Smilde v. Snow , 73 F. App'x 24 ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS July 30, 2003
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
No. 02-51196
Summary Calendar
PETER V. SMILDE,
Plaintiff-Appellant,
versus
JOHN SNOW, SECRETARY, DEPARTMENT OF TREASURY; ET AL.,
Defendants,
JOHN SNOW, SECRETARY, DEPARTMENT OF TREASURY; CHARLES O.
ROSSOTTI, Commissioner, United States Internal Revenue Service;
CHARLES A. WILSON, Financial Management Service, Department of
the Treasury; ANTHONY J. PRINCIPI, SECRETARY, DEPARTMENT OF
VETERAN’S AFFAIRS; TRANS UNION INC.; UNITED STATES OF AMERICA,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Western District of Texas
USDC No. A-01-CV-889-SS
--------------------
Before JOLLY, JONES, and CLEMENT, Circuit Judges.
PER CURIAM:*
Peter V. Smilde (“Smilde”) appeals the district court’s
dismissal of his civil action. Smilde argues that the district
court abused its discretion by denying his motion for change of
venue, abused its discretion by dismissing his case with
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 02-51196
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prejudice, erred by dismissing some of his claims upon initial
review, and conspired with defense counsel to violate his rights.
Smilde has additionally moved this court for a change of venue
and to vacate all orders entered by the district court after
May 13, 2002.
Smilde has not shown that the district court abused its
discretion by denying his 28 U.S.C. § 1404(a) motion for change
of venue. While the district court did not articulate the
reasons why it denied the motion, this is not grounds for
reversal. See Peteet v. Dow Chemical Co., 868 F.2d 1428, 1436
(5th Cir. 1989). Smilde did not show that transferring the case
would be more convenient for any party or witness except himself.
Considering that Smilde waited almost four months after the onset
of his alleged illness and his move to Montana to file the
motion, the district court did not abuse its discretion by
denying the motion for change of venue. See id.Smilde has additionally failed to show that the district
court abused its discretion by dismissing his case with prejudice
for failing to prosecute, failing to follow the Federal Rules of
Civil Procedure, and failing to obey court orders. The record
shows that Smilde never served the defendants with his initial
disclosures, as required by FED. R. CIV. P. 26(a), despite being
ordered to serve them. Smilde further refused to participate in
the FED. R. CIV. P. 26(f) conference and refused certified mail
sent to him by defense counsel. Smilde never filed his lists of
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potential witnesses, testifying experts, and proposed exhibits
despite being ordered to file them twice. Finally, Smilde failed
to appear at his deposition or respond to discovery requests
despite being explicitly ordered to do so. Smilde’s alleged
illness does not excuse his conduct as the record shows that
Smilde never informed the district court of his alleged inability
to attend proceedings or follow the district court’s orders.
Smilde’s alleged failure to receive the district court’s August
15, 2002, order does not excuse his conduct as there is no
indication in the record that Smilde made any effort to check on
the progress of his case. See Salinas v. Sun Oil Co., 819 F.2d
105, 106 (5th Cir. 1987); cf. Latham v. Wells Fargo Bank, N.A.,
987 F.2d 1199, 1201 (5th Cir. 1993) (“[P]arties have a duty to
inquire periodically into the status of their litigation.”).
Smilde’s history of delay and refusal to follow court orders
sufficiently shows contumacious conduct on his part. See Callip
v. Harris County Child Welfare Dep’t, 757 F.2d 1513, 1519-21 (5th
Cir. 1985). As the district court explicitly warned Smilde that
he was facing dismissal unless he obeyed court orders, a lesser
sanction had been imposed. See id. at 1521. As Smilde was
proceeding pro se, he was personally responsible for the delay
and the contumacious conduct. Given Smilde’s personal
responsibility for delay and contumacious conduct and the
previous imposition of lesser sanctions, the district court’s
dismissal of his case with prejudice was not an abuse of
No. 02-51196
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discretion. See Price v. McGlathery, 792 F.2d 472, 475 (5th Cir.
1986).
Smilde has not shown that the district court erred by
dismissing some of his claims upon initial review. The district
court was specifically authorized to screen Smilde’s complaint by
28 U.S.C. § 1915(e)(2). Smilde’s complaint failed to state a
claim upon which relief may be granted regarding his claims
concerning his 1998 taxes and his request for injunctive relief
against the IRS. Smilde did not state a viable claim under
26 U.S.C. § 6402(f) regarding the $317.73 seized from his 1999
refund to satisfy his 1998 tax liability because the seizure was
made pursuant to 26 U.S.C. § 6402(a) and 26 U.S.C. § 6402(f), by
its terms, only concerns seizures made pursuant to 26 U.S.C.
§§ 6402(c), (d), and (e). Smilde failed to state a viable claim
regarding his 1998 taxes under 26 U.S.C. § 7422 because he did
not allege that he filed an administrative claim for a refund
that was made under penalty of perjury. See 26 U.S.C. § 7422(a);
26 C.F.R. § 301-6402-2; see also United States v. Rochelle, 363
F.2d 225, 231 (5th Cir. 1966). Smilde did not state a viable
claim under 26 U.S.C. § 7433 because he did not allege that he
exhausted his administrative remedies regarding his claims for
damages. See 26 U.S.C. § 7433(d)(1). Smilde did not state a
viable claim for injunctive relief because injunctive relief
against the IRS is generally forbidden and Smilde did not allege
or show that there were clearly no circumstances under which the
No. 02-51196
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Government might prevail. See 26 U.S.C. § 7421(a); Enochs v.
Williams Packing & Navigation Co., 370 U.S. 1, 7 (1962).
Although the district court dismissed these claims on another
ground, this court may nevertheless affirm. See Cardoso v. Reno,
216 F.3d 512, 515 (5th Cir. 2000).
We do not consider Smilde’s argument that the district court
conspired with defense counsel because it is raised for the first
time in his reply brief. See Knighten v. Commissioner, 702 F.2d
59, 60 & n.1 (5th Cir. 1983).
Smilde’s motion in this court for a change of venue pursuant
to 28 U.S.C. § 1406(a) and to vacate all orders entered after May
13, 2002, is without merit. By filing suit in the Western
District of Texas, Smilde voluntarily submitted himself to the
jurisdiction of that court and consented to that venue. See Adam
v. Saenger, 303 U.S. 59, 67-68 (1938); Olberding v. Illinois
Cent. R. Co., 346 U.S. 338, 340 (1953). Personal jurisdiction
and venue are determined at the outset of litigation and are not
affected by subsequent events. Michigan Trust Co. v. Ferry, 228
U.S. 346, 353 (1913); Exxon Corp. v. FTC, 588 F.2d 895, 899 (3d
Cir. 1978). Accordingly, transferring Smilde’s case under 28
U.S.C. § 1406(a) would be improper. See Liaw Su Teng v. Shaarup
Shipping Corp., 743 F.2d 1140, 1147 (5th Cir. 1984).
AFFIRMED; MOTION FOR CHANGE OF VENUE AND TO VACATE ORDERS
ENTERED AFTER MAY 13, 2002 DENIED.