Hirsch v. Copenhaver, 93-CV-1013J.
| Decision Date | 29 July 1993 |
| Docket Number | No. 93-CV-1013J.,93-CV-1013J. |
| Parties | W. Dean HIRSCH, Jamie L. Hirsch, and Michael D. Hirsch, Plaintiffs, v. Tracy J. COPENHAVER; Linda Cheney, Clerk of Justice Court, in her capacity as Clerk and individually; Robert Coorough, Undersheriff and individually; Bill Brewer, Sheriff and individually; James Allison, Justice of the Peace, in his capacity as Justice of the Peace and individually; Bob G. McNeill; and Dorothy O. McNeill, individually, Defendants. |
| Court | U.S. District Court — District of Wyoming |
COPYRIGHT MATERIAL OMITTED
W. Dean Hirsch, pro se.
Jamie L. Hirsch, pro se.
Tracy J. Copenhaver, pro se.
Stuart R. Day, Williams, Porter, Day & Neville, Casper, WY, John O. Housel, Park County Atty., Cody, WY, for Linda Cheney.
Dennis M. Coll, Wyoming Atty. Gen., Cheyenne, WY, for Robert Coorough, Bill Brewer and James Allison.
Tracy J. Copenhaver, Copenhaver, Kath & Kitchen, Powell, WY, for Bob G. McNeill and Dorothy O. McNeill.
ORDER ON MOTIONS TO DISMISS
This matter came before the Court for hearing on motions to dismiss on June 8, 1993 in Casper, Wyoming. The Court, having reviewed the motions and materials filed both in support of and in opposition to the motions, having considered the arguments of counsel and the pro se plaintiffs, having reviewed the file, and being fully advised in the premises, FINDS and ORDERS as follows:
Background
Plaintiffs in this case are W. Dean Hirsch, his wife Jamie L. Hirsch, and his son, Michael D. Hirsch. Plaintiffs' amended complaint asserts claims against Sheriff Brewer and Deputy Sheriff Coorough of Park County, Wyoming; Linda Cheney, the Clerk of the Justice Court; Tracy Copenhaver, retained counsel for defendants Bob and Dorothy McNeill, purchasers of real property in Park County described as Lots 3 & 4 in Block 1 of Wood Third Addition to the City of Powell, Park County, Wyoming at a sale conducted in 1992 by the Internal Revenue Service ("IRS"); and James Allison, Park County Justice of the Peace.
The dispute arises out of a sale conducted in 1992 by the IRS of the plaintiffs' home to satisfy a judgment obtained in 1986 for back taxes. Plaintiffs argue the IRS sale of their property was not conducted properly; that the sale was not a proper judicial foreclosure; and that it constituted an unauthorized administrative seizure and sale by the IRS. Consequently, plaintiffs argue that the defendants in this action were without jurisdiction to evict plaintiffs from their home or take any other steps to obtain possession and control of the real property. It also appears that plaintiffs are attempting to challenge the extent of the interest purchased by the McNeills when they purchased by sealed bid from the IRS in August of 1992. Plaintiff Jamie L. Hirsch is asserting that her interest in the property, as a nominee of the Hidden Oak Trust, was not sold by the IRS and that she continues to have an interest in the property. Plaintiffs' son, Michael, asserts a claim arising out of the seizure of a bag containing approximately $42,000 cash, when the plaintiffs were evicted from the premises. Complicating these facts, plaintiff W. Dean Hirsch filed a Chapter 7 Bankruptcy petition on March 11, 1992. Randy Royal was appointed Trustee. The petition lists the IRS and the McNeills as creditors who have claims against the bankruptcy estate.
The Complaint, asserting a cause of action under 42 U.S.C. § 1983, alleges a conspiracy among the defendants acting under state law to deprive the plaintiffs of their property and to retaliate against them for challenging the "writ of restitution" issued by the state courts. Plaintiffs claim their constitutional rights, including unreasonable search and seizure, deprivation of property without due process, and denial of equal protection, have been violated. Plaintiffs seek compensatory and punitive damages, as well as declarations that the Justice of the Peace was without jurisdiction to hear and determine the "title dispute" between plaintiffs and the McNeills and without jurisdiction to hear the forcible entry and detainer matter premised upon an IRS deed. Plaintiffs claim that they were denied equal protection when defendants Allison and Copenhaver required Hirsches to post a $117,000 appeal bond. They seek an injunction prohibiting the defendants from exercising dominion and control over the property based on an unlawful writ of restitution, which they seek to have declared null and void; and ask for costs and attorney's fees pursuant to 42 U.S.C. § 1988.
Defendants Allison, Brewer and Coorough filed a "Suggestion in Bankruptcy, referencing the bankruptcy filing of plaintiff W. Dean Hirsch on March 11, 1993 and the appointment of Randy Royal as Chapter 7 Trustee." Defendant Copenhaver filed Motions to Substitute Real Party in Interest and to Dismiss, seeking to have the Chapter 7 Trustee substituted as real party in interest. Copenhaver argues that any claims asserted by plaintiffs in this civil proceeding belong to the Trustee as property of the bankruptcy estate. He asserts that the plaintiffs' action is an "unreasonable and baseless pleading" against him and filed solely out of their "vengeance and vendetta" against the IRS for having sold their home to McNeills. Copenhaver was retained by McNeills to evict plaintiffs from the house McNeills had purchased at the IRS sale when the McNeills were unable to obtain possession of the premises from plaintiffs. Copenhaver also asserts there is no subject matter jurisdiction in this case, as there is no federal question and there have been three previous judicial determinations finding that the McNeills were entitled to possession of the property and entitled to proceed with eviction proceedings, making this matter res judicata. Copenhaver also asserts that the plaintiffs have failed to join an indispensable party, the IRS.
Defendant Linda Cheney, the Park County Clerk of the Justice Court, echoes these arguments in her Motion to Dismiss Complaint pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim and failure to join an indispensable party. This defendant also joined in the motion to dismiss filed by defendant Copenhaver and also filed a "Suggestion in Bankruptcy," referencing the bankruptcy filing of plaintiff W. Dean Hirsch. At the hearing, counsel suggested that this matter should be stayed pending a determination by the Chapter 7 Trustee as to whether this cause of action would be pursued as property of the estate for the benefit of general creditors.
Standard of Review Pursuant to Fed.R.Civ.P. 12(b)(6)
The Tenth Circuit, in Pitts v. Turner and Boisseau Chartered, 850 F.2d 650, 652 (10th Cir.1988), cert. denied in 488 U.S. 1030, 109 S.Ct. 838, 102 L.Ed.2d 970 (1989) (quoting Shaw v. Valdez, 819 F.2d 965, 968 (10th Cir.1987), stated what the standard of review is for dismissals pursuant to Fed.R.Civ.P. 12(b)(6):
In reviewing a dismissal for failure to state a claim, we must accept as true the plaintiff's well-pleaded factual allegations and all reasonable inferences must be indulged in favor of the plaintiff. Dismissal is appropriate only if `it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.' (Citations omitted.)
In considering a motion to dismiss, a court must take the allegations of the complaint at face value and must construe them most favorably to the plaintiff. A court should not grant a motion to dismiss unless it appears beyond doubt that the plaintiff could prove no set of facts supporting the claim which would entitle plaintiff to relief. Huxall v. First State Bank, 842 F.2d 249, 250-51 (10th Cir.1988).
As the Court perceives it, the plaintiffs' fundamental position is that the Justice of the Peace exceeded his jurisdiction when he ordered restitution of the property to the McNeills in the case. The basis of this contention is that there was no notice of an administrative foreclosure as required by the Internal Revenue Code, although the IRS documents do show substantial compliance with the law regarding notice of the foreclosure of the premises. Plaintiffs argue that the Justice of the Peace had before him a title dispute, and that he was therefore without jurisdiction to resolve this question in the justice of the peace court as was done.
The difficulty with much of plaintiffs' arguments is that a number of courts have already considered the arguments they advance again in this case relating to the validity of the foreclosure sale and plaintiffs' entitlement to possession of the premises. The United States received its judgment in federal district court, in Docket No. C84-0408K, on October 29, 1986. That judgment authorized foreclosure of tax liens by the government. The property was sold August 11, 1992, to the McNeills. After Hirsches refused to vacate the premises, a notice to quit the premises was served on them on February 9, 1993. Shortly after, plaintiffs filed a quiet title action with the state district court in Park County, Civil Action No. 18256. The quiet title action was dismissed by order dated March 9, 1993, in which the state district court determined that plaintiffs' claim was not a legitimate quiet title action and that the McNeills had standing to initiate a forcible entry and detainer action in Park County. On March 11, 1993, W. Dean Hirsch also filed for bankruptcy relief, Case No. 93-1006, in the District of Wyoming. The Bankruptcy Court's order modifying stay, permitting the McNeills to take possession of the premises was appealed to the United States District Court for the District of Wyoming. The pending appeal of the order modifying stay is currently docketed in the United States District Court as 93-CV-0155B. A separate adversary proceeding has also been appealed to the United States District Court, and that pending appeal has been docketed as 93-CV-0188B. An additional item to be noted is that, at...
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