FILED
NOT FOR PUBLICATION MAY 10 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, Nos. 09-55805, 09-55807
Plaintiff - Appellee, D.C. No. 2:07-cv-07766-GW-
FMO
v.
STANLEY ZURN and KELLUNION, MEMORANDUM *
LLC,
Defendants - Appellants,
and
VALERY ZURN, AKA Valerie Zurn; et
al.,
Defendants.
Appeal from the United States District Court
for the Central District of California
George H. Wu, District Judge, Presiding
Submitted May 6, 2011 **
Pasadena, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Before: SILVERMAN, TALLMAN, and CLIFTON, Circuit Judges.
In these consolidated appeals, Stanley Zurn and Kellunion, LLC
(“Appellants”) appeal from the district court’s judgment reducing Zurn’s unpaid
tax liability to judgment, setting aside the transfer of certain properties from Zurn
to Kellunion, and foreclosing federal tax liens on and ordering the sale of those
properties. We have jurisdiction under 28 U.S.C. § 1291. We review de novo the
district court’s decision regarding a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(1) or 12(b)(6). Arrington v. Wong, 237 F.3d 1066, 1069 (9th Cir.
2001). We review for an abuse of discretion the district court’s denial of a motion
to reconsider a grant of summary judgment. Sch. Dist. No. 1J, Mulnomah Cnty.,
Or. v. ACandS, Inc., 5 F.3d 1255, 1262 (9th Cir. 1993). We affirm.
The district court properly denied Appellants’ motion to dismiss because
there was no pending collection due process (“CDP”) hearing. See 26 U.S.C.
§ 6330(e) (suspension only applies while CDP “hearing, and appeals therein, are
pending”). Moreover, § 6330(e) only applies to administrative tax levy
proceedings, not lien-foreclosure suits such as the one challenged here. See id.; see
also United States v. Nat’l Bank of Commerce, 472 U.S. 713, 720-21 (1985)
(discussing difference between administrative levy and lien-foreclosure suit).
2 09-55805, 09-55807
The district court did not abuse its discretion in denying Appellants’ motion
to reconsider the court’s grant of summary judgment because Appellants failed to
identify any ground for relief. See Casey v. Albertson’s Inc., 362 F.3d 1254, 1260
(9th Cir. 2004) (discussing Federal Rule Civil Procedure 60(b)(3)); Turner v.
Burlington N. Santa Fe R.R. Co., 338 F.3d 1058, 1063 (9th Cir. 2003) (discussing
Federal Rule Civil Procedure 59(e)); see also C.D. Cal. L.R. 7-18. As the district
court explained, whether Appellants had obtained a tax identification number for
the trust was not material to the court’s decision. Furthermore, if Appellants had
exercised diligence, the factual error could have been discovered and raised prior
to the grant of summary judgment.
The district court did not abuse its discretion in denying Appellants’ second
request to continue the date for the summary judgment hearing. See Orr v. Bank of
Am., 285 F.3d 764, 783-84 (9th Cir. 2002). The court had already granted one
extension, and Appellants did not show diligence in preparing a response to the
United States’ motion for summary judgment.
We do not consider whether the district court properly granted summary
judgment to the United States because Appellants have not advanced any
arguments in support of their position on this issue. See Cachil Dehe Band of
Wintun Indians of Colusa Indian Cmty. v. California, 547 F.3d 962, 968 n.3 (9th
3 09-55805, 09-55807
Cir. 2008) (deeming abandoned issue listed among grounds for appeal but not
supported by argument).
The United States’ motion to strike portions of Appellants’ reply brief is
denied.
AFFIRMED.
4 09-55805, 09-55807