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WO

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Donald D Bailey, et al., 

Plaintiffs, 

v. 

United States of America, 

Defendant. 

No. CV-17-00550-TUC-JGZ

ORDER 

 In this action, Plaintiffs request that the Court set aside judgment entered against 

them in a 2005 suit, Donald D. Bailey and Sandra M. Bailey v. United States, Case No. 

CV 05-310 TUC-CKJ, and that the Court award Plaintiffs the tax refund that they sought 

in that 2005 action. (Doc. 6 at 4.) Plaintiffs cite Rule 60(b)(3), Federal Rules of Civil 

Procedure, in support of their request for relief. (Id. at 1.) 

 Currently pending before the Court are: (1) Plaintiffs’ Motion for Leave to 

Amend (Doc. 16); (2) Defendant’s Motion to Dismiss (Doc. 17); (3) Plaintiffs’ Motion 

for Leave to Amend the Fourth Time (Doc. 19); and (4) Plaintiffs’ Motion for Status of 

Case (Doc. 26). For the following reasons, the Court will deny Plaintiffs’ motions to 

amend and grant Defendant’s Motion to Dismiss. 

Discussion 

 In 2005, Plaintiffs filed suit in this Court before the Honorable Cindy K. 

Jorgenson seeking a refund of federal income taxes for the 1992 tax year. (Doc. 17 at 2; 

Donald D. Bailey and Sandra M. Bailey v. United States, Case No. CV 05-310 TUC-CKJ 
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(“the 2005 action”).) After a bench trial, Judge Jorgenson entered final judgment in favor 

of the United States and assessed costs against Plaintiffs in the amount of $2,774.33. 

(Doc. 17-1 at 14–23.1

) Judge Jorgenson denied Plaintiffs’ subsequent motions for a new 

trial and motions filed pursuant to Rule 60(b) of the Federal Rules of Civil Procedure. 

(See Doc. 17 at 2–4.) 

 In the instant matter, Plaintiffs request that this Court set aside the judgment 

entered against them in the 2005 action and find that they are entitled to a tax refund of 

$40,098 for the 1992 tax year. (Doc. 6 at 4.) Plaintiffs again rely on Rule 60(b) in 

support of their request for relief. 

 Defendant moves to dismiss Plaintiffs’ Second Amended Complaint on grounds of 

res judicata and for failure to state a claim. (Doc. 17.) 

 “The doctrine of res judicata provides that a final judgment on the merits bars 

further claims by parties or their privies based on the same cause of action.” TahoeSierra Preservation Council, Inc. v. Tahoe Reg’l Planning Agency, 322 F.3d 1064, 1077 

(9th Cir. 2003) (internal quotation marks and citation omitted). Res judicata also bars 

new claims that could have been brought in the earlier action. Id. Res judicata applies 

whenever there is (1) an identity of claims, (2) a final judgment on the merits, and (3) 

privity between parties. Id. (citation omitted). 

 The doctrine of res judicata precludes Plaintiffs’ instant attempt to relitigate the 

2005 action. Plaintiffs’ claim for a refund is the same claim litigated against the same 

parties in the 2005 action, in which final judgment has been entered. In fact, in the 2005 

action, Plaintiffs sought to set aside the judgment by presenting the court with the same 

arguments and types of evidence as presented in this action. (See e.g., Doc. 17-1 at 45–

49; Donald D. Bailey and Sandra M. Bailey v. United States, Case No. CV 05-310 TUCCKJ at Docs. 158, 160, 163.) Thus, the Court finds that Plaintiffs’ action is barred under 

the doctrine of res judicata. 

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 Reference to page numbers of Doc. 17-1 correlate to the page number assigned by the Court’s electronic filing system (CM/ECF) that appears at the top of each page of that document. 
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 Plaintiffs’ motions to amend do not show that Plaintiffs can overcome application 

of this doctrine. In seeking amendment, Plaintiffs concede that the issues in the 2005 

action “are the same as this case.” (Docs. 16, 19.) As such, the doctrine of res judicata 

would bar the amended claims. Because leave to amend is properly denied when 

amendment would be futile, the Court will deny Plaintiffs’ motions to amend. See DCD 

Programs, Ltd. v. Leighton, 833 F.2d 183, 188 (9th Cir. 1987) (“[F]utile amendments 

should not be permitted.”) (internal quotation marks and citation omitted). 

 Accordingly, IT IS ORDERED: 

 1. Plaintiffs’ Motion for Leave to Amend (Doc. 16) is DENIED. 

 2. Defendant’s Motion to Dismiss (Doc. 17) is GRANTED. 

 3 Plaintiffs’ Motion for Leave to Amend the Fourth Time (Doc. 19) is 

DENIED. 

 4. Plaintiffs’ Motion for Status of Case (Doc. 26) is GRANTED to the extent 

that this Order serves to advise Plaintiffs of the status of this action. The Motion is 

DENIED to the extent that Plaintiffs request any other relief. 

 5. The Clerk of Court shall enter judgment accordingly and close the file in 

this action. 

 Dated this 9th day of November, 2018.