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William McPike State Bar #95869 257 East Bellevue Road, # 188

Atwater, CA 95301

(559) 841-3366

Email: mcpike@psnw.com Attorney for Acacia Corporate Management, LLC

Michael Scott Ioane, & Mariposa Holding Inc.

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

United States,

v.

Plaintiff,

Vincent Steven Booth, Louise Q. Booth,

Michael Scott Ioane, Acacia Corporate Management, LLC. and Mariposa Hold-

ings, Inc.,

Defendants.

Case No. 1:09-cv-01689-AWI-GSA

DEFENDANTS Mariposa Holdings, Inc. and

Acacia Corporate Management, LLC., and Mi- chael Scott Ioane REPLY in support of their MOTION TO DISMISS AND GENERAL OBJECTION Date: May 14, 2012 Time: 1:30 P.M. Judge: Hon Anthony Ishii

Defendants object and reply to Plaintiff’s opposition based upon the following:

The Plaintiff has failed to provide any competent evidence that this suit against Aca-

cia Corporate Management, LLC, Mariposa Holding Inc., or Michael Ioane has been author-

ized by the Secretary of the Treasury, 26 U.S.C. Section 7401. The exhibits, which are at-

tached to the declaration of Colin C. Sampson do not declare that they are true and correct

copies nor do they in any way indicate that the authorization, (assuming it is even authentic,

at all), relate to Acacia Corporate Management, LLC, Mariposa Holding Inc., or Michael

Ioane. The foregoing considered defendants object to the declaration of Attorney Colin C.

Sampson, as false, misleading and an attempt to improperly sway this court’s decision.

Next, if plaintiff claims “ownership of the Properties is completely intertwined with

the dispute between Plaintiffs and the United States.” (Opposition, page 4, lines 4 and 5),

then Plaintiff knew and failed to motion the court in case number Civ. No. 07-1129 (hereinaf-

ter ““pending action””) and show excusable neglect (cause) why the court should disturb the

settlement agreement and associated stipulated judgment, by and between Acacia and the

Booths F.R.Civil P. 60. There is nothing in the “pending action” record showing that the

in the “pending action” record showing that the DEFENDANTS REPLY TO GOVERNMENT OPPOSITION TO MOTION TO
in the “pending action” record showing that the DEFENDANTS REPLY TO GOVERNMENT OPPOSITION TO MOTION TO

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Plaintiff filed a counter-claim, or motion or motions for relief from an order or judgment in-

volving the same or identical parties and claims in this action.

The United States simply could have counter-claimed as a plaintiff in the “pending

action” rather than commencing an action that runs afoul of the rules involving Defendant’s

quiet title action and the court’s order recognizing that complaint is authorized by law (Case

1:07-cv-01129-AWI-GSA Document 35 Filed 10/29/07).

There is no exception in this case that the United States would not be subject to the

compulsory counter-claim provision of F.R.Civ P 13 to wit:

(a)

Compulsory Counterclaim.

(1)

In General. A pleading must state as a counterclaim any claim thatat the time of

its servicethe pleader has against an opposing party if the claim:

(A) arises out of the transaction or occurrence that is the subject matter of the opposing party's claim; and

(B) does not require adding another party over whom the court cannot acquire jurisdic-

tion.

Here this action and the earlier “pending action” arises out of the same transaction or

occurrence that is the subject matter of the opposing party’s claim in this case, and the “pend-

ing action” does not require another party.

There is nothing to suggest in the “pending action” that the Plaintiff prosecuted the

case or complied with any rule involving relief from an order or judgment.

Defendants suspect that the United States took an independent action because it must

have believed that it was barred from taking a counter claim in the “pending action” accord-

ing to rule committee notes to F.R.Civ. P 13.

“If the action proceeds to judgment without the interposition of a counterclaim as re-

quired by subdivision (a) of this rule, the counterclaim is barred. See American Mills Co. v.

American Surety Co., 260 U.S. 360 (1922); Marconi Wireless Telegraph Co. v. National

Electric Signaling Co., 206 Fed. 295 (E.D.N.Y., 1913); Hopkins, Federal Equity Rules (8th

ed., 1933), p. 213; Simkins, Federal Practice (1934), p. 663”

Thus the Plaintiff in this case, having failed in the “pending action” to counter claim

or make timely motions, also waived and forfeited the quiet title claim against it.

Third, the government fails to recognize that neither Acacia Corporate Management,

LLC. Mariposa Holding Inc. or Michael Ioane is the taxpayers. Regarding these defendants

Michael Ioane is the taxpayers. Regarding these defendants DEFENDANTS REPLY TO GOVERNMENT OPPOSITION TO MOTION TO
Michael Ioane is the taxpayers. Regarding these defendants DEFENDANTS REPLY TO GOVERNMENT OPPOSITION TO MOTION TO

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and the “pending action” F.R.Civ. P 13 applies to the government and counter claim is com-

pulsory. Caleshu v. United States, 570 F 2d 711 (8 th Cir. 1978; Pfeiffer Co v. United States,

518 F.2d 124, 130 (8 th Cir. 1974); Gustin v. United States, 876 F. 2d 485, 480 n.1 (5 th Cir.

1989); Flora v. United States, 362 U.S. 145, 166 ( 1960), see, also Russell V. United States,

592 F 2d 1069, 1073 ( 9 th Cir, 1997).

Fourth, Plaintiff’s failure to comply with the rules involving amended pleadings in

this case is additional grounds for dismissal; see F.R.Civ P 15 and rule 21.

Fifth, if the plaintiff fails to prosecute or to comply with the rules or a court order, a

defendant may move to dismiss the action or any claim against it,Federal Rules Civil Pro- cedure, 41(b). This rule does not limit the Defendant(s) from moving to dismiss this action or any claim against them due to Plaintiff’s failure to prosecute or to comply with the rules in the “pending action”, (07-1129). Sixth, the government fails to recognize that the settlement agreement and associated stipulated judgment, in the “pending action”, is a private agreement between Acacia Corpo- rate Management, L.L.C., and Dr. and Mrs. Booth, which the government has no standing to interfere with or move to disturb. It is a binding stipulation to quite title between Acacia Cor- porate Management, L.L.C and the Booths, which was entered into in the presence of the court. It was recorded in the Official Records of Kern County Recorder’s Office and service was made upon the government. The government now claims an interest in the real property through the Booths; however, the Booths have no right title or interest in the real property, with the exception that they may have an ownership interest in the mortgage deeds secured against the real property and not disturbed by the stipulated judgment, in “pending action”. GENERAL OBJECTION

Defendants generally object to each and every claim Plaintiff has made in this case

that is irrelevant to actions it was required by rule to take in the “pending action”.

CONCLUSION

It is bewildering why the government continues their attempts to secure the real prop-

erties subject of the “pending action”? Acacia Corporate Management, L.L.C., purchased three pieces of real property from Bakersfield Properties and Trust, in December of 2005, for valuable consideration, namely cash, notes and assumptions of the existing deeds of trust se-

notes and assumptions of the existing deeds of trust se- DEFENDANTS REPLY TO GOVERNMENT OPPOSITION TO
notes and assumptions of the existing deeds of trust se- DEFENDANTS REPLY TO GOVERNMENT OPPOSITION TO

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cured against the real property. Those deeds of trust state on their face that Southern Finan-

cial Services, Treble LLC and its assigns are the beneficiaries. See Judicial Notice # 3, filed

in Support of this Motion to dismiss.

The estimated balance owed on those deeds, as of today, is $800,000. According to

the government Southern Financial Services and Treble LLC are the alter egos of Dr. and

Mrs. Booth, so ultimately those funds would have been owed to Dr. and Mrs. Booth. How

then were Dr. and Mrs. Booth insolvent either at the time of the sale, 2005, or now? The big-

ger question is why the government continues to fight over the real properties verses issuing

levy notices against Southern Financials Services and Treble LLC, (assuming Southern Fi-

nancial Services is actually the alter ego of Dr. and Mrs. Booth?).

In addition to cause set forth in Defendants’ motion, the Court should grant Defend-

ants’ current motion because Plaintiff has failed to show their excusable neglect in the “pend-

ing actionthat involves the same or identical parties and issues, and follow the rules that

mandate the United States in the pending action, not this case.

Furthermore, based on the Declarations and Judicial Notice filed in support of the mo-

tion to dismiss the court is authorized to proceed on summary judgment.

Date: May 8, 2012

Submitted by,

/s/William McPike/s/

William McPike, Attorney for Acacia Corporate Man agement, LLC, Mariposa Holding, Inc and Michael Ioane

Certificate of Service

It is hereby certified that on May 8, 2012, I electronically filed the foregoing:

1)

Reply to Opposition to Motion to dismiss

With the Clerk of the Court using the CM/ECF system which will send notification of such

filing to the following: G Patrick Jennings,Trial Attorney Tax Division,US Dept of Justice

P.O. Box 683,Ben Franklin Station,Washington, D.C. 20044-0683And Randolf Krbechek

9477 N. Fort Washington Road, Suite 104, Fresno, CA 93730

By:/s/ William McPike /s/

William McPike

Fresno, CA 93730 By:/s/ William McPike /s/ William McPike DEFENDANTS REPLY TO GOVERNMENT OPPOSITION TO MOTION
Fresno, CA 93730 By:/s/ William McPike /s/ William McPike DEFENDANTS REPLY TO GOVERNMENT OPPOSITION TO MOTION