Opinion
CASE NO. 1:02 CV 1809
November 20, 2002
MEMORANDUM OF OPINION AND ORDER
This action was removed from the Lake County Court of Common Pleas on September 16, 2002 by the defendant Internal Revenue Service. Accompanying the Notice of Removal was the government's Motion to Dismiss pursuant to FED. R. Civ.P. 12(b)(1) and (6). For the reasons set forth below, the Motion is granted, the claims asserted against the Internal Revenue Service are dismissed without prejudice, and this matter is remanded to the appropriate state court.
I. Background
Plaintiff pro se William W. Bridge, III alleges that he retained attorney Frank R. Brancatelli to represent him in several legal matters. It appears from the complaint that he obtained a referral to Mr. Brancatelli through the Lake County Bar Association. In February, 2002, Mr. Brancatelli allegedly admitted to the plaintiff that he was the subject of a federal grand jury inquiry. Plaintiff claims that after this revelation, Mr. Brancatelli began to neglect the legal matters entrusted to him, resulting in the dismissals of several pending cases for want of prosecution. He contends the attorney refused to provide an accounting for the time he spent on plaintiffs legal matters, inform him of the status of his cases, provide copies of communications and pleadings he filed on plaintiffs behalf, or return any of plaintiffs legal files.
In addition, plaintiff claims Mr. Brancatelli advised plaintiff to enter his business, Nations Construction, LLC ("Nations Construction") into construction contracts with Ry-Marc Plastics, Inc. ("Ry-Marc") and Travis Products, Inc. ("Travis"). Ry-Marc and Travis assigned insurance proceeds due to them from the Ohio Casualty Group of Insurance Companies ("OCG") to Nations Construction. These proceeds were allegedly intended to cover a portion of the funds due to Nations Construction under the contract. Plaintiff states Mr. Brancatelli convinced him to permit the monies due to Nations Construction under these contracts to be paid into Mr. Brancatelli's IOLTA trust account. Mr. Brancatelli would then disburse the payments to Nations Construction. He contends he discovered that Mr. Brancatelli also represented Ry-Marc and Travis in legal matters and often permitted Ry-Marc and Travis to deposit money in his attorney IOLTA account to avoid attachment by their creditors. One of these creditors was allegedly the Internal Revenue Service. Plaintiff claims that at some point, Mr. Brancatelli, Ry-Marc and Travis stopped making payments to him and misappropriated funds due to him from the IOLTA account. He further alleges that Ry-Marc and Travis caused the insurance proceeds from OCG which were assigned to him to be diverted to other sources. Plaintiff does not state the amount of money he believes to still be due to Nations Construction under the contracts.
Exhibit D of the amended complaint suggests that the IRS has filed a tax lien in the amount of $71,220.80 against property owned by Ry-Marc. In addition to the amount owed to the IRS, the exhibit suggests that Ry-Marc owes $71,005.28 to judgment creditors, and $17,831.00 to State and local government bodies for unpaid property taxes.
Plaintiff filed an action against Mr. Brancatelli in the Lake County Court of Common Pleas. The date of that filing is not discernable from the documents provided to this court. On July 29, 2002, plaintiff filed an amended complaint in that action. The amended complaint, which was attached to the Notice of Removal, names attorney Brancatelli, the Lake County Bar Association, Ry-Marc, Travis, Ry-Marc and Travis President Joseph Soltesiz, Sr., OCG, and the Internal Revenue Service as defendants. It contains five claims for relief. Count I of the amended complaint contains a claim for legal malpractice against Mr. Brancatelli. Count II contains a claim for legal malpractice against the Lake County Bar Association. Count m asserts a claim for replevin against Mr. Brancatelli. Count IV asserts claims of theft, conversion, and tortious interference with contract against Brancatelli, Ry-Marc, Travis, Soltesiz, and OCG. Count V sets forth claims for breach of fiduciary duty against Brancatelli, Ry-Marc, Travis, Soltesiz, and OCG. Plaintiff seeks injunctive relief, and monetary damages.
The amended complaint sets forth six Counts. The first five Counts contain claims against various defendants. Count VI sets forth a request for specific relief. It does not contain a separate legal claim.
On September 16, 2002, the United States filed a Notice of Removal and a Motion to Dismiss pursuant to FEDR. Civ. P. 12(b)(1) and (6). In the Motion, the United States asserts that plaintiff has not affirmatively demonstrated that the United States has waived its sovereign immunity. It further asserts that the plaintiff has failed to state a claim upon which relief may be granted. The government seeks dismissal from this action and remand of the remaining issues to
II. Analysis
To survive a motion to dismiss, the plaintiffs complaint mast contain "either direct or indirect allegations respecting all material elements to sustain recovery under some viable legal theory." Bd. of Trustees of Painesville Township V. City of Painesville. Ohio, 200 F.3d 396, 398 (6th Cir. 1999). The court must construe the complaint in a light most favorable to the plaintiff, accept as true all of plaintiffs well-plead factual allegations, and determine whether plaintiff can prove no set of facts in support of his claim that would entitle him to relief Id; See Conley v. Gibson 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Rossborough Mfg. Co. v. Trimble, 301 F.3d 482, 489 (6th Cir. 2002). While pro se pleadings are liberally construed, Boag v. MacDougall, 454 U.S. 364, 365 (1982) (per curiam); Haines v. Kerner, 404 U.S. 519, 520 (1972), the plaintiff bears the burden of proving subject matter jurisdiction when it is challenged. Rogers v. Stratton Indus., Inc., 798 F.2d 913, 915 (1986).
In the present case, the plaintiff has stated no apparent cause of action against the Internal Revenue Service. Plaintiff indicates that the "United States Government, Internal Revenue Service . . . is named herein as a necessary party only under [Ohio Civil] Rule 19 because the IRS is a judgment creditor of plaintiff William W. Bridge, III, Nations Construction, LLC, and Defendants Brancatelli, Soltesiz, Ry-Marc and Travis." (Am. Compl. at 4.) The relief he seeks from the government is unclear.
The United States, as a sovereign, cannot be sued without its prior consent, and the terms of its consent define the court's subject matter jurisdiction. McGinness v. U.S., 90 F.3d 143, 145 (6th Cir. 1996). A waiver of sovereign immunity must be strictly construed, unequivocally expressed, and cannot be implied. U.S. v. King, 395 U.S. 1, 4 (1969); Soriano v. U.S., 352 U.S. 270, 276 (1957). Although there are a number of potential claims that plaintiff may be seeking to assert against the Internal Revenue Service based upon the facts stated in the amended complaint, none is reasonably discernable from the face of the pleading. District courts are not required to conjure up questions never squarely presented to them. Id. at 1278. To do so would "require . . . [the courts] to explore exhaustively all potential claims of a pro se plaintiff, . . . [and] would . . . transform the district court from its legitimate advisory role to the improper role of an advocate seeking out the strongest arguments and most successful strategies for a party." Id. at 1278. Even liberally construing the pleading, there is not a sufficient indication that the United States waived its sovereign immunity. Consequently, plaintiff failed to demonstrate that this court would have subject matter jurisdiction over the United States. The claims against this defendant are therefore dismissed without prejudice pursuant to FED R. Civ P. 12(b)(1).
A dismissal for lack of subject matter jurisdiction does not operate as a dismissal on the merits. Rogers v. Stratton Industries. Inc., 798 F.2d 913, 917 (6th Cir. 1986).