United States of America v. Gastaldo
Filing
26
Findings & Recommendation: Defendant's motion to dismiss (doc. # 5) should be treated as a motion for summary judgment and be DENIED; the governments motion for summary judgment (doc. # 11) should be GRANTED. Objections to the Findings and Recommendation are due by 12/17/2009. Signed on 12/2/09 by Magistrate Judge Dennis J. Hubel. (see 9-page f&r) (kb)
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 HUBEL, Magistrate Judge: 25 This is an action by the United States to collect from 26 defendant Todd Gastaldo amounts due on three federally insured 27 28 FINDINGS AND RECOMMENDATION Page 1 Kent Robinson Acting United States Attorney District of Oregon Robert D. Nesler Assistant United States Attorney 1000 S.W. Third Avenue, Suite 600 Portland, Oregon 97204 Attorneys for defendant Todd D. Gastaldo, DC 22115 N.W. Imbrie Drive # 338 Hillsboro, Oregon 97124 Pro se v. TODD D. GASTALDO, Defendant. UNITED STATES OF AMERICA, Plaintiff, ) ) ) ) ) ) ) ) ) ) No. CV 09-310-HU IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON
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student loans. The loans were for $2,500, $3,500, and $3,500 respectively, for a total of $9,500. The government seeks the unpaid principal1 plus interest at 7% as of December 8, 2008, and continuing thereafter, as well as administrative costs. The matters before the court are Mr. Gastaldo's motion to dismiss (doc. #5) and the government's motion for summary judgment (doc. #11). I
recommend that the motion to dismiss be denied and that the motion for summary judgment be granted. Standards A motion to dismiss for failure to state a claim should be granted if the plaintiff is unable to delineate "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007)(abrogating Conley v. Gibson, 355 U.S. 41 (1957)); Fed. R. Civ. P. 12(b)(6). For purposes of such a motion, the complaint is construed in a light most favorable to the plaintiff and all properly pleaded factual
allegations are taken as true. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969); Everest & Jennings, Inc. v. American Motorists Ins. Co., 23 F.3d 226, 228 (9th Cir. 1994). All reasonable inferences are to be drawn in favor of the plaintiff. Jacobson v. Hughes Aircraft, 105 F.3d 1288, 1296 (9th Cir. 1997). A party is entitled to summary judgment if the "pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show there is no genuine issue as
As discussed below, part of the debt was offset by the Treasury Offset Program. FINDINGS AND RECOMMENDATION Page 2
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to any material fact." Fed. R. Civ. P. 56(c). The moving party has the burden of establishing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party shows the absence of a genuine issue of material fact, the nonmoving party must go beyond the pleadings and identify facts which show a genuine issue for trial. Id. at 324. Assuming that there has been sufficient time for discovery, summary judgment should be entered against a "party who fails to make a showing sufficient 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 322. Discussion I. Defendant's motion to dismiss
Mr. Gastaldo asserts two grounds for his motion to dismiss the government's complaint: failure to state a claim and an affirmative defense that Mr. Gastaldo paid the debt by overpaying his federal taxes. A. Failure to state a claim
Mr. Gastaldo asserts that the government has failed to state a claim because there was fraud in the inducement of his
chiropractic student loans. He argues that the government allowed anti-chiropractic lobbyists to financially sabotage chiropractors by requiring them to demonstrate vertebral subluxations by x-rays ("radiation fraud,"). Mr. Gastaldo also asserts, presumably as part of his fraud claim, that the government makes payments through Medicare to hospitals to train obstetricians in "mass birth-canal-
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closing/spinal manipulation child abuse" by allowing women to give birth sitting or lying down; in "mass baby asphyxiation" by cutting the umbilical cord immediately after birth; in "mass infant penis ripping and slicing," by infant circumcision falsely justified by an "obvious HIV/AIDS hoax;" and by promoting mandatory
immunizations and medical immunity from liability for vaccineinduced injuries. He urges the lawyers representing the government in this case to investigate these claims and file an action under the False Claims Act, 31 U.S.C. § 3729(a)(1). Mr. Gastaldo's motion to dismiss for failure to state a claim does not address the debt collection claims alleged in the
government's complaint. B. Affirmative defense
Mr. Gastaldo also moves to dismiss on the ground that he has repaid the loans through voluntary overpayment of his taxes. The government counters that Mr. Gastaldo did not raise this defense in his answer, and that it should therefore be disregarded. The government cites Scott v. Kuhlmann, 746 F.2d 1377, 1378 (9th Cir. 1984)(affirmative defenses may not ordinarily be raised by motion to dismiss); McNeil Const. Co. v. Livingston State Bank, 265 F.2d 308, 312 (9th Cir. 1959)(payment is an affirmative defense which should be presented by answer). The Ninth Circuit has, since these cases were decided,
"liberalized the requirement that defendants must raise affirmative defenses in their initial pleadings." Magana v. Commonwealth of the Northern Mariana Islands, 107 F.3d 1436, 1446 (9th Cir. 1997). A
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defendant may raise an affirmative defense for the first time in a motion so long as the delay does not prejudice the plaintiff. Id. I am unpersuaded, therefore, by the government's argument that Mr. Gastaldo's affirmative defense of payment fails because it was not pleaded in his answer. Nevertheless, Mr. Gastaldo cannot prevail on his motion to dismiss. An affirmative defense may be raised in a motion to dismiss only if it raises no disputed issues of fact. Scott v. Kuhlmann, 746 F.2d 1377, 1378 (9th Cir. 1984). Ordinarily, a court may look only at the face of the complaint to decide a motion to dismiss. In the context of a motion to dismiss under Rule 12(b)(6), all material facts as pleaded in the complaint are assumed to be true, and are construed in the light most favorable to the plaintiff. See, e.g., Summit Health, Ltd. v. Pinhas, 500 U.S. 322, 325 (1991); Cervantes v. United States, 330 F.3d 1186, 1187 (9th Cir. 2003). The material facts as pleaded in the complaint, and the reasonable inferences to be drawn from them, contradict Mr. Gastaldo's
affirmative defense of payment. Such disputed issues of fact preclude Mr. Gastaldo from raising his affirmative defense in a motion to dismiss. Nor can the court construe Mr. Gastaldo's motion to dismiss as one for judgment on the pleadings pursuant to Rule 12(c). Rule 12(c) requires that a motion for judgment on the pleadings be made after the pleadings are closed. Because Mr. Gastaldo has not filed an answer, the pleadings are not closed. In the absence of an answer, the only pleading to be considered under Rule 12(c) is the
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complaint. Further, a motion for judgment on the pleadings requires the court to take all the allegations in the pleadings as true, and construe the pleadings in the light most favorable to the nonmoving party. Doyle v. Raley's, Inc., 158 F.3d 1012, 1014 (9th Cir. 1998). When the allegations of the complaint are taken as true, with all reasonable inferences drawn in the government's favor, Mr. Gastaldo is not entitled to judgment in his favor on his affirmative defense. The court can convert Mr. Gastaldo's motion to dismiss into a motion for summary judgment, pursuant to Rule 12(d), which
provides: If, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56. I recommend treating Mr. Gastaldo's motion to dismiss, pages
16 seven and eight, as a motion for summary judgment. The government's 17 motion for summary judgment should be treated as a response to Mr. 18 Gastaldo's motion. 19 In a motion for summary judgment, the moving party has the 20 burden of establishing the absence of a genuine issue of material 21 fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Further, 22 on a motion for summary judgment, the court must view the evidence 23 in the light most favorable to the non-movant and must draw all 24 reasonable inferences in the non-movant's favor. Clicks Billiards 25 Inc. v. Sixshooters Inc., 251 F.3d 1252, 1257 (9th Cir. 2001). Even 26 if Mr. Gastaldo's motion to dismiss is converted to one for summary 27 28 FINDINGS AND RECOMMENDATION Page 6
1 judgment, Mr. Gastaldo has not established the absence of a genuine 2 issue of material fact with respect to whether he has paid the debt, 3 as discussed below, and therefore is not entitled to summary 4 judgment on his affirmative defense. 5 6 II. Government's motion for summary judgment
The government moves for summary judgment. If the government
7 shows the absence of a genuine issue of material fact, Mr. Gastaldo 8 must go beyond the pleadings and identify facts which show a genuine 9 issue for trial in order to survive the motion. 10 at 323-24. Assuming that there has been Celotex, 477 U.S. time for
sufficient
11 discovery, summary judgment should be entered against a "party who 12 fails to make a showing sufficient to establish the existence of an 13 element essential to that party's case, and on which that party will 14 bear the burden of proof at trial." Id. at 322. 15 The government has produced evidence proving its prima facie
16 case of Mr. Gastaldo's indebtedness. Declaration of Lynda Faatalale 17 ¶¶ 14, 15, 16, 17, attachments C, D, E, F, G, H, K, L, M, N, O, S, 18 T, U, V, W, X. Mr. Gastaldo does not dispute that the debts were 19 incurred. The government has produced competent evidence that the 20 debt has not been repaid. Id. at ¶¶ 15, 16, 17, 20, attachments I, 21 Q, Y, CC.2 The government has produced evidence that despite
22 numerous attempts at collection, including 132 letters, Mr. Gastaldo 23 still owes $26,412.59 in principal and interest as of June 1, 2009. 24 Id. at ¶¶ 15, 16, 17, 26, attachments KK and LL. 25 26 27 28 Some, but not all, of Mr. Gastaldo's debt has been discharged through Treasury Offset Payments. Id. at ¶ 24, 25, and attachments HH, II, JJ. FINDINGS AND RECOMMENDATION Page 7
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Mr. Gastaldo has not identified facts which contradict this
2 evidence. Mr. Gastaldo bears the burden of proof on his affirmative 3 defense, and thus must make a showing of payment. 4 Mr. Gastaldo's through conclusory his statements that the of debt was see
5 discharged
voluntary
overpayment
taxes,
6 Defendant's Motion to Dismiss, pages seven and eight, is not 7 sufficient to create a genuine issue of material fact that defeats 8 the government's motion for summary judgment. The statements are not 9 allegations in an answer raising an affirmative defense. They are 10 not in the form of an affidavit. Even if the statements are treated 11 as an affidavit (which I do not recommend), they do not contain 12 facts which would either support Mr. Gastaldo's affirmative defense 13 or disprove the government's prima facie case, such as the date or 14 dates the alleged payments were made, the amounts allegedly paid, 15 or even the amount of the taxes allegedly due, to enable one to see 16 an overpayment had been made and the amount of that overpayment. 17 18 Conclusion I recommend that Mr. Gastaldo's motion to dismiss (doc. # 5)
19 be treated as a motion for summary judgment and be DENIED, and that 20 the government's motion for summary judgment (doc. # 11) be GRANTED. 21 22 These Findings and Scheduling Order Recommendation will be referred to a If
23 district judge.
Objections, if any, are due December 17, 2009.
24 no objections are filed, then the Findings and Recommendation will 25 go under advisement on that date. If objections are filed, then a 26 response is due December 31, 2009. 27 28 FINDINGS AND RECOMMENDATION Page 8 When the response is due or
1 filed, whichever date is earlier, the Findings and Recommendation 2 will go under advisement. 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FINDINGS AND RECOMMENDATION Page 9 /s/ Dennis James Hubel Dennis James Hubel United States Magistrate Judge Dated this 2nd day of December, 2009.
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