Report and Recommendation

Motion for Injunctive Relief 1 Taitt v. Sec’y; 09-12576

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

DEBORAH TAITT, Case No. 09-12576

Plaintiff, Bernard A. Friedman

v. United States District Judge

SECRETARY, DEPARTMENT OF Michael Hluchaniuk

TREASURY, United States Magistrate Judge

Defendant.

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REPORT AND RECOMMENDATION

PLAINTIFF’S MOTION FOR INJUNCTIVE RELIEF (Dkt. 2)

I. PROCEDURAL HISTORY

The complaint in this matter was filed on July 1, 2009. (Dkt. 1). The

complaint, generally, describes a series of events in which the Internal Revenue

Service (IRS) apparently attempted to collect a tax debt allegedly owed by a

“dissolved” corporation known as Smash Wrecking, Inc. (Dkt. 1, p. 3). The

attempts to collect the debt by the IRS included taking plaintiff’s personal tax

refund in 2005 and filing levies against property owned by Make Way

Construction, LLC., an entity with which plaintiff claims to be “affiliated.” The

IRS pursued the matter against Make Way Construction, LLC based on the theory

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that Make Way was the alter ego, nominee or transferee of Smash Wrecking. 

Plaintiff alleged various errors on the part of the IRS with respect to assessing and

collecting the tax debt of Smash Wrecking. (Dkt. 1, pp. 3-5). Plaintiff seeks

injunctive relief and money damages from defendant. (Dkt. 1, p. 9). 

Plaintiff also filed a motion for preliminary injunctive relief on July 1, 2009. 

(Dkt. 2). In her motion, plaintiff asks that the defendant “cease and desist all

collection activities against Make Way Construction, LLC” and that defendant be

ordered to “return all property plus interest to, and withdraw all liens and levies

from the property of Make Way Construction, LLC, the designated alter

ego/nominee or transferee of Smash Wrecking, Inc.” (Dkt. 2, p. 5). The various

entities associated with service of process on the federal government appear to

have been served, but no written response is yet due from defendants. (Dkt. 4-6,

8).

Due to plaintiff’s request for temporary injunctive relief a hearing was

scheduled prior to the time the defendant would normally be required to respond

to the complaint. (Dkt. 7). That hearing was held on August 5, 2009, via

telephone conference call. Plaintiff argued that she was entitled to relief due to

errors made by the IRS in their attempts to collect the taxes alleged owned by

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Smash Wrecking, Inc. Counsel representing the government argued that plaintiff

should not be able to represent any entities other than herself and that the relief

she was requesting was barred by the anti-injunction act.

II. ANALYSIS AND CONCLUSIONS

Plaintiff seeks preliminary injunctive relief. The factors the court should

consider in granting such relief include: (1) whether the movant has a strong

likelihood of success on the merits; (2) whether the movant would suffer

irreparable injury absent a stay; (3) whether granting the stay would cause

substantial harm to others; and (4) whether the public interest would be served by

granting the stay. Ohio Republican Party v. Brunner, 543 F.3d 357, 361 (6th Cir.

2008).

In addressing the likelihood of success on the merits, the first issue relates

to exactly what claims plaintiff is able to proceed on. Plaintiff has brought the

action in her own name but seeks relief on behalf of a limited liability company

named Make Way Construction, LLC. Plaintiff claims to be an “affiliate” of Make

Way Construction. However, the Supreme Court has recognized that federal law

requires that “corporations, partnerships, or associations” or any “artificial entity”

appear in federal courts only through counsel. Rowland v. California Men’s

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Colony, 506 U.S. 194, 202 (1993). Limited liability companies have been

determined to be a type of artificial entity such that the interests of that entity be

represented in federal court only through counsel. Lattanzio v. COMTA, 481 F.3d

137, 140 (2d Cir. 2007). In that plaintiff cannot advocate the interests of Make

Way Construction, LLC in this Court, and it is only the interests of that entity that

are addressed in the motion for injunctive relief, she has failed to demonstrate a

strong likelihood of success on the merits as to any claims relating to Make Way

Construction, LLC.

Furthermore, plaintiff seeks to prohibit the IRS from pursuing collection

efforts for unpaid taxes. This relief is prohibited under the Anti-Injunction Act, 26

U.S.C. § 7421. The proper remedy for this requested relief is a suit for refund. 

Jenkins v. Rucker, 2005 WL 646715 (6th Cir. 2005). Even if plaintiff could

properly pursue the interests of Make Way Construction, LLC, in this Court, her

request would be barred by the Anti-Injunction Act. This factor would also

demonstrate a clear inability to succeed on the merits of this case. In light of the

complete failure on plaintiff’s part to demonstrate a strong likelihood of success

on the merits it is not necessary to consider the other factors associated with the

propriety of issuing injunctive relief. 

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Motion for Injunctive Relief

5 Taitt v. Sec’y; 09-12576

III. RECOMMENDATION

Based on the foregoing, it is RECOMMENDED that plaintiff’s motion for

injunctive relief be DENIED.

The parties to this action may object to and seek review of this Report and

Recommendation, but are required to file any objections within 10 days of service,

as provided for in 28 U.S.C. § 636(b)(1) and Local Rule 72.1(d)(2). Failure to file

specific objections constitutes a waiver of any further right of appeal. Thomas v.

Arn, 474 U.S. 140 (1985); Howard v. Sec’y of Health and Human Servs., 932 F.2d

505 (6th Cir. 1981). Filing objections that raise some issues but fail to raise others

with specificity will not preserve all the objections a party might have to this

Report and Recommendation. Willis v. Sec’y of Health and Human Servs., 931

F.2d 390, 401 (6th Cir. 1991); Smith v. Detroit Fed’n of Teachers Local 231, 829

F.2d 1370, 1373 (6th Cir. 1987). Pursuant to Local Rule 72.1(d)(2), any

objections must be served on this Magistrate Judge.

Any objections must be labeled as “Objection No. 1,” “Objection No. 2,”

etc. Any objection must recite precisely the provision of this Report and

Recommendation to which it pertains. Not later than 10 days after service of an

objection, the opposing party must file a concise response proportionate to the

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Motion for Injunctive Relief 6 Taitt v. Sec’y; 09-12576

objections in length and complexity. The response must specifically address each

issue raised in the objections, in the same order, and labeled as “Response to

Objection No. 1,” “Response to Objection No. 2,” etc. If the Court determines that

any objections are without merit, it may rule without awaiting the response.

s/Michael Hluchaniuk 

Date: August 17, 2009 Michael Hluchaniuk

United States Magistrate Judge

CERTIFICATE OF SERVICE

I certify that on August 17, 2009, I electronically filed the foregoing paper

with the Clerk of the Court using the ECF system, which will send electronic

notification to the following: Christina L. Medzius, and I certify that I have mailed

by United States Postal Service the paper to the following non-ECF participant:

Deborah Taitt, 18420 Wildemere, Detroit, MI 48221.

s/James P. Peltier 

Courtroom Deputy Clerk

U.S. District Court

600 Church Street

Flint, MI 48502

(810) 341-7850

pete_peltier@mied.uscourts.gov

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