Frederick D'AnnA v. Susan McElroy and United States of America , 132 F.3d 38 ( 1997 )

132 F.3d 38

81 A.F.T.R.2d 98-303

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
Frederick D'ANNA, Plaintiff-Appellant,
v.
Susan McELROY, Defendant,
and
UNITED STATES of America, Defendant-Appellee.

No. 96-36282.

United States Court of Appeals, Ninth Circuit.

Submitted Dec. 15, 1997.**
Dec. 18, 1997.

Appeal from the United States District Court for the District of Oregon Michael R. Hogan, Chief District Judge, Presiding

Before SNEED, LEAVY, and TROTT, Circuit Judges.

1

MEMORANDUM*

2

Taxpayer Frederick D'Anna appeals pro se from the district court's dismissal of his action for failure to state a claim and for lack of jurisdiction. D'Anna filed this action against Internal Revenue Service employee Susan L. McElroy alleging that McElroy "did not have authority to seize plaintiff's cars" and that there were other procedural irregularities in connection with the seizure which was executed to satisfy D'Anna's tax liability. The United States was substituted as a party with respect to the claims based on state or common law.

3

D'Anna contends that the district court erred by: (1) dismissing his case for failure to prosecute; (2) not giving him the opportunity "to conduct a Rule 16 discovery conference"; and (3) by dismissing the case prior to defendant's answer. We reject these contentions. First, the district court's order reflects that the district court dismissed the action, not for failure to prosecute, but for failure to state a claim as to employee McElroy and fox lack jurisdiction as to the claims against the United States as substituted defendant because D'Anna had not demonstrated an applicable waiver of sovereign immunity. Second, given the meritless nature of D'Anna's claims, the district court did not abuse its discretion by denying D'Anna a pretrial conference. See Fed R. Civ. P. 16(a); Hayden v. Chalfant Press, Inc., 281 F.2d 543, 544-45 (9th Cir.1960) (pretrial conferences are at the court's discretion). Third, we note, that contrary to D'Anna's assertions, the district court properly recognized the defendants' motion to dismiss the complaint as an appropriate response to the complaint. See Fed.R.Civ.P. 12(b)(6)

4

Because D'Anna has not raised any issues or arguments pertaining to the district court's dismissal of his action for failure to state a claim and for lack of jurisdiction, we deem those issues abandoned. See Fed. E.App. 28(a)(4)(6); AcostaHuerta v. Estelle, 7 F.3d 139, 144 (9th Cir.1993) (holding issues not argued in opening brief are deemed abandoned).

5

AFFIRMED.

**

The panel unanimously finds this case suitable for decision without oral argument. See Fed. .R.App. P. 34(a); 9th Cir. R. 34-4

*

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3