The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge
Plaintiff Hamlet C. Bennett filed a pro se Complaint against the United States (the "Government"), alleging that beginning with tax year 1995,the Internal Revenue Service ("IRS") "recklessly, intentionally, or by reason of negligence disregarded" various provisions of Title 26 of the U.S. Code in connection with the collection of federal tax. Compl. ¶¶ 1 & 7. This Complaint is among the scores of nearly identical pro se complaints filed in the U.S. District Court for the District of Columbia over the past year seeking a refund, damages, and injunctive relief against further collection of federal taxes. See, e.g., Gaines v. United States, 424 F. Supp. 2d 219, 221 (D.D.C. 2006) (collecting cases); Def.'s Mem. in Supp. of Mot. to Dismiss at 2 n.1 (Government estimates more than 60 such complaints have been filed in this District).
Mr. Bennett requested a Clerk's entry of default, and the Clerk entered default against the Government on February 28, 2006. Mr. Bennett now moves for entry of default judgment, and the Government moves to vacate the entry of default and to dismiss the Complaint. The Court will deny the motion for default judgment and will grant the motion to vacate entry of default and the motion to dismiss because: (1) the Government has shown good cause to vacate the entry of default; (2) Mr. Bennett failed to exhaust his administrative remedies, a prerequisite to a suit for damages for wrongful collection of taxes or for a tax refund; and (3) Mr. Bennett's injunction claim is barred by the Anti-Injunction Act, 26 U.S.C. § 7421(a).
The Government moves to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1), (2), (3), (5), and (6). The Court will grant its motion under Rules 12(b)(1) and (6). Under Rule 12(b)(1), which governs motions to dismiss for lack of subject matter jurisdiction, a plaintiff bears the burden of establishing by a preponderance of the evidence that the Court possesses jurisdiction. See Shekoyan v. Sibley Int'l Corp., 217 F. Supp. 2d 59, 63 (D.D.C. 2002); Pitney Bowes Inc. v. U.S. Postal Serv., 27 F. Supp. 2d 15, 19 (D.D.C. 1998). It is well established that, in deciding a motion to dismiss for lack of subject matter jurisdiction, a court is not limited to the allegations set forth in the complaint "but may also consider material outside of the pleadings in its effort to determine whether the court has jurisdiction in the case." Alliance for Democracy v. Fed. Election Comm'n, 362 F. Supp. 2d 138, 142 (D.D.C. 2005); see Lockamy v. Truesdale, 182 F. Supp. 2d 26, 30-31 (D.D.C. 2001).
A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) challenges the adequacy of a complaint on its face, testing whether a plaintiff has properly stated a claim. "[A] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). In deciding a 12(b)(6) motion, the Court "may only consider the facts alleged in the complaint, documents attached as exhibits or incorporated by reference in the complaint, and matters about which the Court may take judicial notice." Gustave-Schmidt v. Chao, 226 F. Supp. 2d 191, 196 (D.D.C. 2002) (citation omitted).
A. Clerk's Entry of Default
Default judgments are disfavored by modern courts. Jackson v. Beech, 636 F.2d 831, 835 (D.C. Cir. 1980). Accordingly, under Federal Rule of Civil Procedure 55(c), so long as judgment has not yet been entered, a default may be set aside for "good cause shown." Id. (quoting Fed. R. Civ. P. 55(c)). The decision to set aside an entry of default rests in the discretion of the district court. Keegel v. Key West & Caribbean Trading Co., Inc., 627 F.2d 372, 373 (D.C. Cir. 1980). In exercising such discretion, a court must consider whether
(1) the default was willful,
(2) a set-aside would prejudice plaintiff, and
(3) the alleged defense was meritorious.
Id. Federal courts favor trials on the merits. Id. at 374.
The Government neglected to respond to the complaint for approximately three months, but excuses this delay by explaining that service of process was faulty. While Mr. Bennett personally served the Attorney General and U.S. Attorney, he failed to serve the IRS. Proper service of process (or waiver of service) is a prerequisite to the Court's exercise of personal jurisdiction over a defendant. Murphy Bros. Inc. v. Michetti Pipe Stringing Inc., 526 U.S. 344, 350 ...