Opinion
No. 3:02cv512
June 28, 2002
MEMORANDUM and ORDER
Before the Court for disposition is defendant's motion to dismiss plaintiff's complaint pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. Also before the Court are plaintiff's motions to (1) tile a supplemental pleading pursuant to Rule 15(d) of the Federal Rules of Civil Procedure; (2) sanction Beatriz T. Saiz, Esq. of the Tax Division of the United States Department of Justice under Rule 11 of the Federal Rules of Civil Procedure; (3) submit interrogatories to defendant; and (4) conduct discovery. Plaintiff is William F. Kaetz, ("Kaetz"). Defendant is the Internal Revenue Service, ("IRS").
This case concerns the filing of a Notice of Federal Tax Lien, ("Notice"), against Kaetz's property. Kaetz argues that the Notice is not in compliance with the requirements of 26 U.S.C. § 6065 and therefore is unlawful. For the reasons that follow, we will grant the IRS's motion to dismiss pursuant to Rule 12(b)(6) and deny Kaetz's motions.
Kaetz originally filed the instant complaint in the Court of Common Pleas of Monroe County, Pennsylvania. The IRS removed the complaint to this Court pursuant to 28 U.S.C. § 1444;
Discussion
A. Kaetz's Motions Pursuant to Rule 15(d) and Rule 11
Kaetz moves to supplement his complaint pursuant to Rule 15(d) of the Federal Rules of Civil Procedure. Under Rule 15 a party may, with court approval, supplement a pleading to address matters "which have happened since the date of the pleading sought to be supplemented." FED. R. Civ. P. 15(D). Kaetz's proposed supplemental pleading (Docket No. 9) does not address any matters that have occurred since the filing of his original complaint. In fact, in his motion to file a supplemental pleading, plaintiff states that he seeks to file the supplemental pleading so as to "conform to the Federal Rules of Civil Procedure." That is not the purpose of a supplemental pleading. See 6A CHARLES ALLAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE: Civil 2D ¶ 1504 (2d ed. 1990) (discussing purpose of Rule 15(d)).
Even if we were to read Kaetz's motion to file a supplemental pleading as a motion to file an amended complaint pursuant to Rule 15(a) of the Federal Rules of Civil Procedure, we still would not grant it. Although motions to amend complaints are to be liberally granted, a district court may deny "leave to amend where the motion would not withstand a motion to dismiss." Massarsky v. General Motors Corp., 706 F.2d 111, 125 (3d Cir. 1983). In its pending motion to dismiss, the IRS raises arguments regarding the sovereign immunity of the United States, our jurisdiction under the Anti-Injunction Act, and the Internal Revenue Code, 26 U.S.C. § 6065, that Kaetz's proposed amended complaint will not withstand. Therefore, we will deny Kaetz's motion to serve supplemental pleadings.
Kaetz also moves, pursuant to Rule 11 of the Federal Rules of Civil Procedure, for sanctions against Beatriz T. Saiz, Esq., of the tax division of the United States Department of Justice. Kaetz alleges that Saiz does not have the authority to appear before this Court and that we should sanction her for so doing. Rule 11 is designed to deter meritless filings in federal courts. Cooter Gell v. Hartmarx Corp., 496 U.S. 384, 393 (1990). Kaetz's allegation itself is meritless and no basis exists for Rule 11 sanctions against Saiz.
B. IRS's Motion to Dismiss Pursuant to Rule 12(b)(6)
The IRS moves to dismiss Kaetz's complaint, pursuant to Rule 12(b)(6), for failure to state a claim for which relief can be granted. We will grant the IRS's motion to dismiss pursuant to Rule 12(b)(6).
When a 12(b)(6) motion is filed, the sufficiency of a complaint's allegations are tested. Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). The issue is whether the facts alleged in the complaint, if true, support a claim upon which relief can be granted. Morse v. Lower Merion School District, 132 F.3d 902, 906 (3d Cir. 1997). In deciding a 12(b)(6) motion, the Court must accept as true all factual allegations in the complaint and give the pleader the benefit of "all reasonable inferences that can fairly be drawn therefrom, and view them in the light most favorable to the plaintiff." Id. The Court should not credit, however, "bald assertions" and "legal conclusions" within a complaint. Id. "A 12 (b)(6) motion should be granted `if it appears to a certainty that no relief could be granted under any set of facts which could be proved.'" Id. (quoting D.P. Enter. Inc. v. Bucks County Cmty. College, 725 F.2d 943, 944 (3d Cir. 1984)).
The IRS filed a Notice of Federal Tax Lien, ("Notice"), against Kaetz's property in the Court of Common Pleas of Monroe County, Pennsylvania. Kaetz contends in his complaint that the Notice does not conform with the requirements of 26 U.S.C. § 6065, ("Section 6065") and therefore is invalid. Section 6065, entitled Verification of Returns, reads, in relevant part: "any return, declaration, statement, or other document required to be made under any provision of the internal revenue laws or regulations shall contain or be verified by a written declaration that it is made under the penalties of perjury." 26 U.S.C. § 6065 (West 1989).
Kaetz argues that the IRS's Notice does not conform with section 6065 because it was not signed under penalty of perjury. Section 6065 requires taxpayers filing tax returns or other documents with the IRS to do so under penalty of perjury. Vaira v. Commissioner of Internal Revenue, 444 F.2d 770.777 (3d Cir. 1971); Olpin v. Commissioner of Internal Revenue, 270 F.3d 1297, 1301 (10th Cir. 2001); Morelli v. Alexander, 920 F. Supp. 556, 558 (S.D.N.Y. 1996). It does not apply to notices issued by the IRS. Thompson v. Internal Revenue Service, 23 F. Supp.2d 923, 925 (N.D. In. 1998); Morelli, 920 F. Supp at 558. Consequently, Kaetz's claim is without merit and we will grant the IRS's motion to dismiss.
AND NOW, to wit, this 28th day of June 2002, it is hereby ORDERED that:
1. Plaintiff's motion to serve a supplemental pleading [8-1] is DENIED;
2. Plaintiff's motion for the imposition of Rule 11 sanctions [11-1] against Beatriz T. Saiz, Esq. is DENIED;
3. Defendant's motion to dismiss [3-1] pursuant to Rule 12(b)(6) is GRANTED;
4. Plaintiff's motions to submit interrogatories [5-1] and conduct discovery [6-1] are DENIED as moot; and
5. The Clerk of Court is directed to close this case.