                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-6-2008

Wanda Chocallo v. USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-1660




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                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                Nos. 08-1660 and 08-1661
                                      ___________

                                WANDA P. CHOCALLO,
                                                             Appellant

                                             v.

                           UNITED STATES OF AMERICA
                       ____________________________________

                    On Appeal From the United States District Court
                        For the Eastern District of Pennsylvania
                    (D.C. Civ. Nos. 04-cv-03737 and 06-cv-00539)
                    District Judge: Honorable Mary A. McLaughlin
                     ____________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                  November 3, 2008

          Before: FISHER, JORDAN and VAN ANTWERPEN, Circuit Judges

                                (Filed: November 6, 2008 )
                                        _________

                                        OPINION
                                        _________

PER CURIAM

       Wanda P. Chocallo appeals pro se from the District Court’s final judgments in

these consolidated actions. For the following reasons, we will affirm in part, vacate in

part and remand for further proceedings.
                                             I.

       The parties’ disputes arise from Chocallo’s federal income tax liability for the

1998 calendar year. In 2004, Chocallo filed suit against the Internal Revenue Service

seeking (1) an award of damages under 26 U.S.C. § 7433 for allegedly unauthorized

collection practices and (2) a refund under 26 U.S.C. § 7422 for her alleged overpayment

of tax liability. The IRS moved to dismiss her complaint for lack of jurisdiction, arguing,

inter alia, that she had failed to administratively exhaust her claims. The District Court

granted the motion as unopposed pursuant to E.D. Pa. Local R. 7.1 and Chocallo

appealed. We vacated and remanded because the District Court had not considered the

merits of Chocallo’s claims and the issue of jurisdiction could not yet be resolved. See

Chocallo v. IRS, 145 Fed. Appx. 746 (3d Cir. 2005). We noted that Chocallo alleged that

she was due a $42,088.83 refund and that, although the IRS itself is not subject to suit, the

complaint should be construed to assert claims against the United States. See id. at 747

n.1 & 748.

       After we remanded, the IRS answered Chocallo’s complaint. The answer included

as a defense the request that the court substitute the United States as a defendant and also

demanded a monetary judgment in favor of the United States. Two days later, the United

States instituted a separate action (E.D. Pa. Civ. No. 06-cv-00539) seeking the return of a

refund that it erroneously had issued to Chocallo twice. Chocallo then filed a motion in

her suit to strike the IRS’s answer and for summary judgment. Chocallo argued, as she



                                              2
would throughout these proceedings, that we had affirmatively ruled that she was entitled

to a refund and that the IRS’s answer was not a proper responsive pleading because we

ruled that her complaint should be construed to assert claims against the United States. In

response, the IRS argued, inter alia, that the District Court should substitute the United

States as a defendant and consolidate the two actions. The District Court denied

Chocallo’s motion. Chocallo moved to vacate its order, arguing that United States’

complaint was fraudulent and that she was “forbidden by law from participating” in any

proceeding involving the United States’ claim because “[s]he would be committing a

crime by aiding and abetting” the United States.1 The District Court denied her motion in

relevant part and thereafter directed Chocallo to inform it whether she objected to

consolidation. Chocallo did object, and argued that our previous ruling precluded this

procedure and entitled her to judgment as a matter of law. The District Court rejected

that argument and, by order entered September 6, 2006, consolidated the two actions and

substituted the United States as a defendant in Chocallo’s suit.

       On March 9, 2007, the United States filed a motion to dismiss Chocallo’s two

claims for lack of jurisdiction and a motion for summary judgment on its claim against

Chocallo, who in turn moved to dismiss the United States’ complaint on the grounds




       1
         Chocallo filed motions to vacate virtually every order decided against her during
these proceedings, including orders denying motions to vacate previous orders. Because
all of these motions were based on the legal arguments addressed herein, we need not
specifically discuss each motion.

                                              3
discussed above. By order dated July 16, 2007, the District Court dismissed Chocallo’s

collection claim but denied the parties’ motions in all other respects, thus allowing

Chocallo’s refund claim and the United States’ claim to proceed.2

       The District Court thereafter entered an order scheduling trial and requiring the

parties, inter alia, to appear for a pre-trial conference on November 6, 2007. The United

States appeared for the conference but Chocallo, without explanation, did not. By order

dated November 7, 2007, the District Court cancelled the trial date and rescheduled the

pre-trial conference for November 29, 2007. The court also warned Chocallo that, “[i]f

she does not appear, the Court will consider imposing sanctions against her, including

dismissal of her suit against the United States[.]”

       Chocallo once again failed to appear on November 29. Instead, on that same day,

she filed a motion to vacate the District Court’s November 7 order. Chocallo claimed that

she had “just learned” of the order and asserted that she is elderly and does not drive

(although she did not assert that those circumstances had prevented her from attending the

conference). She also continued to insist that she was entitled to judgment on the basis of

our previous opinion and to characterize the proceedings as a crime in which she refused




       2
        The order was entered on July 17 in E.D. Pa. Civ. No. 04-cv-03737 and on July 18
in E.D. Pa. Civ. No. 06-cv-00539, and other orders discussed herein were entered on
different dates in the two actions. Because no ambiguity results, we will refer to all
orders by the date on which the District Court issued them. Chocallo appealed from the
July 16 order, and we ultimately dismissed that appeal for lack of jurisdiction. Chocallo
v. United States, C.A. No. 07-3710 (Jan. 11, 2008).

                                              4
to participate. By order entered December 4, 2007, the District Court, giving Chocallo

“every benefit of the doubt,” rescheduled the pre-trial conference one more time for

January 2, 2008. The order also provides that, if Chocallo failed to appear at that

conference “without some good cause, the Court will dismiss her claim[.]”

       Chocallo failed to appear for the January 2 conference as well, and the District

Court issued an order the next day dismissing her refund claim as a sanction.3 Although

the District Court wrote that entry of default against her on the United States’ claim

would be an appropriate sanction as well, it did not take that action. Instead, it sua sponte

entered judgment in favor of the United States on the merits, and later amended the

judgment to include an award of pre-judgment interest. Chocallo filed a motion to vacate

the judgments, which the District Court denied, then filed the instant appeals.4

       3
         Chocallo had sent the District Court letters dated December 22 and 24, 2007, once
again stating that she refused to attend the conference because further proceedings were
“illegal.” The District Court appears not to have received these letters before issuing its
January 3 order, so we do not consider them in evaluating that order.
       4
        We have jurisdiction pursuant to 28 U.S.C. § 1291. Chocallo challenges the
District Court’s order entering judgment against her, as well as its orders denying
reconsideration and amending the judgement in favor of the United States. She also
challenges “all” orders entered after January 19, 2006, in her suit. Those orders include
the order denying her motion to strike the IRS’s answer, the order consolidating these
actions, the order dismissing her collection claim, and the orders disposing of her motions
to vacate other orders. We exercise plenary review over the District Court’s legal
conclusions and entry of summary judgment. See Wisniewski v. Rodale, Inc., 510 F.3d
294, 296 (3d Cir. 2007). We review for abuse of discretion its imposition of sanctions,
see Ware v. Rodale Press, Inc., 322 F.3d 218, 222 (3d Cir. 2003), its consolidation of
actions, see Young v. City of Augusta, Ga., 59 F.3d 1160, 1168 (11th Cir. 1995), and its
rulings on motions for reconsideration, see Caver v. City of Trenton, 420 F.3d 243, 258
(3d Cir. 2005).

                                              5
                                             II.

       Chocallo does not challenge the specific grounds on which the District Court

disposed of the parties’ claims but instead raises challenges to proceedings in the District

Court in general. Thus, we might ordinarily deem any challenges to the District Court’s

disposition of those claims waived. The United States, however, does not argue that

Chocallo has waived any challenge and has defended the District Court’s rulings on their

merits. Accordingly, we will first address Chocallo’s general arguments and then turn to

the manner in which the District Court disposed of the parties’ claims.

                                 A. Chocallo’s Arguments

       Chocallo raises what we construe as three challenges to proceedings in the District

Court. First, Chocallo argues that the District Court was obligated to enter judgment in

her favor immediately upon remand because we decided that she was in fact entitled to

the refund she claims. We, of course, decided no such thing, and made the statement on

which she relies merely by way of setting forth her allegations. See Chocallo, 145 Fed.

Appx. at 748.

       Second, Chocallo argues that she was entitled to judgment on all claims because

the United States never filed a responsive pleading in her suit and improperly asserted its

claim by separate suit instead of counterclaim. By order entered September 6, 2006,

however, the District Court substituted the United States as a defendant in Chocallo’s suit

(which was proper under Fed. R. Civ. P. 15(c)(1)(C)) and consolidated the two actions for



                                             6
all purposes (which was proper under Fed. R. Civ. P. 42(a)). Chocallo raised no

legitimate objection to this procedure and has suffered no conceivable prejudice. See

Wells v. Rockefeller, 728 F.2d 209, 214 (3d Cir. 1984) (“when action assertable as

[compulsory] counterclaim is brought in same court as other claim, both actions can be

consolidated”) (citation omitted).5

       Finally, Chocallo argues that the District Judge displayed bias by “routinely”

granting “every” motion by the United States while “automatically” denying “every” one

of hers. The record does not support that assertion and otherwise reveals no potential bias

or partiality.

                 B. The District Court’s Disposition of the Parties’ Claims

       We agree that the District Court properly dismissed Chocallo’s claims, but

conclude that it erred in entering judgment on the United States’ claim against her.

       First, the District Court dismissed Chocallo’s wrongful collection claim by order

issued July 16, 2007, for failure to exhaust administrative remedies. Claims under § 7433

carry a mandatory exhaustion requirement, see 26 U.S.C. § 7433(d)(1); Venen v. United

States, 38 F.3d 100, 103 (3d Cir. 1994), and the procedures for exhausting such claims are

set forth in 26 C.F.R. § 301.7433-1(e). Among other things, a claimant must set forth the


       5
        The United States argues that collection actions against taxpayers need not be
brought as compulsory counterclaims under Fed. R. Civ. P. 13(a). Compare Caleshu v.
United States, 570 F.2d 711, 714 (8th Cir. 1978) (so holding), with United States v.
Aronson, 617 F.2d 119, 122 (5th Cir. 1980) (noting authority to the contrary). We need
not reach that argument given our disposition of this issue.

                                             7
grounds of the claim, a description of her injuries, and the dollar amount of the claim.

See id. § 301.7433-1(e)(2)(i)-(iii); Venen, 38 F.3d at 1003. We agree that Chocallo failed

to exhaust this claim. The only efforts potentially qualifying are two letters that she sent

to an IRS revenue officer. Those letter, in addition to failing to comply with the

regulations in other respects, sought merely the payment of a tax refund and the

cancellation of tax levies and did not demand the payment of damages or otherwise set

forth a § 7433 claim. Accordingly, the District Court properly dismissed this claim.6

       Second, the District Court dismissed Chocallo’s refund claim as a sanction for her

repeated refusal to attend the pre-trial conference. Although that sanction was harsh, the

District Court acted well within its discretion in imposing it under the circumstances

presented here. District courts generally must expressly balance the six factors set forth

in Poulis v. State Farm Fire and Casualty Co., 747 F.2d 863, 868 (3d Cir. 1984), before

sua sponte dismissing a claim as a sanction. We have not required such balancing,

however, where a litigant has been expressly warned of dismissal and nevertheless




       6
       We have characterized the § 7433 exhaustion requirement as “jurisdictional.”
Venen, 38 F.3d at 103. The District Court, without mentioning Venen, concluded that the
exhaustion requirement is not jurisdictional but must instead be treated as a substantive
element of the cause of action under Arbaugh v. Y & H Corp., 546 U.S. 500 (2006).
Accordingly, the court treated the United States’ motion as one for summary judgment
(on which the court may not resolve genuine issues of material fact) rather than one to
dismiss for lack of subject-matter jurisdiction (on which the court may resolve factual
disputes). See Arbaugh, 546 U.S. at 514. We need not revisit the issue of whether the
exhaustion requirement is jurisdictional in this case because the District Court’s ruling
was clearly correct under either approach.

                                              8
willfully refuses to prosecute or otherwise makes further proceedings impossible. See

Spain v. Gallegos, 26 F.3d 439, 454-55 (3d Cir. 1994); Guyer v. Beard, 907 F.2d 1424,

1429-30 (3d Cir. 1990).7

       Both circumstances are present here. After Chocallo already had failed to appear

for the first pre-trial conference, the District Court warned her that it would consider

dismissal if she failed to appear again and then, after she did, expressly stated that it

“would” dismiss if she failed to appear for a third time. Chocallo’s failure to appear that

third time was clearly due to a willful refusal on her part. Throughout this litigation,

Chocallo took the position that further proceedings were illegal in light of our prior ruling

and asserted that she refused to “aid and abet” a crime. After the District Court ordered

her for a second time to attend the pre-trial conference, she continued to press this

assertion. Thus, Chocallo made it abundantly clear that she had no intention of

participating in future proceedings, and the District Court was well within its discretion in

dismissing her claim as a sanction. See Spain, 26 F.3d at 454 (“A party disappointed with

a court’s ruling may not refuse to proceed and then expect to obtain relief on appeal from

an order of dismissal or default.”). Cf. Briscoe v. Klaus, – F.3d –, No. 04-4162, 2008 WL

3008444, at *9-10 (3d Cir. Aug. 6, 2008) (vacating dismissal of prisoner’s claims as a




       7
       We note that, although the District Court did not cite Poulis or set forth the
generally-required factors as such, its orders collectively can be read to touch on them.

                                               9
sanction under Poulis for failure to attend pre-trial conference before appellant had an

opportunity to explain his failure to appear).8

       Finally, the United States sought return of a refund that it claims it erroneously

issued twice. The District Court initially denied the United States’ motion for summary

judgment on this claim after concluding, correctly, that the United States had presented no

evidence that Chocallo actually received and negotiated both checks. In its order of

January 3, however, the District Court concluded that the United States was entitled to

judgment as a matter of law because it listed as exhibits in its pre-trial memoranda “[t]wo

checks in the amounts of $22,935 endorsed by” Chocallo. (Pretrial Mem. filed at Docket

No. 24 in E.D. Pa. Civ. No. 06-cv-00539, and Docket No. 49 in E.D. Pa. Civ. No. 04-cv-

03737, at 3.) The District Court stated that it would have entered summary judgment for

the United States if it had presented those checks at the summary judgment stage. “For

that reason,” the court concluded, “the Court will enter judgment for the United States”

on its claim.

       The District Court did not specify the procedural basis for this entry of judgment,

but it is best understood as a sua sponte grant of summary judgment. Leaving aside the


       8
       If anything, the District Court understated the extent of Chocallo’s willfulness.
The court wrote that Chocallo had refused to attend because her appeal from its July 16,
2007 order remained pending. Although Chocallo “noted” the pendency of that appeal in
her November 29, 2007 motion to vacate, she made clear that her refusal to attend was
based on her refusal to participate in what she erroneously viewed as an illegal
proceeding. She continues to press that assertion on appeal and does not argue that her
non-appearance at any of the three conferences should be excused for any other reason.

                                             10
question of whether the District Court properly acted sua sponte in entering judgment,

see, e.g., DL Resources, Inc. v. FirstEnergy Solutions Corp., 506 F.3d 209, 223 (3d Cir.

2007) (discussing entry of summary judgment sua sponte), the judgment itself cannot

stand. The checks on which the District Court based this judgment are not themselves in

the record, and nothing in the record suggests that they were ever submitted to the District

Court. Instead, the District Court appears to have entered judgment on the basis of a

representation by counsel in an unverified pre-trial memorandum regarding the exhibits

they intended to offer at trial. Such representations are not a proper basis for summary

judgment. See Fed. R. Civ. P. 56(c) (summary judgment may be entered on basis of

materials “on file”); Wishkin v. Potter, 476 F.3d 180, 184 (3d Cir. 2007) (district courts

must “examine the evidence of record” in applying summary judgment standard).

Accordingly, we will vacate the District Court’s entry of judgment on this claim and

remand for further proceedings.9 In all other respects, the judgments of the District Court

will be affirmed. Chocallo’s motion to strike the United States’ brief is denied.




       9
        Because the District Court did not enter judgment against Chocallo on this claim
as a sanction, we express no opinion on whether, on remand, the District Court would be
within its wide discretion in doing so after expressly considering the Poulis factors. If the
District Court reaches the merits of the United States’ claim before trial, it should give
Chocallo notice and an opportunity to address whatever additional materials the United
States may present before entering judgment as a matter of law. See DL Resources, Inc.,
506 F.3d at 223.

                                             11
