United States District Court, D. Connecticut
ELBA M. LOPEZ, Plaintiff,
“DIRECTOR” OF THE INTERNAL REVENUE SERVICE'S IRS OGDEN UTAH OFFICE; DAVID SMITH, IRS FIELD OFFICE SUPERVISOR NORWALK CONNECTICUT; SARAH DAVIDSON, IRS REVENUE OFFICER AT NORWALK CONNECTICUT FIELD OFFICE; BANK OF AMERICA; ANA GARCIA, RELATIONS MANAGER BANK OF AMERICA; DEBBIE GILETTE, CITIBANK FRAUD DEPARTMENT; CITIBANK, INC.; KRISTEN HENRION, TD BANK INVESTIGATOR; KRISTEN BERTICUCELLI, TD BANK INVESTIGATOR; BHARETT MIZRANI, PRESIDENT/CEO OF TD BANK; and “JOHN AND JANE DOES” 1-100, et al. Defendants.
ORDER ON MOTIONS TO DISMISS, MOTIONS FOR PRELIMINARY
INJUNCTION AND FOR ORDERS TO SHOW CAUSE, AND MOTIONS TO
A. Bolden United States District Judge
Elba M. Lopez, brings this action against Defendants,
(1) the Director of the Internal Revenue Service's
(“IRS”) Ogden Utah Office; (2) David Smith, IRS
Field Officer Supervisor in Norwalk Connecticut; (3) Sarah
Davidson, IRS Revenue Officer at the Norwalk Connecticut
Field Office (collectively, the “IRS
Defendants”); (4) Bank of America; (5) Ana Garcia,
Relations Manager Bank of America (collectively, the
“Bank of America Defendants”); (6) Debbie
Gilette, Citibank Fraud Department; (7) Citibank, Inc.
(collectively, the “Citibank Defendants”); (8)
Kristen Henrion, TD Bank Investigator; (9) Kristen
Berticucelli, TD Bank Investigator, (10) Bharett Mizrani,
President/CEO of TD Bank (collectively, the “TD Bank
Defendants”); and (11) John and Jane Does 1-100. Second
Amend. Compl., ECF No. 9.
before this Court are several motions. Ms. Lopez has filed
two motions for a preliminary injunction and an order to show
cause, each requesting the same relief, to enjoin the IRS
Defendants from restricting her access to bank accounts at
Bank of America and TD Bank and to enjoin the IRS Defendants
from further collection activity. ECF No. 8; ECF No. 10. The
IRS Defendants have filed a motion to dismiss for lack of
jurisdiction and failure to state a claim. ECF No. 18. The
Bank of America Defendants have filed a motion to strike Ms.
Lopez's jury demand under the terms of the contract
between Bank of America and Ms. Lopez. ECF No. 27. Ms. Lopez
filed a motion to strike the IRS Defendants' motion to
dismiss and an opposition to the Bank of America
Defendants' motion to strike. ECF No. 32. The Citibank
Defendants have filed a motion to dismiss for failure to
state a claim. ECF No. 37. The TD Bank Defendants have also
filed a motion to dismiss for failure to state a claim. ECF
reasons that follow, the IRS Defendants' motion to
dismiss, ECF NO. 18, is GRANTED; the Citibank Defendants'
motion to dismiss, ECF No. 37, is GRANTED; and the TD Bank
Defendants' motion to dismiss, ECF No. 44, is GRANTED.
Ms. Lopez's motion to strike the IRS Defendants'
motion to dismiss, ECF No. 32, is DENIED. The Court dismisses
Ms. Lopez's Second Amended Complaint sua sponte
as to all remaining Defendants because it brings frivolous
claims. All claims are dismissed with prejudice. Ms.
Lopez's motions for a preliminary injunction and an order
to show cause, ECF No. 8; ECF No. 10, are, therefore, DENIED
as moot and the Bank of America Defendants' motion to
strike Ms. Lopez's jury demand is also DENIED as moot.
Court notes that Ms. Lopez, who commenced this action pro
se, but is now represented by counsel, previously filed
a motion to amend the complaint. ECF No. 50. On October 31,
2016, the Court denied this motion without prejudice because
Ms. Lopez failed to attach a copy of the proposed amended
complaint, modifying the order on November 10, 2016 to give
Ms. Lopez until December 2, 2016 to file a renewed motion
with a copy of the proposed amended complaint. ECF No. 57.
Ms. Lopez failed to do so, and the Court issued an additional
order on December 6, 2016, ordering that Ms. Lopez file the
renewed motion with a copy of the proposed amended complaint
by January 6, 2017, or the Court would decide the pending
motions to dismiss based on the filings properly before it.
ECF No. 59. Ms. Lopez again failed to file a renewed motion
to amend the complaint, and the Court now considers the
pending motions to dismiss.
Ms. Lopez, alleges that she is a health care worker, aged 81,
who resides in Connecticut. Second Amend. Compl. ¶ 17.
Ms. Lopez alleges that, on or about August 5, 2015, she filed
a 2014 tax return to the IRS reporting her income for the
2014 tax year, that was, allegedly to the best of her
knowledge and understanding in good faith, compliant with the
provisions of the United States tax laws. Id. ¶
33. On or around September 18, 2015, the IRS Refund Issuers
Field Office in Kansas City, Missouri allegedly conducted an
extensive review of Ms. Lopez's tax return. Id.
¶ 34. On or around October of 2015, Ms. Lopez allegedly
received her tax refund after the review of her tax return
was completed. Id.
around April 11, 2016, Ms. Lopez alleges that the Director of
the IRS Field Office in Ogden, Utah (the
“Director”) sent her an unsigned letter, a Notice
of Tax Due on Federal Tax Return (“Notice”),
containing an assessment requesting that she repay the full
amount of the tax refund she had received in October 2015, in
addition to a 20% tax penalty. Second Amend. Compl. ¶
35. Specifically, the Notice stated that Ms. Lopez owed $356,
613.00 in tax as well as an additional $71, 322.60,
representing the 20% tax penalty. Notice, Second Amend.
Compl. Ex. A, ECF No. 9.
around April 12, 2016, Ms. Lopez alleges that Ms. Davidson
came to Ms. Lopez's home in Connecticut, allegedly to
“interrogate” Ms. Lopez as part of a
“Criminal Fraud Investigation, ” which Ms. Lopez
claims she was not previously aware of. Second Amend. Compl.
¶ 36. Ms. Lopez alleges that she was not at home when
Ms. Davidson allegedly came to her home on April 12, 2016,
and that Ms. Davidson therefore knocked on her neighbor,
Jawan Bey's, door and informed him about this
“Criminal Fraud Investigation.” Id.
¶ 37. Ms. Davidson also allegedly spoke to Ms.
Lopez's other neighbors about her investigation, as well
as to Ms. Lopez's mailman. Id. ¶ 40. Ms.
Davidson allegedly left another copy of the tax assessment
Notice with Mr. Bey, for him to give to Ms. Lopez.
Id. ¶ 41-42.
around April 13, 2016, Ms. Lopez alleges that Ms. Garcia from
Bank of America informed Ms. Lopez that her Bank of America
account was frozen and that Ms. Lopez would no longer be able
to access the money in that account. Second Amend. Compl.
¶ 43. On or around April 15, 2016, Ms. Lopez alleges
that Bank of America sent an unsigned letter that detailed
why it was freezing her account and informing Ms. Lopez that
Bank of America would report the freezing of her account to
various reporting agencies, including ChexSystems, Inc. and
Early Warning Services, LLC, and that this reporting would
affect her ability to open accounts at other financial
institutions for up to seven years. Id. ¶ 44.
around May 2, 2016, Ms. Lopez alleges that various IRS
Defendants incited Ms. Gillete of Citibank to send a
notification to TD Bank's fraud investigators, Ms.
Henrion and Ms. Bertucelli, to seize the bank account of
Nation of the Ancient One, International, formerly a
plaintiff in this case. Second Amend. Compl. ¶ 45.
STANDARD OF REVIEW
motion to dismiss for failure to state a claim under Rule
12(b)(6) is designed “merely to assess the legal
feasibility of a complaint, not to assay the weight of
evidence which might be offered in support thereof.”
Official Comm. of Unsecured Creditors of Color Tile, Inc.
v. Coopers & Lybrand, LLP, 322 F.3d 147, 158 (2d
Cir. 2003) (internal citations omitted). When deciding a Rule
12(b)(6) motion to dismiss, a court must accept the material
facts alleged in the complaint as true, draw all reasonable
inferences in favor of the plaintiff, and decide whether it
is plausible that the plaintiff has a valid claim for relief.
Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009);
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56
(2007); In re NYSE Specialists Sec. Litig., 503 F.3d
89, 95 (2d Cir. 2007).
plaintiff's “[f]actual allegations must be enough
to raise a right to relief above the speculative level,
” and assert a cause of action with enough heft to show
entitlement to relief and “enough facts to state a
claim to relief that is plausible on its face.”
Twombly, 550 U.S. at 555, 570. A claim is facially
plausible if “the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. at 678. Although “detailed
factual allegations” are not required, a complaint must
offer more than “labels and conclusions, ”
“a formulaic recitation of the elements of a cause of
action, ” or “naked assertion[s]” devoid of
“further factual enhancement.” Twombly,
550 U.S. at 555-57. Plausibility at the pleading stage is
nonetheless distinct from probability, and “a
well-pleaded complaint may proceed even if it strikes a savvy
judge that actual proof of [the claims] is improbable, and .
. . recovery is very remote and unlikely.” Id.
at 556 (internal quotation marks omitted).
however, a defendant's motion to dismiss raises a
“factual attack for lack of subject matter
jurisdiction, ” the Court “must determine whether
the factual predicate for subject matter exists.”
Russo v. City of Hartford, 184 F.Supp.2d 169, 178
(D. Conn. 2002). In making this determination “there is
no presumptive truthfulness to the facts alleged in the
complaint, and the court may consider evidentiary matter
presented in an affidavit or otherwise in addition to the
complaint.” Id. (citing Kamen v. Am. Tel.
& Tel. Co., 791 F.2d 1006, 1011 (2d Cir. 1986)
(“However, when, as here, subject matter jurisdiction
is challenged under Rule 12(b)(1), evidentiary matter may be
presented by affidavit or otherwise.”)).
Second Circuit has held that “district courts may
dismiss a frivolous complaint sua sponte, ”
just as “as the Court of Appeals may dismiss frivolous
matters in like circumstances.”Fitzgerald v. First E.
Seventh St. Tenants Corp., 221 F.3d 362, 364 (2d Cir.
2000) (per curiam) (affirming district court's sua
sponte dismissal of case where plaintiff did not move to
proceed in forma pauperis such that 28 U.S.C. §
1915(d) was inapplicable and plaintiff had brought two prior
identical actions that were also dismissed sua
sponte as frivolous). A complaint is frivolous when it
is “based on an indisputably meritless legal
theory” or presents “factual contentions [which]
are clearly baseless.” Neitzke v. Williams,
490 U.S. 319, 327 (1989).
because Ms. Lopez filed her Second Amended Complaint,
motions, and oppositions while pro se, the Court
must construe her filings “liberally” and
interpret them “to raise the strongest arguments that
they suggest.” Triestman v. Fed. Bureau of
Prisons, 470 F.3d 471, 474 (2d Cir. 2006); see also
Ruotolo v. I.R.S., 28 F.3d 6, 8 (2d Cir. 1994)
(explaining that pro se litigants should be afforded
“special solicitude” because they are not
represented by counsel). Despite the special solicitude that
the Court must show Ms. Lopez out of consideration for her
pro se status, her complaint must still
“include sufficient factual allegations to meet the
standard of facial plausibility” to survive a motion to
dismiss under Rule 12(b)(6). Sentementes v. Gen. Elec.
Co., No. 3:14-CV-00131 (VLB), 2014 WL 2881441, at *2 (D.
Conn. June 25, 2014) (discussing case with pro se
Lopez's Second Amended Complaint, the operative complaint
in this case, brings the following claims: (a) Count One
brings a claim against all Defendants for alleged
“deprivation of rights under color of law” and
“federally protected activities” under 42 U.S.C.
§ 1983 (“Section 1983”) and 18 U.S.C. §
245(b)(4)(B)(5) (“Section 245”); (b) Count Two
brings a claim against all Defendants for alleged
“refusal or neglect to prevent plaintiffs deprivation
of rights” under 42 U.S.C. § 1986 (“Section
1986”); (c) Count Three brings claims for alleged
“slander, defamation of character, and invasion of
privacy” against all Defendants; (d) Count Four brings
claims for alleged “abuse of process &
malice” against all Defendants; (e) Count Five brings
claims for alleged “intentional infliction of emotional
distress and mental anguish.” Second Amend. Compl.
¶¶ 47-77. Ms. Lopez also brings what the Court
construes as Count Six, a “declaratory relief
claim” under 28 U.S.C. § 2201, 28 U.S.C. §
2202, and Fed.R.Civ.P. 57 and what the Court construes as
Count Seven, an “injunctive relief claim” under
Fed.R.Civ.P. 65 to prevent the IRS Defendants from taking
steps allegedly leading to Ms. Lopez's bank accounts
being frozen, in addition to seeking monetary damages.
Id. ¶¶ 78-90.
Defendants move primarily for dismissal for lack of subject
matter jurisdiction under Rule 12(b)(1). See IRS Br.
at 4-9; Fed.R.Civ.P. 12(b)(1). The IRS Defendants argue that
the Court has no subject matter jurisdiction over Ms.
Lopez's claims because the United States has not waived
sovereign immunity as to any of Ms. Lopez's claims.
See IRS Br. at 4-5.
a waiver, sovereign immunity shields the Federal Government
and its agencies from suit.” Binder & Binder,
P.C. v. Colvin, 818 F.3d 66, 70 (2d Cir. 2016) (quoting
F.D.I.C. v. Meyer, 510 U.S. 471, 475 (1994));
see also United States v. Sherwood, 312 U.S. 584,
586 (1941) (“The United States, as sovereign, is immune
from suit save as it consents to be sued.”). Waivers of
sovereign immunity must be “unequivocally
expressed” and are generally “construed strictly
in favor of the sovereign.” United States v. Nordic
Vill. Inc., 503 U.S. 30, 33-34 (1992); see also
Binder & Binder, 818 F.3d at 70 (“Moreover,
waivers of sovereign immunity must be unequivocally expressed
in statutory text, and cannot simply be implied.”
(internal quotation marks omitted)). A plaintiff “bears
the burden of establishing that her claims fall within an
applicable waiver” of sovereign immunity. Makarova
v. United States, 201 F.3d 110, 113 (2d Cir. 2000).
Citibank Defendants, TD Bank Defendants, and Bank of America
Defendants (collectively, the “Bank Defendants”)
do not argue for dismissal for lack of subject matter
jurisdiction. Instead, the Citibank Defendants, ECF No. 37,
and the TD Bank Defendants, ECF No. 44, move to dismiss this
case for failure to state a claim under Rule 12(b)(6). The
Bank of America Defendants have filed a motion to strike Ms.
Lopez's jury trial demand, ECF No. 27, and an answer, ECF
No. 31, but have not filed a motion to dismiss. Nonetheless,
the Court “may dismiss a frivolous complaint sua