United States District Court, D. Massachusetts
KATHLEEN M. NORGAARD, Plaintiff,
UNITED STATES OF AMERICA, Defendant.
MEMORANDUM AND ORDER
Dennis Saylor IV United States District Judge.
reasons stated below, the Court (1) grants plaintiff leave to
proceed in forma pauperis; (2) denies her motion for
preliminary injunction; and (3) directs the clerk to issue
summons for service of the complaint on the United States.
October 24, 2016, Kathleen M. Norgaard filed a pro
se complaint against the United States challenging,
among other things, the denial of her refund claim by the
Internal Revenue Service. Norgaard seeks leave to proceed
in forma pauperis. Along with her complaint,
plaintiff filed a motion pursuant to Rule 65 of the Federal
Rules of Civil Procedure seeking to have this court enjoin
Wells Fargo from foreclosing on her residence at 11 Tucker
Street, Marblehead, Massachusetts.
upon review of plaintiff s motion for leave to proceed in
forma pauperis, the Court concludes that plaintiff has
demonstrated a lack of funds to prepay the filing fee. The
Court therefore will grant the motion.
Screening of the Complaint
as here, a plaintiff is allowed to proceed without prepayment
of the filing fee, summons do not issue until the Court
reviews the complaint and determines that it satisfies the
substantive requirements of 28 U.S.C. § 1915. This
statute authorizes federal courts to dismiss a complaint
sua sponte if the claims are frivolous or malicious,
fail to state a claim on which relief can be granted, or seek
monetary relief against a defendant who is immune from such
relief. See 28 U.S.C. § 1915(e)(2)(B). In
conducting that review, the Court must construe the complaint
liberally because the plaintiff is proceeding pro
se. See Haines v. Kerner, 404 U.S. 519, 520-21
(1972); Rodi v. New Eng. Sch. of Law, 389 F.3d 5, 13
(1st Cir. 2004).
plaintiff seeks judicial review of the denial of her claim
for a refund of taxes she has already paid. The Internal
Revenue Code, 26 U.S.C. § 7422, provides for civil
actions to recover a tax refund, and 28 U.S.C. §
1346(a)(1) vests district courts and the Court of Federal
Claims with jurisdiction to hear such a case. Accordingly,
the Court will direct the clerk to issue summons for service
of the complaint on the United States.
Motion for Preliminary Injunction
motion for preliminary injunction seeks an order from this
Court pursuant to Rule 65(b) of the Federal Rules of Civil
Procedure that would stay the foreclosure of her home by
Wells Fargo. The motion for preliminary injunction is
accompanied by a supporting memorandum stating that plaintiff
obtained a reverse mortgage from Wells Fargo in order to pay
off a small business loan. The memorandum further states that
Orlans-Moran, on behalf of Wells Fargo, seeks to foreclose on
her property based on a claimed arrearage that is several
hundred thousand dollars more than permitted under the
contract. Plaintiff contends that she subsequently discovered
that the homestead protections under Mass. Gen. Laws ch. 199
and the hardship exemptions from property taxes under Mass.
Gen. Laws ch. 59 were not available to her under the terms of
the reverse mortgage. Plaintiff further contends that she is
entitled to equitable relief pursuant to Mass. Gen. Laws ch.
93A. The certificate of service indicates that courtesy
copies of the motion and memorandum were forwarded to Wells
Fargo, Orlans Moran, Senator Elizabeth Warren, and
Congressman Seth Moulton.
Court need not reach the merits of the motion, because Wells
Fargo is not a party to this action. Except in limited
circumstances not relevant here, a court may not order
injunctive relief as to non-parties to an action. Wells Fargo
is not a defendant, and accordingly this Court may not issue
an injunction against it.