Opinion
1:22-CV-00208-SPB-RAL
01-31-2023
KERRY L. SWITZER JR., Plaintiff v. FRANKLIN INVESTMENT CORP, Defendant
REPORT AND RECOMMENDATION ON DEFENDANT'S MOTION TO DISMISS IN RE: ECF NO. 24
RICHARD A. LANZILLO CHIEF UNITED STATES MAGISTRATE JUDGE
I. Recommendation
Pending before the Court is Defendant Franklin Industries' (“Franklin Industries” or “Defendant”) motion to dismiss. For the reasons stated herein, it is respectfully recommended that the motion be GRANTED and that the Amended Complaint filed by Plaintiff Kerry L Switzer Jr., (“Switzer”) be DISMISSED WITH PREJUDICE.
II. Report
A. Procedural History
Switzer initiated this lawsuit pro se on June 30, 2022. See ECF No. 1. His original complaint was docketed on August 9, 2022. ECF No. 13. Franklin Industries moved to dismiss the Complaint (ECF No. 19) and Switzer filed an Amended Complaint (ECF No. 23) in response. Franklin Industries moved to dismiss the Amended Complaint on December 8, 2022. ECF No. 24. Switzer filed a response in opposition to the Defendant's motion on January 10, 2023, and the matter is now ripe for disposition.
A. Standard of Decision
A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the legal sufficiency of the complaint. Kostv. Kozakiewicz, 1 F.3d 176,183 (3d Cir. 1993). When reviewing a motion to dismiss, the Court accepts as true all well-pleaded facts in the complaint. See Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). In deciding a motion to dismiss, the court is not opining on whether the plaintiff is likely to prevail on the merits; rather, the plaintiff must only present factual allegations sufficient “to raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007) (citing 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-36 (3d ed. 2004)). See also Ashcroft v. Iqbal, 556 U.S. 662 (2009). A complaint should only be dismissed pursuant to Rule 12 (b)(6) if it fails to allege “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570 (rejecting the traditional Rule 12 (b)(6) standard established in Conley v. Gibson, 355 U.S. 41 (1957)). In making this determination, the court must view the well-pleaded factual allegations in the complaint in a light most favorable to the plaintiff. U.S. Express Lines Ltd. v. Higgins, 281 F.3d 383, 388 (3d Cir. 2002).
While a complaint does not need detailed factual allegations to survive a motion to dismiss, a complaint must provide more than labels and conclusions. Twombly, 550 U.S. at 555. A “formulaic recitation of the elements of a cause of action will not do.” Id. (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). Moreover, a court need not accept inferences drawn by a plaintiff if they are unsupported by the facts as set forth in the complaint. See California Pub. Employee Ret. Sys. v. The Chubb Corp., 394 F.3d 126, 143 (3d Cir. 2004) (citing Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997)). Nor must the Court accept legal conclusions disguised as factual allegations. Twombly, 550 U.S. at 555. See also McTernan v. City of York, Pennsylvania, 577 F.3d 521, 531 (3d Cir. 2009) (“The tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.”).
Expounding on the Twombly/Iqbal line of cases, the Court of Appeals for the Third Circuit has articulated the following three-step approach:
First, the court must ‘tak[e] note of the elements a plaintiff must plead to state a claim.' Second, the court should identify allegations that, ‘because they are no more than conclusions, are not entitled to the assumption of truth.' Finally, ‘where there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief.'Burtch v. Milberg Factors, Inc., 662 F.3d 212, 221 (3d Cir. 2011) (quoting Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010)). This determination is “a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679.
Finally, because Switzer is proceeding pro se, the allegations of his Amended Complaint are held to “less stringent standards than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520-521 (1972). If the court can reasonably read a pro se litigant's pleadings to state a valid claim upon which relief could be granted, it should do so despite the litigant's failure to cite proper legal authority, confusion of legal theories, poor syntax and sentence construction, or unfamiliarity with pleading requirements. See Boag v. MacDougall, 454 U.S. 364 (1982); United States ex rel. Montgomery v. Bierley, 141 F.2d 552, 555 (3d Cir. 1969) (petition prepared by a prisoner may be inartfully drawn and should be read “with a measure of tolerance”). See also Switzer v. Franklin Investments Corp., 2023 WL 1072987 (W.D. Pa. Jan. 8, 2023). With these standards in mind, the Court now turns to a review of Switzer's Amended Complaint.
B. Discussion and Analysis
Switzer's verified Amended Complaint (ECF No. 23) alleges three claims against Franklin Industries. First, he brings a claim pursuant to 26 C.F.R. § 301.6721 regarding a purported “[f|ailure to file correct information returns, and provide W-2 to the Plaintiff within federal guidelines.” Next, Switzer asserts a claim under 18 U.S.C. § 1028 for “[f]raud and related activity in connection with identification documents, authentication features, and information.” And third, Switzer raises a Pennsylvania state law claim for identify theft under 18 Pa. C. S. § 4120. See ECF No. 23, p. 1. The factual allegations supporting these claims are sparse.
Switzer alleges that the Defendant Franklin Industries, through its human resources personnel, failed to provide him with a W-2 statement for fiscal year 2018. See id., ¶ 1. He claims to have inquired of the Defendant regarding his missing W-2 statement, but did not receive a reply. Id., ¶ 2. Switzer further pleads that “[a]fter filing taxes for the 2018 year, [his] tax return was held in limbo, until November 2019, upon which the Defendant Tammy Boughner of Franklin Industries sent the required W-2, along with a statement made by then attorney on the matter, McGill, Power, Bell and associates.” Id., ¶ 3. Switzer then alleges that he contacted federal and state authorities and filed a lawsuit with “the local magistrates (sic) office on the matter.” Id. ¶¶ 4-5.
Then, Switzer makes the following allegation concerning two individuals not named as defendants:
During the current time period Josh Mcfadden became head of maintenance, my references only included my immediate supervisor for electrical maintenance Edward Reiss, upon which purposely made false and negative statements were given upon reference or investigation made by possible employer (to be subpoenad (sic) as witnesses).Id., ¶ 6. Switzer seeks “punitive, comprehensive, and cumulative” damages. Id., p. 2. In its motion to dismiss, the Defendant argues that Switzer has failed to allege any facts that state any claim upon which relief may be granted. See ECF No. 24. The motion should be granted.
First, to the extent Switzer is attempting to state a claim concerning the delayed production of a W-2 form, such an attempt fails as matter of law and should be dismissed with prejudice. The only remedy relating an employer's late or untendered W-2 form is an assessment of $50.00 from the Internal Review Service under 26 U.S.C. § 6722(a). See, e.g., Worsham v. Minyard Food Stores, 2001 WL 611173, at *3 (N.D. Tex. June 5, 2001). There is no private cause of action to recover damages for a late W-2 form itself. Id. See also Williams v. Secure Resources Communications, 2011 WL 8199938, at *2 (S.D.N.Y. Sep. 26, 2011) (collecting cases). Thus, because Switzer's claim arises out of the Defendant's purported failure to furnish him with a W-2 statement, it should be dismissed as a matter of law.
Second, Switzer's purported fraud claim should be dismissed. Switzer cites 18 U.S.C. § 1028 as the basis for fraud claim against the Defendant. See ECF No. 23, p. 1. But 18 U.S.C. § 1028 is a criminal statute that does not authorize a right of action for private individuals. See, e.g., Colvin v. Tako, LLC, 2022 WL 17453612, at *1 (D. Nev. Dec. 5, 2022); Lassetter v. Brand, 2011 WL 4712188, at *2 (W.D. Wash. Oct. 4, 2011). Therefore, any claim brought by Switzer under the federal fraud statute fails as a matter of law must be dismissed.
Finally, Switzer cites 18 Pa. C.S.A. § 4120 as the basis for an identity theft claim. ECF No. 23, p. 1. Pennsylvania provides a private right of action for victims of identity theft. Kelly v. Peerstar LLC, 2020 WL 5077940, at *6 (W.D. Pa. Aug. 26, 2020) (citing 42 Pa. Cons. Stat. § 8315). A person commits identity theft if he: (1) possesses or uses, through any means, identifying information of another person; (2) without the consent of that other person; (3) to further any unlawful purpose. 18 Pa. Cons. Stat. § 4120(a). In Pennsylvania, the crime of identity theft occurs when one “possesses or uses, through any means, identifying information of another person without the consent of that other person to further any unlawful purpose.” 18 Pa. C.S.A. § 4120(a). The Pennsylvania statute which establishes the right to bring a civil action based on identity theft is 42 Pa. C.S.A. § 8315. See Gabriel v. Giant Eagle, Inc., 124 F.Supp.3d 550, 566 (W.D. Pa. 2015).
Here, Switzer's claim fails because he has not alleged any facts to support that the Defendant unlawfully possessed his identifying information; nor could he since he was a former employee of Franklin Industries. See, e.g, Jones v. Manpower, Inc., 2014 WL 3908190 (M.D. Pa. Aug. 11, 2014) (granting motion to dismiss state law identify theft claim where plaintiffs former employer lawfully possess his identifying information). “Absent a showing that Defendant[] stole his information and used it for an unlawful purpose, there is no merit to a state law claim of identity theft.” Gabriel, 124 F.Supp.3d at 566 (citing Eagle v. Morgan, 2013 WL 943350, at *9 (E.D. Pa. Mar. 12, 2013)). Therefore, this claim should also be dismissed.
III. Conclusion
It is respectfully recommended that Defendant Franklin Industries' motion to dismiss (ECF No. 24) be granted. Because Switzer's claims fail as a matter of law, they should dismissed with prejudice as any attempt to amend would be futile. See, e.g., Ransome v. Longstreth, 2022 WL 17672653, at *6 (W.D. Pa. Nov. 14, 2022), report and recommendation adopted, 2022 WL 17668803 (W.D. Pa. Dec. 13, 2022) (dismissing with prejudice where any attempt at further amendment would be futile as a matter of law).
IV. Notice Regarding Objections
In accordance with the Federal Magistrate Judge's Act, 28 U.S.C. § 636(b)(1)(B) and (C), and Rule 72.D.2 of the Local Rules of Court, the parties are allowed fourteen (14) days from the date of service of this Report and Recommendation to file written objections thereto. Any party opposing such objections shall have fourteen (14) days from the date of service of objections to respond thereto. Failure to file timely objections will constitute a waiver of any appellate rights.