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Lopez v. Director

United States District Court, D. Connecticut

January 23, 2017

ELBA M. LOPEZ, Plaintiff,
v.
“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 STRIKE

          Victor A. Bolden United States District Judge

         Plaintiff, Elba M. Lopez[1], 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.

         Pending 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 No. 44.

         For the 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.

         The 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.

         I. FACTUAL ALLEGATIONS

         Plaintiff, 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.[2] Id.

         A. IRS Investigation

         On or 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.

         On or 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.”[3] 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.

         B. Bank Defendants

         On or 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.

         On or 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.

         II. STANDARD OF REVIEW

         A 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).

         A 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).

         Where, 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.”)).

         The 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.”[4]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).

         Additionally, 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 plaintiff).

         III. DISCUSSION

         Ms. 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.

         The IRS 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.

         “Absent 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).

         The 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 sponte, ...


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