FILED
NOT FOR PUBLICATION
JAN 12 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ELIZABETH GARDNER; et al., No. 12-17632
Plaintiffs-Appellants, D.C. No. 3:12-cv-08051-FJM
v.
MEMORANDUM*
INTERNAL REVENUE SERVICE; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Arizona
Frederick J. Martone, District Judge, Presiding
Submitted October 17, 2016**
San Francisco, California
Before: HAWKINS, CALLAHAN, and HURWITZ, Circuit Judges.
Elizabeth and Frederic Gardner (the Gardners) challenge the authority of the
Internal Revenue Service (IRS) to require that they pay certain taxes. They seek to
recover funds paid to the IRS by the escrow administrator upon sale of real
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
property to satisfy the IRS’s tax lien. The district court dismissed the complaint as
barred by claim preclusion (res judicata). We affirm.
Under the doctrine of claim preclusion, a final judgment bars successive
litigation “of the very same claim, whether or not relitigation of the claim raises the
same issues as the earlier suit.” Taylor v. Sturgell, 553 U.S. 880, 892 (2008).
Claim preclusion requires an identity of claims, a final judgment on the merits, and
identity or privity between parties. Cell Therapeutics, Inc. v. Lash Grp. Inc., 586
F.3d 1204, 1212 (9th Cir. 2009).
Gardner v. Peters, 2006 WL 2092606 (D. Ariz. July 26, 2006), aff’d 280 F.
App’x 602 (9th Cir. 2008), is a final judgment between the same parties. Although
much of the district court’s order concerned its jurisdiction to review the Decision
Letter issued by the IRS, the court also determined that “Beth-el Aram Ministries
cannot state a claim for wrongful levy.” Id. This decided all claims of wrongful
levy because Beth-el Aram Ministries is the alter ego of the Gardners.
Accordingly, claim preclusion bars the Gardners from asserting a claim of
wrongful levy against the IRS in their 2012 complaint.
We have reviewed the Gardners’ 236-paragraph complaint and agree with
the district court that it does not clearly seek any relief that is not based on alleged
wrongful levies. Accordingly, all claims are barred by res judicata.
2
The district court’s dismissal of the Gardners’ complaint is AFFIRMED.
3