United States v. Stanley Zurn

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NOT FOR PUBLICATION MAY 10 2011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