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Lenz v. Robert W Baird & Co. Inc.

United States District Court, E.D. Wisconsin

February 16, 2017

MICHAEL LENZ, Plaintiff,
v.
ROBERT W. BAIRD & CO. INC., Defendant.

         ORDER DENYING MOTION FOR LEAVE TO FILE UNAUTHORIZED MOTION (DOC. 3), GRANTING MOTION TO DISMISS (DOC. 6), DENYING MOTION FOR LEAVE TO FILE AND RECEIVE NOTICES ELECTRONICALLY (DOC. 11), DENYING MOTIONS FOR JUDICIAL NOTICE (DOCS. 12, 13, 14), AND DENYING MOTION FOR SANCTIONS (DOC. 16)

          C.N. CLEVERT, JR. U.S. DISTRICT JUDGE.

         Michael Lenz sues Robert W. Baird & Co. for damages relating to payment of funds from his Individual Retirement Account to the United States Treasury and Baird's issuance of a form 1099R regarding those funds. Lenz asserts that Baird violated the Fourth and Fifth Amendments, 26 U.S.C. § 72(t)(2)(A)(vii), and 26 U.S.C. § 7434. He also filed several motions which remain pending. Meanwhile, Baird asks that this case be dismissed. All of the motions are addressed below.

         MOTION FOR LEAVE TO FILE A MOTION FOR EVIDENCE OF AUTHORITY

         Lenz's first motion is for leave, under Civil L.R. 7(i), [1] to file a “Verified Motion for Admissible Evidence of Authority.” The motion he wishes to file (located at Doc. 3-1) seeks an order directing the clerk of court to “obtain and enter into the record authenticated copies” of this judge's oath of office, commission under seal, and designation and assignment order. The theory underlying the motion is that the undersigned judge lacks authority to decide this case because of his senior status. Lenz points to, among other statutes, 28 U.S.C. § 132(b), which states that each district court consists of judges in regular active service.

         This judge's commission was Dated: July 29, 1996, and he began regular active service on July 31, 1996, after taking the oath of office, through October 31, 2012, when he took senior status.

         Title 28 U.S.C. § 371(b) (emphasis added) provides that any federal judge “may retain the office but retire from regular active service” after meeting certain age and service requirements. Title 28 U.S.C. § 294(b) provides that any federal judge who has retired from regular active service is known as a “senior judge” and “may continue to perform such judicial duties as he is willing and able to undertake, when designated and assigned.” No retired judge shall perform judicial duties except when designated and assigned. § 294(e). “Senior judges are fully commissioned Article III judges, and the Supreme Court has expressly held that upon assuming senior status, a senior judge ‘does not surrender his commission, but continues to act under it.'” Williams v. Decker, 767 F.3d 734, 743 (8th Cir. 2014). This is so, notwithstanding that a successor (Hon. Pamela Pepper) to this judge has been appointed to the district court bench. See § 371(d); see also United States v. Teresi, 484 F.2d 894, 898 (7th Cir. 1983) (“We deem it irrelevant for this purpose that Judge Perry is a senior judge, who had retired from regular active service under 28 U.S.C. § 371(b). For the period in question Judge Perry was designated and assigned by the chief judge of the circuit to perform the duties of district judge in the northern district of Illinois. ‘[J]urisdiction is lodged in a court, not in a person. The judge, exercising the jurisdiction, acts for the court.' . . . In any particular matter, Judge Perry could exercise the jurisdiction of the court to the same extent as any judge in regular active service.” (citation omitted)).

         This judge met the required age and service requirements and chose to take senior status as of November 1, 2012. Otherwise, the undersigned judge has executed all of his judicial duties, with the appropriate approvals. Each year, Chief Judge Diane Wood has designated and assigned this judge to continue performing judicial duties. Interestingly, after this case was filed, Lenz wrote to Eastern District of Wisconsin Chief Judge Griesbach questioning the authority of the undersigned judge and was advised by him that this judge is authorized to handle this case.

         As this senior judge maintains authority to act in assigned cases, the clerk of court will not be required to obtain and docket authenticated copies of the materials that Lenz seeks. Hence, the motion for leave to file a motion seeking such authentication will be denied.

         MOTIONS FOR JUDICIAL NOTICE

         Next, for consideration are three motions asking the court to take judicial notice of “adjudicative facts of law” under Fed.R.Evid. 201. Rule 201 governs judicial notice of “adjudicative fact[s]” and provides that the court may take judicial notice of “a fact that is not subject to reasonable dispute” because it is either generally known within the court's jurisdiction or “can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Fed.R.Evid. 201(a), (b).

         However, the matters that Lenz wishes the court to notice are not facts. The court may take judicial notice of facts such as whether February 14, 2017, is Valentine's Day, or whether the federal courthouse in which this judge sits is in Milwaukee, Wisconsin. Here, Lenz requests the court to judicially notice his interpretations of law. For instance, in one motion Lenz asks the court to take judicial notice that the terms “internal revenue tax” and “taxpayer” have particular meanings.[2] (Doc. 12.) Another motion, seeks judicial notice that “the legislative term of art ‘trade or business' is limited to the class of activity related only to the performance of functions of a federal public office to the exclusion of all other classes of activity” and that Congress was granted exclusive legislative power over the District of Columbia. (Doc. 13 at 1-2.) Lenz argues that the plain text of definitions in Title 26 of the United States Code, rules of statutory construction, and Supreme Court case law have limited the term “trade or business” as he contends. He bases his arguments on several things, including legal maxims. (See, e.g., Doc. 13 at 5, 11-13; Doc. 14 at 3, 6, 7.) And he submits that Congress has no legislative jurisdiction within the boundaries of the several states. (See, e.g., Doc. 14 at 6-7.)

         The meaning of statutory terms is a matter of law, not fact. Lenz's references to the court's need to review legislative history, Supreme Court case law, and the Internal Revenue Code of 1986 for support of his interpretations (see, e.g., Doc. 12 at 5; Doc. 13 at 6, 7-8) highlight that pending requests for judicial notice invite legal interpretations. References to “adjudicative facts of law” (emphasis added) throughout the motions for judicial notice confirm that Lenz's requests extend beyond the “adjudicative facts” governed by Rule 201 to legal interpretations. Thus, these motions will be denied.

         BAIRD'S MOTION TO DISMISS AND LENZ'S MOTION FOR SANCTIONS

         Pursuant to Fed.R.Civ.P. 12(b)(6), Baird moves to dismiss the case. A Rule 12(b)(6) motion challenges the sufficiency of the complaint to state a claim upon which relief may be granted. See Fed. R. Civ. P. 12(b)(6). When considering a Rule 12(b)(6) motion, the court must construe the complaint in the light most favorable to the plaintiff, accepting as true all well-pleaded facts and drawing all possible inferences in the plaintiff's favor. Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008).

         Rule 12(b)(6) requires a plaintiff to clear two hurdles with his or her complaint. EEOC v. Concentra Health Servs., Inc., 496 F.3d 773, 776 (7th Cir. 2007). First, the complaint must describe the claim in sufficient detail to give a defendant fair notice of the claim and the grounds on ...


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