Sheri Redeker-Barry v. United States , 333 F. App'x 482 ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JUNE 25, 2009
No. 08-16166 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 07-00372-CV-FTM-99-DNF
SHERI REDEKER-BARRY,
Plaintiff-Appellant,
versus
UNITED STATES OF AMERICA,
Defendant-Appellee,
AMSOUTH BANK,
SUSAN STONIER,
Defendants.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(June 25, 2009)
Before CARNES, HULL and WILSON, Circuit Judges.
PER CURIAM:
Sheri Redeker-Barry, appealing pro se, challenges the district court’s denial
of her motion to quash an Internal Revenue Service (“IRS”) tax summons to
AmSouth for Redeker-Barry’s bank records. After review, we affirm.
This case comes back to us after we vacated the denial of Redeker-Barry’s
motion to quash and remanded “to the district court for discovery and
consideration of whether the IRS summons of Redeker-Barry's records from
AmSouth [bank] should be quashed.” See Redeker-Barry v. United States, 218
Fed. Appx. 868, 869 (11th Cir. 2007) (unpublished) (concluding that “AmSouth's
compliance with the IRS summons did not render this case moot because the
district court could have provided a partial remedy by ordering the IRS to destroy
or return all copies of the documents produced by AmSouth”).1
Redeker-Barry did not file any tax returns for the years 2001-2004. In
September 2004, IRS agent Susan Stonier was assigned to determine Redeker-
Barry’s tax liabilities for those years. But Redeker-Barry refused to provide any
records. In May 2005, Stonier properly issued and served an administrative
summons on AmSouth for Redeker-Barry’s bank records for 2000-2004 to
1
We have addressed Redeker-Barry's tax issues on other occasions as well. See
Redeker-Barry v. United States, 476 F.3d 1189, 1190 (11th Cir. 2007) (affirming dismissal of
denial of a collections due process hearing on subject matter jurisdiction grounds).
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determine whether Redeker-Barry had earned any taxable income for those years.
There was no pending criminal investigation at that time.
Redeker-Barry’s main claim before the magistrate judge, the district court,
and now on appeal, is that the IRS issued the summons for an improper purpose.
That is, she contends that the IRS impermissibly issued the summons to gather
evidence for a criminal investigation. On remand, the magistrate judge authorized
four months of discovery and an evidentiary hearing to determine whether this was
true. The government then moved for summary judgment.
On December 10, 2007, the magistrate judge conducted an evidentiary
hearing. Three witnesses, including Stonier, Michael Townsend, and Redeker-
Barry, all testified. Following the evidentiary hearing, the magistrate judge issued
a report and recommendation (“report”) containing findings of fact and
conclusions of law.
After applying the proper framework for determining whether an IRS
summons to a third party is proper, see La Mura v. United States, 765 F.2d 974,
979 (11th Cir. 1985),2 and after evaluating the witnesses’ testimony, Stonier’s
2
We recently applied this standard in Nero Trading, LLC v. U.S. Dep’t of Treasury,
I.R.S., ___ F.3d ___, 2009 WL 1606956, at *4 (11th Cir. June 10, 2009) (“The Service must
show: (1) that the investigation will be conducted pursuant to a legitimate purpose, (2) that the
inquiry may be relevant to the purpose, (3) that the information sought is not already within the
Commissioner's possession, and (4) that the administrative steps required by the Code have been
followed.” (quotation marks and citation omitted)).
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affidavit, and all evidence supporting Redeker-Barry’s contentions,3 the magistrate
judge found that the government met its prima facie burden of proving that the
summons was proper and that Redeker-Barry had failed to meet her burden of
proof as to the motion to quash. Specifically, the magistrate judge found that the
purpose of Stonier’s investigation was to determine the amount of income tax due
from the years 2000-2004, that Stonier did not conduct the investigation in bad
faith, and that Stonier acted within the scope of her authority to issue the summons.
The report recommended that the government’s motion for summary judgment be
granted and the motion to quash be denied. Redeker-Barry filed objections to the
report.
On June 6, 2008, the district court overruled the objections and adopted the
legal and factual findings in the magistrate judge’s report. In addition, the district
court took judicial notice that after the magistrate judge filed the report, the
government initiated criminal proceedings against Redeker-Barry. Although the
district court noted that the criminal charges appeared to be for separate tax years
from those in this case, it stayed the instant case and directed the parties to submit
3
The report concluded that Redeker-Barry failed to present evidence on any of the key
issues. Redeker-Barry alleged that she had been subject to a criminal investigation since 2002
and that she spoke with Ladd Brown, an IRS attorney, who told her that one of her payments was
referred to the Criminal Investigation Division. But she “did not provide any documentary
evidence” to support that claim. Nor did she meet “her burden of producing any evidence” that
the years 2000-2004 were encompassed in any alleged investigation.
4
memoranda addressing whether the stay should remain in effect until the resolution
of the criminal proceedings. On September 29, 2008, the district court lifted the
stay,4 denied Redeker-Barry’s motion for reconsideration of the June 6, 2008 order,
entered judgment in favor of the government, and denied Redeker-Barry’s motion
to quash summons. Redeker-Barry appealed.
Redeker-Barry’s main argument on appeal is that the IRS impermissibly
issued the summons in bad faith and for the purpose of conducting a criminal
investigation. She contends that the district court erred in denying her motion to
quash and in entering summary judgment for the government. We review a denial
of a petition to quash an IRS summons for clear error, see Nero Trading, LLC v.
U.S. Dep't of Treasury, I.R.S., ___ F.3d ___ , 2009 WL 1606956, at *4 (11th Cir.
June 10, 2009); United States v. Morse, 532 F.3d 1130, 1131 (11th Cir. 2008) (per
curiam), and an entry of summary judgment de novo, Swisher Int’l, Inc. v. Schafer,
550 F.3d 1046, 1050 (11th Cir. 2008). Redeker-Barry also challenges the
magistrate judge’s rulings with respect to, inter alia, whether she properly served
AmSouth, the denial of extra time for discovery, the denial of her motion for leave
to respond to the respondent’s opposition to her request for an extension of time
4
Redeker-Barry initially moved to maintain the stay until her motion for reconsideration
of the June 6, 2008 order was denied. But on August 18, 2008, she filed another motion for
reconsideration alternatively asking for the stay to be lifted so that she could appeal the
underlying ruling.
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for discovery, and the denial of her motions to compel discovery. After review, we
conclude that Redeker-Barry’s claims on appeal lack merit. In particular, Redeker-
Barry has shown no clear error in the fact-findings adopted by the district court.
Nor has Redeker-Barry shown any reversible error in the district court’s
conclusions of law.
As to Redeker-Barry’s challenges to the magistrate judge’s handling of the
case, discovery rulings, and other non-dispositive rulings, we discern no error.
Redeker-Barry did not object to the magistrate judge’s non-dispositive rulings
within ten days. Therefore, she has waived them. See Smith v. School Bd. of
Orange County, 487 F.3d 1361, 1365 (11th Cir. 2007) (citing Fed. R. Civ. P. 72);
see also Farrow v. West, 320 F.3d 1235, 1249 n.21 (11th Cir.2003) (applying same
rule to pro se litigant). Even if she had objected within the authorized time, we still
would find no error in the magistrate judge’s rulings. We review discovery rulings
for abuse of discretion, see Adkins v. Christie, 488 F.3d 1324, 1330 (11th Cir.
2007), and find no such abuse here.
AFFIRMED.
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