIV. S-04-2078 DFL PAN PS

ORDER

—NFN—

On June 22, 2005, this court heard defendant’s motion to 

dismiss this action pursuant to Fed. R. Civ. P. 12(b)(1) for lack

of subject matter jurisdiction. Plaintiffs James and Laura Laber

appeared at the hearing pro se. 

Plaintiffs assert this court has jurisdiction under the

Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b)(1), 2671

et seq. However, neither the case file nor plaintiffs’ papers

demonstrate plaintiffs filed an administrative claim pursuant to

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28 U.S.C. § 2675 and, in any event, the FTCA waiver of sovereign

immunity expressly does not extend to claims arising from tax

collection activities (see 28 U.S.C. § 2680(c)).

Rather, as the court stated at the hearing, defendant’s

motion to dismiss is denied on the ground that 26 U.S.C. §

6330(d) confers jurisdiction upon this court to hear plaintiffs’

discrete challenge to the IRS’s September 2, 2004, Notice of

Determination Concerning Collection Actions, which is set forth

as an exhibit to plaintiffs’ complaint. Plaintiff filed their

complaint on October 1, 2004, within the 30-day limitation period

required by section 6330(d) and further enforcement action by the

IRS pending final determination of plaintiffs’ claim was thereby

suspended pursuant to section 6330(e). 

Plaintiffs concede they failed to serve upon defendant a

copy of the summons with the complaint, as required by Fed. R.

Civ. P. 4(i). Plaintiffs are directed to effect service upon

defendant of both the summons and complaint, and to file proof of

such service with the court, no later than July 29, 2005.

Defendant shall file with the court and serve upon

plaintiffs no later than August 31, 2005, a motion for summary

judgment; plaintiffs shall file their opposition within 45 days

after service of defendant’s motion; defendant may file a reply,

if any, within 30 days after service of plaintiffs’ opposition.

The parties shall address the de jure and de facto status 

of plaintiffs’ partnership with the Cottells and exposure of

plaintiffs’ personal assets to satisfy the "partnership" taxes of

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Tele-link Communications during the calendar years 2000 through

2003. While the IRS’ September 2, 2004, Notice of Determination

Concerning Collection Actions, upon which this court premises

jurisdiction, is limited to “Tax Period(s) Ended: 12/2002,

03/2002, 06/2003, and 09/2003,” the court will consider

additional evidence submitted by either party demonstrating this

court’s jurisdiction to consider additional tax periods and

assessments.

So ordered.

Dated: July 6, 2005. 

 /s/ Peter A. Nowinski 

 PETER A. NOWINSKI

 Magistrate Judge

Case 2:04-cv-02078-DFL-PAN Document 12 Filed 07/07/05 Page 3 of 3