Opinion
No. 8; 02-CV-667-T24TBM
September 30, 2002
ORDER
This cause comes before the Court for consideration of Defendant United States of America's Motion to Dismiss (Doc. No. 7) and Plaintiff Richard G. Coleman's Motion to Deny, Motion to Censure, and Motion for Venue Change (Doc. No. 8).
Plaintiff, proceeding pro se, filed a complaint against Defendant alleging breach of contract, gender discrimination, and deceptive and misleading business practices. In response, Defendant filed this pending motion to dismiss all of Plaintiff's claims and to dismiss the individually named defendant, District Director, as a party in this action.
I. Standard of Review
In deciding a motion to dismiss, the Court accepts as true all of the complaint's factual allegations. Berkovitz v. United States. 486 U.S. 531, 540 (1988);Lotierzo v. A Woman's World Med. Ctr.. Inc.. 278 F.3d 1180, 1182 (11th Cir. 2000). The Court is also required to view the complaint in the light most favorable to the plaintiff. See Murphy v. Federal Deposit Ins. Corp. 208 F.3d 959, 962 (11th Cir. 2000) (citing Kirby v. Siegelman, 195 F.3d 1285, 1289 (11th Cir. 1999)). As such, the motion should be denied "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." Bank v. Pitt, 928 F.2d 1111-12 (11th Cir. 1991) (citing Conley v. Gibson 355 U.S. 41, 45-46 (1957)). The threshold to defeat the motion to dismiss is "exceedingly low." Ancata v. Prison Health Services Inc., 769 F.2d 700, 703 (11th Cir. 1985).
Under federal law, a claimant is not required to set forth the detailed facts upon which their claim is based. Conley. 355 U.S. at 47. Instead, "a short and plain statement of the claim" is sufficient. Fed.R.Civ.P. 8(a)(2). A Rule 12(b) motion to dismiss on the pleadings presumes that general allegations are enough to support a claim. Lujan v. National Wildlife Fed'n, 497 U.S. 871, 889 (1990). The standard on a 12(b)(6) motion is not whether the plaintiff will ultimately prevail in his or her theories, but whether the allegations are sufficient to allow the plaintiff to conduct discovery in an attempt to prove the allegations.See Jackam v. Hospital Corp., of Am. Mideast. Ltd. 800 F.2d 1577, 1579 (11th Cir. 1986).
II. Defendant's Motion to Dismiss
Defendant moves this Court to dismiss all three of Plaintiff's claims against Defendant. Specifically, Defendant contends that Plaintiff's breach of contract, gender discrimination, and deceptive and misleading business practices claims should be dismissed. Further, Defendant seeks to have the individually named defendant, District Director, Internal Revenue Service, dismissed as a party to this action.
In support of its request that this Court dismiss two of Plaintiff's claims, Defendant argues that Plaintiff failed to allege any of the jurisdictional prerequisites to sustain either Plaintiff's first claim for breach of contract, or his third claim for deceptive and misleading business practices. Specifically, Defendant points out that it is well settled under the doctrine of sovereign immunity that the United States is immune from suit unless it consents to be sued. United States v. Dalm, 494 U.S. 596, 608 (1990). While the United States has generally waived its right to sovereign immunity to allow taxpayers to file refund actions, a suit for refund of federal taxes can only be maintained, "if an administrative claim for refund has been duly filed." Mutual Assurance. Inc. v. United States, 56 F.3d 1353, 1355-56 (11th Cir. 1995). Further, courts consistently hold that filing such a claim is a "jurisdictional prerequisite" to maintaining a tax refund suit, which cannot be waived. Id. at 1356. Consequently, because Plaintiff failed to allege the necessary jurisdictional requirements, and both of the time limitations, which would allow Plaintiff to establish this necessary jurisdictional requirement have lapsed, this Court must grant Defendant's motion. Accordingly, Defendant's Motion to Dismiss Plaintiff's breach of contract and deceptive and misleading business practices claims is GRANTED.
"Section 6511(a) of the Internal Revenue Code (26 U.S.C.) requires a taxpayer to file an administrative claim for refund with the IRS "within 3 years from the time the return was filed or 2 years from the time the tax was paid, [whichever expires later], or if no return was filed by the taxpayer, Within 2 years from the time the tax was paid."Mutual, 56 F.3d 1356 (citing in part I.R.C. § 6511(a)).
In response to Plaintiff's claim alleging gender discrimination based upon the United States failure to collect Plaintiff's 1992 joint federal income tax return liability from Plaintiff's ex-wife, Defendant cites § 6013(d)(3) of Title 26 of the United States Code, which provides in pertinent part "if a joint return is made, the tax shall be computed on the aggregate income and the liability with respect to the tax shall be joint and several." Surber v. United States, 285 F. Supp. 775, 778 (S.D. Ohio 1968). Consequently, any deficiency, interest, and/or penalty may be collected from both or either joint signer of the return. Id. In addition, the Surber court explained that no distinction is made regarding the liability of joint signers even when one of the signer's signature was obtained through fraudulent statements and/or assurances from the other signer. Id. (citing Furnish v. Commissioner of Internal Revenue, 262 F.2d 727, 732 (9th Cir. 1958)). Consequently, this Court agrees with Defendant that Plaintiff "failed to state a claim upon which relief can be granted" under Fed.R.Civ.P. 12(b)(6). Accordingly, Defendant's Motion to Dismiss Plaintiff's gender discrimination claim is GRANTED.
In response to Plaintiff's inclusion of the individually named defendant District Director, Internal Revenue Service, Defendant argues that a federal officer acting within the scope of his or her employment cannot be named as a defendant in an action. Specifically. Defendant cited Alexander v. Agents for International Monetary Fund No. 96-CV-1106, 1996 WL 745466, at *2 (N.D.N.Y. Dec. 31, 1996), which explained that while a plaintiff may name an individual federal employee as a defendant, in order to maintain such an action, the plaintiff must allege, with some factual support, that the federal officer had a direct and personal responsibility for the conduct complained of by the plaintiff. Consequently, because Plaintiff failed to allege any factual support for the District Director's direct and personal involvement in his complaint, Defendant's Motion to Dismiss District Director, Internal Revenue Service is GRANTED.
III. Plaintiff's Motion to Deny, Motion to Censure, and Motion for Venue Change
In response to Defendant's Motion to Dismiss, Plaintiff filed a Motion to Deny, Motion to Censure, and Motion for Venue Change. This Court carefully reviewed Plaintiff's motion and finds the arguments contained therein to be without merit and unworthy of discussion. Accordingly, Plaintiff's Motion to Deny, Motion to Censure, and Motion for Venue Change is DENIED.
Accordingly, it is ORDERED AND ADJUDGED that Defendant United States of America's Motion to Dismiss (Doc. No. 7) is GRANTED and Plaintiff Richard G. Coleman's Motion to Deny, Motion to Censure, and Motion for Venue Change (Doc. No. 8) is DENIED. The Clerk is directed to CLOSE this case.