Opinion
19-52868 Adv. Pro. 19-2109
03-31-2023
In re: LEONARD NYAMUSEVYA, SR., Debtor. v. Internal Revenue Service, Defendant. Leonard Nyamusevya, Sr., Plaintiff,
OPINION AND ORDER (1) GRANTING THE UNITED STATES' MOTION TO DISMISS FIRST AMENDED COMPLAINT AND (2) DENYING THE DEBTOR'S MOTION TO FILE SECOND AMENDED COMPLAINT
John E. Hoffman United States Bankruptcy Judge.
I. Introduction
Leonard Nyamusevya, Sr., the debtor in this Chapter 7 case, contends that the Internal Revenue Service ("IRS") harmed him by filing proofs of claim in his bankruptcy case and that the damage can be repaired if the United States pays him either half a million dollars or more than one million dollars. A recovery of half a million dollars was premised on the theory in his first amended complaint that the filing of the proofs of claim violated statutes criminalizing the making of false oaths and claims, filing a false claim in a bankruptcy case, or engaging in bankruptcy fraud. This Court lacks subject-matter jurisdiction over those claims for several reasons, and the United States' motion to dismiss the first amended complaint is therefore granted for lack of subject-matter jurisdiction.
After the United States pointed out this jurisdictional defect in its motion to dismiss the adversary proceeding, Nyamusevya pivoted and moved to amend the first amended complaint to seek a recovery of more than one million dollars based on his allegations that the IRS's filing of the proofs of claim were tortious acts and violated the Fair Debt Collection Practices Act ("FDCPA"). But because the Court lacks subject-matter jurisdiction over those claims, and because the second amended complaint fails to state a claim upon which relief can be granted, amendment of the complaint would be futile, and Nyamusevya's motion to file the second amended complaint is therefore denied.
II. Factual and Procedural Background
Although Nyamusevya has filed two bankruptcy cases and the IRS filed proofs of claim in both, Nyamusevya's allegations that the IRS filed unlawful proofs of claim relate only to the proofs of claim filed in the second case, the currently pending case, Case No. 19-52868. Proceeding pro se, Nyamusevya initially filed this case under Chapter 13 of the Bankruptcy Code, but he voluntarily converted it to a Chapter 7 case two months later. See Notice of Voluntary Conversion to Chapter 7 (Doc. 59). The IRS filed a proof of claim (Claim No. 4-1) and an amended proof of claim (Claim No. 4-2), ultimately asserting a secured claim of $12,549.70 for income taxes, penalties and interest owing for tax years 2008, 2009 and 2010, and an unsecured nonpriority claim of $824.83 for income tax for tax year 2013. The IRS filed these proofs of claim while this bankruptcy case was a pending Chapter 13 case and before Nyamusevya converted the case to Chapter 7.
When citing documents in the record, the Court will cite the PDF page number. References to "Adv. Doc.__" are to docket entries in this adversary proceeding, and references to "Doc.__" are to docket entries in Nyamusevya's bankruptcy case.
A month after he converted his case to Chapter 7, Nyamusevya filed the complaint commencing this adversary proceeding ("Original Complaint") (Adv. Doc. 1). The Original Complaint contained one count alleging that the filing of Claim No. 4-1 was a "willful and fraudulent violation of 18 U.S.C. §§ 152 and 157." Nyamusevya asserted that the IRS owed him a "fine under 18 U.S.C. § 3571, in the amount of $500,000.00" for "filing on May 20, 2019 its fraudulent Proof of Claim No. 4-1." Original Compl. at 3. After the United States failed to respond to the Original Complaint, Nyamusevya filed a motion for default judgment (Adv. Doc. 8). But service of the Original Complaint and summons was deficient, so the Court denied Nyamusevya's motion and afforded him more time to properly effect service. See Order (A) Denying Motion for Default Judgment and (B) Directing the Plaintiff to Properly Serve the Complaint and Summons and File Proof of Service or Face Dismissal of the Adversary Proceeding Without Prejudice (Adv. Doc. 9).
Nyamusevya then filed an amended complaint ("First Amended Complaint") (Adv. Doc. 11) and served it properly. See Debtor-Plaintiff's Amended Certificate for Service for Amended Complaint Against the Internal Revenue Service (IRS) (Adv. Doc. 13) and Debtor-Plaintiff's Notice of Proof of Service of Adversary Proceeding Complaint Against the Internal Revenue Service (IRS) (Adv. Doc. 14).
Nyamusevya alleges in the First Amended Complaint that Claim No. 4-1 and Claim No. 4-2 both were unlawful. The First Amended Complaint consists of six counts. The manner in which Nyamusevya labeled them and the grounds on which he asserts each count are as follows:
Count One: Malicious and Willful and Fraudulent Disregard of Federal and Bankruptcy Law in Bad Faith
• Asserts claims under 18 U.S.C. §§ 152, 157 and 3571;
Count Two: Willful and Fraudulent Withholding and Concealment of Information in Violation of 18 U.S.C. § 152
• Asserts claim under 18 U.S.C. § 152;
Count Three: Willful and Fraudulent Filing [of] False Proof of Claims in Violation of 18 U.S.C. §§ 152 and §§ 157 Against the Debtor's Estate
• Asserts claims under 18 U.S.C. §§ 152, 157 and 3571;
Count Four: Willful Negligence and Infliction of Serious Emotional Distress and Mental Anguishes to Harm the Debtor
• Asserts claims under 18 U.S.C. §§ 152, 157 and 3571;
Count Five: Willfully and Negligently and Knowingly and Fraudulently Making a False Oath and Account in Relation to the Debtor's Case under Title 11
• Asserts claim under 18 U.S.C. § 152; and
Count Six: Knowingly and Fraudulently Making a False Declaration, Verification, or Statement under Penalty of Perjury under 28 U.S.C. § 1746 or in Relation to a Case under Title 11
• Asserts claims under 18 U.S.C. § 152 and 28 U.S.C. § 1746.
First Am. Compl. at 7-23.
In each of these claims for relief, Nyamusevya relies on 18 U.S.C. § 152 and/or § 157, which relate to bankruptcy crimes. He also relies on 18 U.S.C. § 3571, which is a schedule of fines for criminal violations, and on 28 U.S.C. § 1746, which governs unsworn declarations under penalty of perjury.
The United States filed a motion to dismiss ("Dismissal Motion") (Adv. Doc. 17) the First Amended Complaint under Rule 12(b) of the Federal Rules of Civil Procedure ("Civil Rule(s)"), made applicable in this adversary proceeding by Rule 7012 of the Federal Rules of Bankruptcy Procedure ("Bankruptcy Rule(s)"). Nyamusevya filed a response to the Dismissal Motion ("Nyamusevya Response") (Adv. Doc. 19), and the IRS filed a reply (Adv. Doc. 20).
Because Nyamusevya amended the Original Complaint once as a matter of course, he must seek leave of court to amend a second time, Civil Rule 15(a)(2), and he has done so. He filed a motion to amend the First Amended Complaint ("Motion to Amend") (Adv. Doc. 21) as well as a proposed second amended complaint (Adv. Doc. 22) ("Second Amended Complaint").
In the Second Amended Complaint, Nyamusevya asserts claims under some of the same statutes on which he relied in the First Amended Complaint, but he also brings new claims under the FDCPA and tort law. The manner in which Nyamusevya labeled the counts in the Second Amended Complaint and the grounds on which he asserts each count are as follows:
Count One: Malicious and Willful and Fraudulent Disregard of Federal and Bankruptcy Law in Bad Faith
•Asserts claims under 18 U.S.C. § 3571, 11 U.S.C. § 105(a) and 28 U.S.C. § 1651;
Count Two: Willful and Fraudulent Abusive and Deceptive and Unfair Debt Collection in Violation of 15 U.S.C. § 1692a of the FDCPA: 15 U.S.C. § 1692
•Asserts claim under the FDCPA;
Count Three: Willful and Fraudulent Abusive and Deceptive and Unfair Debt Collection in Violation of 15 U.S.C. § 1692d(1) and (2) of the FDCPA: 15 U.S.C. § 1692
•Asserts claim under the FDCPA;
Count Four: Willful and Fraudulent Filing of Unenforceable Proofs of Claim in Violation of 15 U.S.C. § 1692e of the FDCPA: 15 U.S.C. § 1692
•Asserts claim under the FDCPA;
Count Five: Willful and Fraudulent Violation by Filing False and Unenforceable Proofs of Claim in Violation of 15 U.S.C. § 1692f of the FDCPA: 15 U.S.C. § 1692
•Asserts claim under the FDCPA;
Count Six: Civil Liability to Debtor-Plaintiff in an Amount Equal to Actual Sustained Damages under 15 U.S.C. § 1692k(a)(1) of the FDCPA that Is in Excess of $1,000,000.00
•Asserts claim under the FDCPA;
Count Seven: Willful and Fraudulent Abuse of Bankruptcy Process in Violation of Federal Law that are Sanctionable and Punishable under 11 U.S.C. §§ 105 and 28 U.S.C. § 1651
•Asserts claims under 11 U.S.C. § 105 and 28 U.S.C. § 1651; and
Count Eight: Willful Negligence and Infliction of Serious Emotional Distress and Mental Anguishes to Harm the Debtor
•Asserts claims under the Restatement of the Law (2d) of Torts and Restatement of the Law (3d) of Torts.
Second Am. Compl. at 8-26.
In its response (Adv. Doc. 25), the United States argues that Nyamusevya's Motion to Amend must be denied because amendment would be futile.
III. Legal Analysis
A. The Proper Defendant
The First Amended Complaint names the IRS as the defendant, but the United States, not the IRS, is the proper defendant. See Benedith v. IRS., No. CV 19-9740-CBM-SK(x), 2020 WL 6064009, at *1 (C.D. Cal. Aug. 10, 2020) ("The Court . . . dismisses the IRS from this action and grants Defendant's request to substitute the United States as the proper defendant."); Szanto v. IRS (In re Szanto), 574 B.R. 862, 867 (Bankr. D. Or. 2017) (holding that the United States was the correct defendant because adversary complaint went "well beyond defeating [the IRS's] proof of claim" and "assert[ed] numerous affirmative claims for relief and seeks money damages"). Although no request has been made to substitute the United States as the defendant here, because Nyamusevya is a pro se litigant the Court may make the substitution sua sponte. See Civil Rule 21 ("On motion or on its own, the court may at any time, on just terms, add or drop a party."); Sereseroz v. Dep't of VA, 2014 WL 5297375, at *2 (N.D. Tex. Oct. 16, 2014) (noting that, where pro se plaintiffs named a federal agency rather than the United States as the defendant, "[s]ome courts have . . . added the United States as a defendant sua sponte, rather than dismiss pro se . . . litigation"); Ciancio v. Gorski, No. 98 Civ 0714E, 1999 WL 222603, at *1 (W.D.N.Y. Apr. 14, 1999) (substituting the proper defendant sua sponte in proceeding commenced by a party pro se); Dawes v. United States, 1985 WL 84, at *1 n.1 (D.Kan.1985) (substituting the United States sua sponte as a defendant in place of defendants, including IRS, that plaintiffs improperly named). The Court therefore substitutes the United States as the defendant.
B. The Dismissal Motion
The United States moves for dismissal of the First Amended Complaint based both on a lack of subject-matter jurisdiction under Civil Rule 12(b)(1) and a failure to state a claim upon which relief can be granted under Civil Rule 12(b)(6). The Court is "bound to consider the 12(b)(1) motion first, since the Rule 12(b)(6) challenge becomes moot if this court lacks subject matter jurisdiction." Moir v. Greater Cleveland Reg'l Transit Auth., 895 F.2d 266, 269 (6th Cir. 1990); see also McCasland v. City of Castroville, 478 Fed.Appx. 860, 861 (5th Cir. 2012) ("When a Rule 12(b)(1) motion is filed in conjunction with a Rule 12(b)(6) motion . . . courts must consider the jurisdictional challenge first, [because] "[d]oing so prevents a court without jurisdiction from prematurely dismissing a case with prejudice.") (cleaned up).
1. Dismissal for Lack of Subject-Matter Jurisdiction
Given the United States' challenge to the Court's subject-matter jurisdiction, Dismissal Mot. at 5-7, Nyamusevya has the burden of proving that the Court has jurisdiction. See Williams v. Shermeta, Chimko & Kilpatrick, 36 Fed.Appx. 550, 551 (6th Cir. 2002). For the reasons set forth below, the Court concludes that Nyamusevya has failed to carry his burden of establishing that the Court has subject-matter jurisdiction over the claims asserted in the First Amended Complaint.
a. Lack of Jurisdiction Over Criminal Matters
Nyamusevya alleges in each count of the First Amended Complaint that the IRS committed bankruptcy crimes by violating 18 U.S.C. §§ 152 and 157, which make it a crime to make false oaths and claims, file a false claim in a bankruptcy case, or otherwise engage in bankruptcy fraud, and he also purports to assert a claim under 18 U.S.C. § 3571, which sets forth a schedule of fines for criminal violations. See First Am. Compl. at 9, 11-13, 17, 21-22. But bankruptcy courts derive their jurisdiction over proceedings from a federal statute that grants jurisdiction over certain civil proceedings, 28 U.S.C. § 1334(b), and it is therefore well established that bankruptcy courts do not have subject-matter jurisdiction over criminal matters. See Arenas v. Inslee (In re Arenas), Adv. No. 19-01134-MLB, 2021 WL 5412681, at *4 (B.A.P. 9th Cir. Nov. 19, 2021) (relying on § 1334(b) in support of the holding that "the bankruptcy court lacks jurisdiction over criminal matters."); Rae v. United States (In re Rae), 436 B.R. 266, 275 (Bankr. D. Conn. 2010) ("As a matter of law, this Court lacks subject matter jurisdiction over alleged violations of criminal statutes."); In re Szabo Contracting, Inc., 283 B.R. 242, 255 (Bankr. N.D.Ill. 2002) ("All federal criminal jurisdiction is vested solely in the district court and not in the bankruptcy court."). As a bankruptcy court, therefore, this Court lacks subject-matter jurisdiction over the claims Nyamusevya asserts under 18 U.S.C. §§ 152, 157 and 3571.
b. Lack of Jurisdiction Based on No Waiver of Sovereign Immunity
More than that, because of the United States' sovereign immunity, no court has jurisdiction over Nyamusevya's claims. "[T]he United States is protected by sovereign immunity and on this basis cannot be sued without its consent." S. Rehab. Grp., P.L.L.C. v. Sec'y of Health & Hum. Servs., 732 F.3d 670, 676 (6th Cir. 2013). Under certain circumstances, sovereign immunity can be waived. But the United States contends that its sovereign immunity has not been waived here. Dismissal Mot. at 7-8. Indeed, nothing in the criminal statutes on which Nyamusevya relies waives the sovereign immunity of the United States. That is reason enough to rule in favor of the United States. See United States v. Sommers, 864 F.Supp. 902, 904 (S.D. Iowa 1994) ("None of the statutes on which defendant relies explicitly creates a waiver of sovereign immunity in criminal forfeiture cases. That ends the matter.").
Only Congress can waive sovereign immunity, and such a waiver must be "unequivocally expressed" in the statutory text. Dep't of Army v. Blue Fox, Inc., 525 U.S. 255, 261 (1999). "A waiver of sovereign immunity may not be implied and exists only when Congress has expressly waived immunity by statute." Muniz-Muniz v. U.S. Border Patrol, 741 F.3d 668, 671 (6th Cir. 2013). As the plaintiff, Nyamusevya has the burden of establishing that the United States has waived its sovereign immunity, Morris v. United States, 540 Fed.Appx. 477, 483 (6th Cir. 2013), and "[a]ny such waiver must be strictly construed in favor of the United States." Ardestani v. I.N.S., 502 U.S. 129, 137 (1991). "Without a waiver of sovereign immunity, a court is without subject matter jurisdiction over claims against federal agencies or officials in their official capacities." Muniz-Muni, 741 F.3d at 671.
The First Amended Complaint said nothing about a waiver of sovereign immunity. In the Nyamusevya Response, Nyamusevya relies on § 106(a) and (b) of the Bankruptcy Code in support of his argument that the sovereign immunity of the United States has been waived. Nyamusevya Resp. at 1, 4. Neither subsection, however, waives the United States' immunity from being sued for violations of the statutes on which Nyamusevya relies in the First Amended Complaint.
Nyamusevya argues that § 106(a) acts as a waiver of sovereign immunity in bankruptcy cases, thereby allowing the Court to exercise subject-matter jurisdiction over the claims asserted in the First Amended Complaint. Nyamusevya Resp. at 1-4. He is mistaken. Section 106(a)(1) enumerates the sections of the Bankruptcy Code under which the sovereign immunity of the United States is waived. Section 106(a)(1) provides that "[n]notwithstanding an assertion of sovereign immunity, sovereign immunity is abrogated as to a governmental unit to the extent set forth in this section with respect to the following:
(1) Sections 105, 106, 107, 108, 303, 346, 362, 363, 364, 365, 366, 502, 503, 505, 506, 510, 522, 523, 524, 525, 542, 543, 544, 545, 546, 547, 548, 549, 550, 551, 552, 553, 722, 724, 726, 744, 749, 764, 901, 922, 926, 928, 929, 944, 1107, 1141, 1142, 1143, 1146, 1201, 1203, 1205, 1206, 1227, 1231, 1301, 1303, 1305, and 1327 of this title.11 U.S.C. § 106(a)(1).
Section 106(a)(2) then provides that bankruptcy courts "may hear and determine any issue arising with respect to the application of such sections to governmental units." 11 U.S.C. § 106(a)(2). And § 106(a)(3) authorizes courts to issue orders against governmental units under those sections. As these sections make clear, they waive claims that arise under the Bankruptcy Code. See Otoh v. Barr (In re Otoh), No. 20-61779-BEM, 2020 WL 6253674, at *6 (Bankr. N.D.Ga. Oct. 22, 2020). But in the First Amended Complaint Nyamusevya does not assert claims arising under the Bankruptcy Code; instead, he asserts claims based on criminal statutes. Section 106(a) therefore does not waive the sovereign immunity of the United States.
Section 106(b) provides that if a governmental unit files a proof of claim in a bankruptcy case, it "is deemed to have waived sovereign immunity with respect to a claim against such governmental unit that is property of the estate and that arose out of the same transaction or occurrence out of which the claim of such governmental unit arose." 11 U.S.C. § 106(b). Section 106(b) waives "claims that are in the nature of compulsory counterclaims when the [governmental unit] has filed a proof of claim." Otoh, 2020 WL 6253674, at *6. The IRS's claim arises in part from taxes assessed in 2012 for unpaid tax liabilities for tax years 2008, 2009 and 2010, and in part from income taxes assessed in 2015 for tax year 2013. See Claim 4-2. Nyamusevya's claim based on the filing of allegedly fraudulent proofs of claim does not arise from the same transaction as the claims asserted by the IRS in its proofs of claim. See Harchar v. United States (In re Harcher), 694 F.3d 639, 650 (6th Cir. 2012) ("[A]ny logical relationship is far more attenuated because the IRS's 'proof of claims' related to the Harchar's 1993, 1994, 1995 and 1997 returns, while her due process claim stemmed from the IRS's manual processing of their 1999 return. We hold that Harchar's due process claim in this case does not arise out of the same transaction or occurrence as the IRS's earlier claims."). That is, Nyamusevya's claim against the IRS-based on its filing of a proof of claim-does not arise out of the same transaction or occurrence from which the claims of the IRS for taxes arose. Put another way, it is not in the nature of a compulsory counterclaim. Section 106(b) accordingly does not waive the sovereign immunity of the United States here.
"Sovereign immunity is jurisdictional in nature." F.D.I.C. v. Meyer, 510 U.S. 471, 475 (1994); see also Reetz v. United States, 224 F.3d 794, 795 (6th Cir. 2000) (holding that a plaintiff "must identify a waiver of sovereign immunity in order to proceed against the United States," and "[i[f he cannot identify a waiver, [his claims] must be dismissed on jurisdictional grounds"). As the United States says, "[t]here is no waiver of sovereign immunity for a private citizen to bring an action against the United States under a criminal statute." Dismissal Mot. at 8. Because Nyamusevya has failed to identify a basis for waiver of the United States' sovereign immunity, the First Amended Complaint must be dismissed for lack of subject-matter jurisdiction.
c. Lack of Jurisdiction Based on Lack of Standing
Nyamusevya's claims also must be dismissed for lack of jurisdiction because there is no private right of action under the statutes on which he relies. First, there is no private right of action under criminal statutes. See Massey v. Bank of Edmondson Cnty., 49 Fed.Appx. 604, 606 (6th Cir. 2002)(holding that criminal statutes "do not provide for a private cause of action"); Yee v. Ditech Fin., LLC (In re Yee), Adv. No. 16-05029, 2017 WL 3300607, at *4 (B.A.P. 9th Cir. Aug. 3, 2017) ("Federal case law is replete with decisions holding there is no private right of action for violations of 18 U.S.C. § 152 which addresses, among other things, crimes for false oaths and claims."). Courts have applied this rule to the filing of proofs of claim. See Chantel v. Federated Rural Elec. Ins. Exch. Inc., No. CV-16-03310-PHX-SPL, 2017 WL 5957910, at *2 (D. Ariz. Jan. 30, 2017) ("Although the filing of a fraudulent or false proof of claim in a bankruptcy case is a federal crime under 18 U.S.C. §§ 157, 152(4), federal criminal statutes are prosecuted by the United States Attorney, not by civil litigants, and Congress did not create any private right of action for a violation of these statutes."); Heavrin v. Boeing Cap. Corp., 246 F.Supp.2d 728, 731 (W.D. Ky. 2003)("[T]here is no private cause of action under 18 U.S.C. § 152(4) for filing a false proof of claim in a bankruptcy proceeding."), aff'd, sub nom Heavrin v. Nelson, 384 F.3d 199 (6th Cir. 2004).
Second, there is no private right of action under another statute on which Nyamuseva relies, 28 U.S.C. § 1746, which governs unsworn declarations under penalty of perjury. See Jagla v. Lasalle Bank, 253 Fed.Appx. 597, 599 (7th Cir. 2007) (holding that § 1746 "merely makes unsworn statements admissible if they are signed under penalty of perjury, and it does not establish a private right of action against individuals accused of committing perjury"); Liu v. Bushnell, No. CV TDC-17-1398, 2018 WL 3093974, at *13 (D. Md. June 22, 2018), aff'd sub nom. Liu v. Azar, 742 Fed.Appx. 748 (4th Cir. 2018) (holding that § 1746 did not create a private right of action but "simply prescribes the proper form of, and evidentiary weight to be accorded to, unsworn declarations.").
Finally, there is no private right of action under 28 U.S.C. § 1651. Known as the All Writs Act, it permits federal courts to "issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law." 28 U.S.C. § 1651d. The All Writs Act does not provide for a private right of action. See Iowa Voter All. v. Black Hawk Cnty., No. C20-2078-LTS, 2020 WL 6151559, at *1 n.1 (N.D. Iowa Oct. 20, 2020) (holding that "the All Writs Act . . . does not, on its own, provide any ground for jurisdiction or a private right of action"); Edelson PC v. Bandas Law Firm PC, No. 16 C 11057, 2018 WL 723287, at *13 (N.D. Ill. Feb. 6, 2018) ("The All Writs Act . . . does not provide an independent basis for jurisdiction and does not create a private cause of action.")
Because there is no private right of action under these statutes, Nyamusevya lacks standing to pursue claims under them. Glassey v. Amano Corp., No. C-05-01604 RMW, 2006 WL 889519, at *3 (N.D. Cal. Mar. 31, 2006) ("Congress specifically gave responsibility for enforcing 18 U.S.C. § 152 to the U.S. Attorneys . . . . [Plaintiff] lacks standing to enforce any cause of action based on Title 18 that he has alleged."), aff'd 285 F. App'x. 426 (9th Cir. 2008); Hill v. WPVI Channel 6, No. 03-1015 GMS, 2004 WL 2212037, at *1 (D. Del. Sept. 24, 2004) (holding that individual had no standing to enforce statute for which Congress created no private right of action); United States v. Richard Dattner Architects, 972 F.Supp. 738, 742 (S.D.N.Y. 1997) ("Plaintiff has no standing to assert a claim under the [statute] because the statute does not create a private right of action[.]") And "[i]f the plaintiff lacks standing, then the court lacks jurisdiction." Keen v. Helson, 930 F.3d 799, 802 (6th Cir. 2019); see also Gerber v. Herskovitz, 14 F.4th 500, 513 (6th Cir. 2021) ("If a plaintiff lacks standing, a federal court lacks subject matter jurisdiction and must dismiss.") (Clay, J., concurring), cert. denied, 142 S.Ct. 2714 (2022). The Court therefore lacks subject-matter jurisdiction over the First Amended Complaint based on Nyamusevya's lack of standing.
Some courts have held that the lack of a private right of action supports dismissal for failure to state a claim upon which relief can be granted rather than for lack of jurisdiction. See, e.g., Chenkin v. 808 Columbus LLC, 368 Fed.Appx. 162, 163-64 (2d Cir. 2010) (holding that claim under statute that provided no private right of action was subject to dismissal for failure to state a claim upon which relief can be granted). The Sixth Circuit, however, has warned against "confus[ing] whether a plaintiff has standing to sue, i.e., whether a private right of action exists (a jurisdictional question), with whether a plaintiff states a cause of action upon which relief can be granted (a non-jurisdictional one)." TCG Detroit v. City of Dearborn, 206 F.3d 618, 622 n.2 (6th Cir. 2000).
d. Lack of Jurisdiction Based on Vagueness
The First Amended Complaint contains several vague allegations. These include allegations that the IRS "disturbed Mr. Nyamusevya and started unreasonable collection activities," First Am. Compl. ¶ 1, that it "continued to harass and intimidate and disturbed Mr. Nyamusevya and continued its unreasonable collection activities against Mr. Nyamusevya," id. ¶ 3, and that the IRS "knew and should have known and should not have disregarded that Mr. Nyamusevya's life was overwhelmed with Defendant IRS's collection activities against Mr. Nyamusevya." Id. ¶ 23. The Court does not have subject-matter jurisdiction over such vague claims. See Drake v. Perry, No. 97-5934, 1998 WL 384567, at *2 (6th Cir. June 18, 1998). In Drake, the district court found the plaintiff's claims under the Jones Act and general maritime law to be "so vague, conclusory, attenuated, and insubstantial that they failed to support federal jurisdiction" and therefore dismissed the complaint under Civil Rule 12(b)(1). Id. (internal quotation marks omitted). The Sixth Circuit affirmed, holding that "[b]ecause the allegations presented . . . in the district court, and in this court on appeal, are wholly insubstantial and obviously without merit, being completely devoid of any facts or cognizable claims, the matter was properly dismissed for lack of subject matter jurisdiction." Id. at *2; see also Steen v. Renaissance Mfg. Co., No. 92-2211, 1993 WL 147588, at *1 (6th Cir. May 5, 1993) ("[T]his court concludes that the district court properly dismissed [the plaintiff's] case, because her complaint states only vague and conclusory allegations . . . . The allegations presented in the district court, and in this court on appeal, are wholly insubstantial and obviously without merit, so that the district court properly dismissed the complaint for lack of subject matter jurisdiction.").
e. The First Amended Complaint Must Be Dismissed Without Prejudice for Lack of Subject-Matter Jurisdiction.
For all these reasons, the Court lacks subject-matter jurisdiction over the claims asserted in the First Amended Complaint. And because the Court lacks subject-matter jurisdiction, the First Amended Complaint must be dismissed under Civil Rule 12(b)(1).
The United States requests dismissal with prejudice, Dismissal Mot. at 13, but dismissal under Civil Rule 12(b)(1) generally is without prejudice. See Thompson v. Love's Travel Stops & Country Stores, Inc., 748 Fed.Appx. 6, 7 (6th Cir. 2018) ("Because this dismissal is for want of jurisdiction . . . we remand for the district court to enter its order without rather than with prejudice."); Revere v. Wilmington Fin., 406 Fed.Appx. 936, 937 (6th Cir. 2011) ("Dismissal for lack of subject-matter jurisdiction should normally be without prejudice, since by definition the court lacks power to reach the merits of the case.").
"In rare circumstances" a court may "use its inherent power to dismiss with prejudice (as a sanction for misconduct) even a case over which it lacks jurisdiction." Ernst v. Rising, 427 F.3d 351, 367 (6th Cir. 2005) (internal quotation marks and citation omitted). The United States, however, does not contend that Nyamusevya has engaged in any misconduct that would warrant departure from the general rule that dismissals for lack of jurisdiction are without prejudice. The Court therefore dismisses the First Amended Complaint without prejudice.
2. Failure to State a Claim Upon Which Relief Can Be Granted
The United States argues (correctly) that the Court lacks jurisdiction over each claim asserted in the First Amended Complaint. Yet it seeks dismissal under both Civil Rule 12(b)(1) for lack of subject-matter jurisdiction and Civil Rule 12(b)(6) for failure to state a claim upon which relief can be granted. But "a dismissal under both rule 12(b)(1) and 12(b)(6) has a 'fatal inconsistency' and cannot stand." Ehm v. Nat'l R.R. Passenger Corp., 732 F.2d 1250, 1257 (5th Cir. 1984). The United States' motion to dismiss the First Amended Complaint for failure to state a claim is therefore denied as moot. See Moir, 895 F.2d at 269 ("[T]the Rule 12(b)(6) challenge becomes moot if this court lacks subject matter jurisdiction."); Morgan v. New Haven Hous. Auth., No. 3:11-CV-807-WWE, 2011 WL 4443479, at *2 (D. Conn. Sept. 23, 2011) (denying motion to dismiss under Civil Rule 12(b)(6) as moot because court lacked subject-matter jurisdiction); Alnutt v. State of N.Y., 813 F.Supp. 213, 217 (W.D.N.Y. 1993) (same).
C. Motion to Amend
Nyamusevya amended the Original Complaint "once as a matter of course" under Civil Rule 15(a)(1) by filing the First Amended Complaint. So any further amendments may be made only with the United States' written consent, which has not been given, or upon leave of court. Civil Rule 15(a)(2). Although courts "should freely give leave when justice so requires," id., leave of court should not be granted if the amendment would be futile, see Crawford v. Roane, 53 F.3d 750, 753 (6th Cir. 1995), and amendment would be futile if the amended complaint would not survive a motion to dismiss. See Rose v. Hartford Underwriters Ins. Co., 203 F.3d 417, 421 (6th Cir. 2000); Miller v. Calhoun Cnty., 408 F.3d 803, 817 (6th Cir. 2005) ("Amendment of a complaint is futile when the proposed amendment would not permit the complaint to survive a motion to dismiss."). For the reasons explained below, the Court concludes that the Second Amended Complaint would not survive a motion to dismiss for lack of jurisdiction or for failure to state a claim upon which relief can be granted.
1. Subject-Matter Jurisdiction
In Count One of the Second Amended Complaint, Nyamusevya relies on 18 U.S.C. § 3571, 28 U.S.C. § 1651 and 11 U.S.C. § 105(a). For the reasons already discussed, the Court does not have subject-matter jurisdiction over Nyamusevya's claims under 18 U.S.C. § 3571 and 28 U.S.C. § 1651. The Court would have subject-matter jurisdiction over the claim under § 105(a). See 11 U.S.C. § 106(a)(1) (waiving sovereign immunity under, among other sections, § 105(a) of the Bankruptcy Code). For the reasons explained in the next section, however, the claim under § 105(a) would be subject to dismissal for failure to state a claim upon which relief can be granted.
The Court turns to consider its subject-matter jurisdiction over the FDCPA claims and tort claims that Nyamusevya asserts for the first time in the Second Amended Complaint. In Counts Two through Six of the Second Amended Complaint, Nyamusevya asserts violations of the FDCPA and alleges that he has sustained damages in excess of $1 million as a result of these violations. Second Am. Compl. at 13-17. "Congress did not waive the sovereign immunity of the United States in the FDCPA." Williams v. U.S. Dist. Ct. for Dist. of Newark, N.J., 455 Fed.Appx. 142, 143 (3d Cir. 2011); see also Wagstaff v. U.S. Dep't of Educ., 509 F.3d 661, 664 (5th Cir. 2007). And, again, "[w]ithout a waiver of sovereign immunity, a court is without subject matter jurisdiction over claims against federal agencies or officials in their official capacities." Muniz-Muniz, 741 F.3d at 671. In fact, "[n]o court has subject matter jurisdiction over a suit against the United States unless it waives its sovereign immunity." Rosales v. United States, No. 07CV0624, 2007 WL 4233060, at *3 (S.D. Cal. Nov. 28, 2007). Because Nyamusevya's FDCPA claims against the United States are barred by sovereign immunity, the Court lacks subject-matter jurisdiction over the claims. See Ojo v. United States, No. 20-CV-4882 (MKB), 2020 WL 7262853, at *5 (E.D.N.Y. Dec. 9, 2020).
Nyamusevya's tort claims under the Restatement of the Law (2d) of Torts and Restatement of the Law (3d) of Torts fare no better. The Court lacks subject-matter jurisdiction to consider the tort claims asserted by Nyamusevya in the Second Amended Complaint because the United States has sovereignty immunity as to those claims as well. "Congress provided, in the [Federal Tort Claims Act], an exclusive vehicle for the assertion of tort claims for damages against the federal government." Zayler v. Dep't of Agric. (In re Supreme Beef Processors, Inc.), 468 F.3d 248, 252 (5th Cir. 2006). Although the Federal Tort Claims Act waives the United States' sovereign immunity for certain torts, the waiver does not apply to "[a]ny claim arising in respect of the assessment or collection of any tax." 28 U.S.C. 2680(c). See Hagner v. I.R.S., No. 90-3246, 1992 WL 43536, at *1 (7th Cir. 1992) ("No waiver occurred because the Federal Torts Claims Act expressly excludes from waiver actions connected with the assessment or collection of taxes."). Filing a proof of claim constitutes collection activity. See Gardner v. State of N.J., 329 U.S. 565, 573 (1947) ("When a State files a proof of claim in the reorganization court, it is using a traditional method of collecting a debt."); Reed v. LVNV Funding, LLC, 181 F.Supp.3d 523, 529 (N.D. Ill. 2015) ("As for Defendants' contention that filing a claim in bankruptcy is not an attempt to collect a debt, that argument fails the straight face test[.]"); LaGrone v. LVNV Funding, LLC (In re LaGrone), 525 B.R. 419, 425 (Bankr.N.D.Ill.2015) ("A proof of claim, of course, is intended to result in some recovery for the creditor on the debt set out in the proof of claim, and so filing a proof of claim would be within the ordinary meaning of 'debt collection.'"). Because the United States is protected by sovereignty immunity from Nyamusevya's tort claims, no court has subject-matter over them.
As a bankruptcy court, this Court lacks subject-matter jurisdiction over Nyamusevya's FDCPA claims and tort claims for another reason. The Court's subject-matter jurisdiction over proceedings is limited to three categories of civil proceedings: (1) those "arising under title 11, (2) those "arising in" bankruptcy cases and (3) those "related to" such cases. 28 U.S.C. § 1334(b). "The phrase 'arising under title 11' describes those proceedings that involve a cause of action created or determined by a statutory provision of title 11." Mich. Emp. Sec. Comm'n v. Wolverine Radio Co. (In re Wolverine Radio Co.), 930 F.2d 1132, 1144 (6th Cir. 1991). As another bankruptcy court has pointed out, FDCPA claims are created by Title 15, not Title 11, LaGrone, 525 B.R. at 421, and tort claims also do not arise under the Bankruptcy Code. The Court therefore does not have "arising under" jurisdiction over Nyamusevya's tort claims or claims under the FDCPA.
Nor does the Court have "arising in" jurisdiction over the FDCPA claims or the tort claims. "'Arising in' proceedings are those that, by their very nature, could arise only in bankruptcy cases." Wolverine Radio, 930 F.2d at 1144. The Court is not aware of any case addressing whether a tort claim based on the filing of a proof of claim arises in the bankruptcy case. But in the analogous context of the FDCPA, courts have held that an FDCPA claim based on a creditor's filing of a proof of claim is not a proceeding that "arises in" the bankruptcy. See Bernadin v. Ocwen Loan Servicing, LLC (In re Bernadin), 609 B.R. 26, 34 (Bankr. E.D. Pa. 2019), vacated in part on other grounds on reconsideration, 610 B.R. 787 (Bankr. E.D. Pa. 2019); Edwards v. LVNV Funding, LLC (In re Edwards), 539 B.R. 360, 362 (Bankr. N.D.Ill. 2015); Perkins v. LVNV Funding, LLC (In re Perkins), 533 B.R. 242, 251 (Bankr. W.D. Mich. 2015); LaGrone 525 B.R. at 421. As one court reasoned, "FDCPA actions are not proceedings that by their nature can arise only in the context of a bankruptcy case," and the fact that the "conduct alleged to violate the FDCPA took place in a bankruptcy case does not make an action based on that conduct one 'arising in' the case." LaGrone, 525 B.R. at 421. And as another court said:
I recognize that the FDCPA claim here arose out of the filing of a proof of claim and that proofs of claim exist only within a bankruptcy case. But that factual circumstance does not alter the legal construct that an FDCPA claim is a distinct federal cause of action that has no nexus to the Bankruptcy Code. The conduct the Debtor challenges as a kind of federal statutory tort just happened to have occurred in a bankruptcy case. It could just as easily have occurred in any other court where creditors and their agents seek to collect debts.Bernadin, 609 B.R. at 34 & n.7. All that is true of Nyamusevya's tort claims as well.
The Court also would not have related-to jurisdiction over the tort claims and FDCPA claims asserted in the Second Amended Complaint. Matters "related to" a bankruptcy case are those whose outcome "could conceivably have any effect on the estate being administered in bankruptcy." Wolverine Radio, 930 F.2d at 1142. This is a Chapter 7 case in which the Chapter 7 trustee has filed a report of no distribution. The purpose of this report is to "close administration of the case," and it "certifies that the trustee has reviewed the schedules, investigated the facts, and determined that there are no assets to liquidate for the benefit of creditors." Handbook for Chapter 7 Trustees at 4-3 (Oct. 1, 2012), available at https://www.justice.gov/ust/private-trustee-handbooks-reference-materials/chapter-7-handbooks-reference-materials. Nyamusevya therefore is attempting to bring the claims on his own behalf, and any resulting recovery would have no effect on the bankruptcy estate. As one bankruptcy court put it:
The [Chapter 7] Debtors are seeking to recover damages based on the claims for their own benefit, and not for the benefit of the estate. Because the outcome of the proceeding will not have any effect on the estate being administered in bankruptcy, the Debtors' FDCPA and state law claims are not 'related to' the bankruptcy case within the meaning of 28 U.S.C. § 1334(b), and this Court lacks subject matter jurisdiction over the claims[.]Wynne v. Aurora Loan Servs., LLC (In re Wynne), 422 B.R. 763, 770 (Bankr. M.D. Fla. 2010).
Because Nyamusevya is pursuing the FDCPA and tort claims on his own behalf, this case stands in stark contrast to Murff v. LVNV Funding LLC (In re Murff), No. 13 B 44431, 2015 WL 4585167 (Bankr. N.D.Ill. July 28, 2015). In Murff, the bankruptcy court found that it had related-to jurisdiction over the FDCPA claim being asserted by the Chapter 13 debtor because "any damages recover[ed] would be a basis for increased plan payments and an amendment of her plan under section 1329(a)(1)[.]" Murff, 2015 WL 4585167, at *2 (cleaned up). Thus, "resolution [of the FDCPA claim] could affect[] the amount of property available for distribution to . . . creditors . . .[.]" Id. Not so here. Any recovery on the FDCPA and tort claims may benefit Nyamusevya, but not his bankruptcy estate. Given that a recovery on these claims would have no conceivable impact on the bankruptcy estate, the Court lacks subject-matter jurisdiction over them.
For all these reasons, the Court lacks subject-matter jurisdiction over the FDCPA claims and the tort claims asserted by Nyamusevya in the Second Amended Complaint.
2. Failure to State a Claim Upon Which Relief Can Be Granted
Even if the Court had jurisdiction, the Second Amended Complaint would be subject to dismissal under Civil Rule 12(b)(6) for failure to state a claim upon which relief can be granted. Dismissal under Civil Rule 12(b)(6) is appropriate if a complaint "does not make out a cognizable legal theory or does not allege sufficient facts to support a cognizable legal theory." Duff v. Centene Corp., 565 F.Supp.3d 1004, 1019 (S.D. Ohio 2021); see also Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008). As explained below, none of the claims for relief asserted in the eight-count Second Amended Complaint are founded on a cognizable legal theory.
In Count One, Nyamusevya asserts for the first time a claim under § 105(a) of the Bankruptcy Code. Section 105(a) authorizes bankruptcy courts to "issue any order, process, or judgment that is necessary or appropriate to carry out the provisions of [the Bankruptcy Code]." 11 U.S.C. § 105(a). Section 105(a) does not create an independent cause of action, but is invoked in connection with, and to enforce, another section of the Bankruptcy Code. See Joubert v. ABN AMRO Mortg. Grp., Inc. (In re Joubert), 411 F.3d 452, 455 (3d Cir. 2005) (holding that § 105(a) "does not create substantive rights that would otherwise be unavailable under the Bankruptcy Code.") (cleaned up). The Second Circuit has pointed out that a bankruptcy court's powers under § 105(a) are limited:
The equitable power conferred on the bankruptcy court by section 105(a) is the power to exercise equity in carrying out the provisions of the Bankruptcy Code, rather than to further the purposes of the Code generally, or otherwise to do the right thing. This language suggests that an exercise of section 105 power be tied to another
Bankruptcy Code section and not merely to a general bankruptcy concept or objective.New England Dairies, Inc. v. Dairy Mart Convenience Stores, Inc. (In re Dairy Mart Convenience Stores, Inc.), 351 F.3d 86, 92 (2d Cir. 2003) (cleaned up). Because Nyamusevya does not tie relief under § 105(a) to another provision of the Bankruptcy Code, he fails to state a claim for relief under § 105(a). See Mwangi v. Wells Fargo Bank, N.A. (In re Mwangi), 764 F.3d 1168, 1179 (9th Cir. 2014) ("The Debtors have identified no other relevant provisions of the Bankruptcy Code. We therefore conclude that the Debtors cannot state a claim under § 105(a)."); Harker v. Wells Fargo Bank, NA (In re Krause), 414 B.R. 243, 263 (Bankr. S.D. Ohio 2009) (holding that the plaintiff failed to state a claim under § 105(a) because it may only "be invoked to preserve a right elsewhere in the Code."). The claims for relief asserted in the Second Amended Complaint that are based on § 105(a) therefore would be subject to dismissal for failure to state a claim upon which relief can be granted.
The other statutory provisions on which Nyamusevya relies in Count One are 18 U.S.C. § 3571 and 28 U.S.C. § 1651. Again, the All Writs Act of 28 U.S.C. § 1651 permits federal courts to "issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law." Granting Nyamusevya's request for a judgment in the amount of either half a million or a million dollars would not be necessary or appropriate in aid of the Court's jurisdiction. Nor does the All Writs Act provide any basis for the imposition of damages. See One Hundred Pearl, Ltd. v. Vantage Sec., Inc., No. 93 CIV.7214(PKL), 1997 WL 401670, at *3 (S.D.N.Y. July 16, 1997) ("The Court does not have the authority to order the payment of damages under the All Writs Act."). Nyamusevya therefore fails to state a claim upon which relief can be granted under 28 U.S.C. § 1651. And because 18 U.S.C. § 3571 is merely a schedule of fines for criminal violations, Nyamusevya also fails to state a claim upon which relief can be granted under that statutory provision.
In Counts Two through Six, Nyamusevya contends that the IRS violated the FDCPA and alleges that he has sustained damages in excess of one million dollars as a result of those violations. Second Am. Compl. at 13-17. But the FDCPA expressly provides that it "shall not be construed to curtail or limit the right of the United States under any other Federal law or any State law-(1) to collect taxes or to collect any other amount collectible in the same manner as a tax[.]" 28 U.S.C. § 3003(b)(1) (West 2023). See United States v. Upton, 967 F.Supp. 57, 58 (D. Conn. 1997) (holding that "Congress clearly intended that the Government retain its option to proceed under other federal or state law" and that "[a]ccordingly, the FDCPA does not apply to this action and the Government is free to proceed under other state or federal law.").
Further, the FDCPA governs actions taken with respect to a "debt," and the definition of "debt" in the FDCPA-"any obligation or alleged obligation of a consumer to pay money arising out of a transaction in which the money, property, insurance, or services which are the subject of the transaction are primarily for personal, family, or household purposes, whether or not such obligation has been reduced to judgment," 15 U.S.C. § 1692a(5)-does not include taxes. See Beggs v. Rossi, 145 F.3d 511, 512 (2d Cir. 1998) ("We note that the Federal Trade Commission ("FTC"), in its policy statement interpreting the FDCPA, has concluded that [t]he term [debt] does not include: unpaid taxes. . . . We see no reason to disagree with the FTC's interpretation of the FDCPA, which accords with the plain meaning of the statute."); Staub v. Harris, 626 F.2d 275, 278 (3d Cir. 1980) ("[T]he statutory language does not appear to support the construction of a tax as a debt under the FDCPA."); Mortland v. IRS, No. A-03-CA-115-SS, 2003 WL 21791249, at *3 (W.D. Tex. June 24, 2003) ("[P]laintiffs have failed to state a claim under the FDCPA because unpaid income taxes are not considered debts for purposes of the act."). For these reasons, Counts Two Through Six of the Second Amended Complaint would be subject to dismissal for failure to state a claim upon which relief can be granted.
In Count Seven, Nyamusevya again alleges that the IRS willfully and fraudulently filed false proofs of claim and that such actions are "sanctionable and punishable under 11 U.S.C. § 105 and 28 U.S.C. § 1651." Second Am. Compl. at 17. For the reasons already stated, Nyamusevya is not entitled to any recovery under these statutes. Count Seven therefore fails to state a claim upon which relief can be granted.
In Count Eight of the Second Amended Complaint, Nyamusevya asserts a claim under the Restatement of the Law (2d) of Torts § 46 ("Outrageous Conduct Causing Severe Emotional Distress"), which provides that "[o]ne who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm." Restatement of the
Law (2d) of Torts § 46(1). He also relies on Restatement of the Law (3d) of Torts § 45, which defines "emotional harm" to mean "impairment or injury to a person's emotional tranquility." He contends that the United States should be held liable in tort based on the filing of the IRS's proofs of claim. Id. at 19-26. For example, Nyamusevya asserts that:
[T]he Defendant-U.S.A. (IRS) knew and should have known that by disregarding its own self-authenticating and genuine documents and by filing false and fraudulent Proof of Claims [sic] in its pursuit to harm and injure Mr. Nyamusevya, the Defendant-U.S.A. (IRS)'s conduct was so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be conspicuously regarded as atrocious, and utterly intolerable in a civilized community; hence a recitation of the Defendant-U.S.A. (IRS)'s own acts and facts to an average member of the community would arouse a traumatized and alarming and disappointing resentment against the Defendant-U.S.A. (IRS), and lead him to
exclaim, "Outrageous and utterly intolerable in a civilized community!"Id. at 23.
The Court has no reason to believe that the IRS's proofs of claim are, as Nyamusevya puts it, "false and fraudulent." But assuming for the sake of argument that they are, they still do not support a finding that the IRS engaged in tortious activity. As another court said in dismissing a tort claim based on the filing of a proof of claim: "Filing false claims in a bankruptcy proceeding and offering false testimony are arguably bad acts, and potentially criminal as well, but they do not rise to the level of going beyond all possible bounds of decency, nor are they behaviors considered utterly intolerable in a civilized community." Heavrin v. Boeing Cap. Corp., 246 F.Supp.2d 728, 731 (W.D. Ky. 2003), aff'd, sub nom Heavrin v. Nelson, 384 F.3d 199 (6th Cir. 2004); see also Jacques v. U.S. Bank N.A. (In re Jacques), 416 B.R. 63, 83 (Bankr. E.D.N.Y. 2009) (granting motion to dismiss for failure to state a claim in favor of creditor that filed proof of claim alleged by the debtor to have caused negligent and intentional infliction of emotional distress). Count Eight of the Second Amended Complaint therefore would be subject to dismissal for failure to state a claim upon which relief can be granted.
In the end, each of the claims set forth in the Second Amended Complaint is subject to dismissal, and the filing of the Second Amended Complaint would therefore be futile. Because Nyamusevya filed the Second Amended Complaint on the docket rather than as an exhibit to the Motion to Amend, it must be stricken as improperly filed. See Priorities USA v. Nessel, No. 19-13341, 2020 WL 2615504, at *3 (E.D. Mich. May 22, 2020) (striking pleading that parties improperly filed on the docket rather than as an exhibit to their motion).
IV. Conclusion
For all these reasons, the Dismissal Motion is GRANTED under Civil Rule 12(b)(1), the First Amended Complaint is DISMISSED for lack of subject-matter jurisdiction without prejudice, and the Motion to Amend is DENIED. The Second Amended Complaint is STRICKEN. The Court will enter a separate final judgment entry in accordance with this opinion.
IT IS SO ORDERED.