                                                                           FILED
                            NOT FOR PUBLICATION                             JUN 20 2013

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



BRIAN KENNER; KATHLEEN                           No. 11-56062
KENNER,
                                                 D.C. No. 3:10-cv-02105-AJB-
              Plaintiffs - Appellants,           WVG

  v.
                                                 MEMORANDUM *
E. KELLY, an individual, IRS employee;
et al.,

              Defendants - Appellees.



BRIAN KENNER; KATHLEEN                           No. 11-56252
KENNER,
                                                 D.C. No. 3:10-cv-02105-AJB-
              Plaintiffs - Appellees,            WVG

  v.

E. KELLY, an individual, IRS employee;
et al.,

              Defendants,

  And

BARBARA DUNN, an individual;

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
LACEY DUNN & DO, PC ,

               Defendants - Appellants.



                   Appeal from the United States District Court
                      for the Southern District of California
                   Anthony J. Battaglia, District Judge, Presiding

                             Submitted June 18, 2013 **

Before:        TALLMAN, M. SMITH, and HURWITZ, Circuit Judges.

      Brian and Kathleen Kenner appeal pro se from the district court’s judgment

dismissing their action alleging that defendants violated the Racketeer Influenced

and Corrupt Organizations Act (“RICO”) in connection with the collection of their

federal income tax liabilities. Barbara Dunn and Lacey Dunn & Do, PC (“Dunn

defendants”) cross appeal from the order denying their motion for sanctions under

Fed. R. Civ. P. 11. We have jurisdiction under 28 U.S.C. § 1291. We review de

novo a dismissal for failure to state a claim. Odom v. Microsoft Corp., 486 F.3d

541, 545 (9th Cir. 2007) (en banc). We review for an abuse of discretion the

district court’s Rule 11 determination. Retail Flooring Dealers of Am., Inc. v.

Beaulieu of Am., LLC, 339 F.3d 1146, 1150 (9th Cir. 2003). We affirm.



          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

                                          2                                    11-56062
      In No. 11-56062, the district court properly dismissed the Kenners’ RICO

claims against the Internal Revenue Service (“IRS”) defendants for failure to state

a claim because the Kenners’ allegations against the IRS defendants constitute

violations of the Internal Revenue Code (“IRC”) in connection with tax collection

activities, and the sole remedy for such claims is under 26 U.S.C. § 7433. See 26

U.S.C. § 7433 (providing that a civil action against the United States under § 7433

“shall be the exclusive remedy for recovering damages” resulting from IRS

employees’ negligent, reckless, or intentional disregard of any IRC provision or

treasury regulation in connection with any collection of federal tax). Accordingly,

the district court properly dismissed the conspiracy claim against the Dunn

defendants as well. See Howard v. Am. Online Inc., 208 F.3d 741, 751 (9th Cir.

2000) (RICO conspiracy claim fails to state a claim where underlying substantive

RICO claim fails).

      The district court did not abuse its discretion in dismissing the complaint

without leave to amend because amendment would have been futile. See Albrecht

v. Lund, 845 F.2d 193, 195 (9th Cir. 1998) (reviewing for an abuse of discretion

and stating that leave to amend may be denied where amendment would be futile);

see also World Wide Rush, LLC v. City of Los Angeles, 606 F.3d 676, 690 (9th Cir.

2010) (discretion to deny leave to amend is “particularly broad” where plaintiff has


                                          3                                    11-56062
previously filed an amended complaint).

      In No. 11-56252, the district court did not abuse its discretion in denying the

Dunn defendants’ motion for sanctions under Rule 11 after determining that the

allegations in the operative complaint are not sufficiently frivolous. See Christian

v. Mattel, Inc., 286 F.3d 1118, 1127 (9th Cir. 2002) (listing factors that district

courts must consider in determining whether to impose Rule 11 sanctions); see

also Warren v. Guelker, 29 F.3d 1386, 1390 (9th Cir. 1994) (per curiam)

(“Although Rule 11 applies to pro se plaintiffs, the court must take into account a

plaintiff’s pro se status when it determines whether the filing was reasonable.”).

      AFFIRMED.




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