Jones v. Bass
| Decision Date | 30 September 2004 |
| Docket Number | No. 04-CV-153-D.,04-CV-153-D. |
| Citation | 343 F.Supp.2d 1066 |
| Parties | Maurice Wayne JONES and Dorenda Price Jones, Plaintiff(s), v. Fred BASS, Ron Thomas, and Gerald Goulding, Defendant(s). |
| Court | U.S. District Court — District of Wyoming |
Maurice Wayne Jones, Grover, WY, pro se.
Dorenda Price Jones, Grover, WY, pro se.
Carol A. Statkus, US Attorney's Office, Cheyenne, WY, Rickey Watson, Department of Justice, Washington, DC, Ann L. Hoover, Topeka, KS, Peter Craig Silva, Williams Porter Day & Neville, Casper, WY, for Defendants.
ORDER ON DEFENDANTS' MOTIONS TO DISMISS AND PLAINTIFFS' MOTIONS FOR SUMMARY JUDGMENT
This matter comes before the Court on Defendants' Ron Thomas and Gerald Goulding's Motion to Dismiss, Defendant Fred Bass' Motion to Dismiss, and Plaintiffs' Motions for Summary Judgment, filed June 25, 2004. The Court, having reviewed the materials submitted in opposition and support, having heard oral argument, and being otherwise fully advised, FINDS and ORDERS as follows:
BACKGROUND
Plaintiffs Maurice and Dorenda Jones ("Plaintiffs") filed a civil action in Wyoming State District Court, Lincoln County, Wyoming, on March 3, 2004, asserting claims against Defendants Fred Bass, an employee of the United States Internal Revenue Service ("IRS"); Gerald Goulding, attorney for First National Bank, Afton, Wyoming ("Bank"); and Ron Thomas, Branch President of the Bank. The claims arise out of the Bank's honoring a Notice of Levy served upon First National Bank on or about March 17, 2004 by the IRS for Plaintiffs' alleged unpaid balance of tax assessment. Plaintiffs allege that the Notice of Levy is invalid and that Defendants' actions in serving, accepting, or advising others to honor the Notice of Levy were in error, harmful to Plaintiffs, and in violation of the law.
On May 24, 2004, the U.S. Attorney on behalf of Defendant Fred Bass, an employee of the federal government, filed a Notice of Removal with this Court pursuant to 28 U.S.C. § 1442(a)(1), which states:
A civil action ... commenced in a State court against any of the following may be removed by them to the district court of the United States for the district and division embracing the place wherein it is pending:
(1) The United States or any agency thereof or any officer (or any person acting under that officer) of the United States or of any agency thereof, sued in an official or individual capacity for any act under color of such office or on account of any right, title or authority claimed under any Act of Congress for the apprehension or punishment of criminals or the collection of the revenue....
28 U.S.C. § 1442(a)(1) (2004). Plaintiffs objected to the removal, claiming the U.S. District Court lacks subject matter jurisdiction to hear the case.
Four motions are currently pending in this case. Plaintiffs filed two motions for summary judgment on June 25, 2004, which lack legal substance. Defendants Thomas and Goulding filed a joint Motion to Dismiss for failure to state a claim on June 22, 2004 and Defendant Bass filed a Motion to Dismiss for lack of subject matter jurisdiction on June 25, 2004. The Court, finding Defendants' Motions to Dismiss as dispositive, dismisses Plaintiffs' Motions for Summary Judgment as moot.
Defendants Thomas and Goulding moved to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). In ruling on motions to dismiss for failure to state a claim, "All well-pleaded facts, as distinguished from conclusory allegations, must be taken as true." Ruiz v. McDonnell, 299 F.3d 1173, 1181 (10th Cir.2002) (quoting Swanson v. Bixler, 750 F.2d 810, 813 (10th Cir.1984)). Id. (citations omitted). "A Rule 12(b)(6) motion to dismiss may be granted only if it appears beyond a doubt that the plaintiff is unable to prove any set of facts entitling her to relief under her theory of recovery." Id. (citing Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)).
Defendant Bass moved to dismiss for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). The standard of review is substantially similar in considering a 12(b)(1) motion to dismiss as for considering a 12(b)(6) motion to dismiss. "Accepting the complaint's allegations as true, we consider whether the complaint, standing alone, is legally sufficient to state a claim upon which relief can be granted.." E.F.W. v. St. Stephen's Indian High School, 264 F.3d 1297, 1303 (10th Cir.2001).
Ron Thomas and Gerald Goulding moved to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). As to the claim against Gerald Goulding, Defendants interpret Plaintiffs' Complaint to allege that Mr. Goulding gave legal advice to First National Bank, thereby making him an accessory to an illegal levy against the Plaintiffs. Defendants assert that such a claim sounds in negligence. As an attorney for the Bank, Defendants argue that Mr. Goulding has no duty to the Plaintiffs. As no duty exists, a negligence action cannot be maintained. Regarding Ron Thomas, Defendants assert immunity bars any claim against him. Defendants state that as an employee of a bank that simply honored an IRS levy, Mr. Thomas qualifies for immunity under 26 U.S.C. § 6332(e) and (f). In the alternative, Mr. Thomas had no contract with the Plaintiffs such that a breach of contract action would lie, nor did he have a duty to the Plaintiffs such that a negligence action would lie. In addition, if the Plaintiffs assert a claim for conversion, one cannot lie where the property involved is a bank account from which a legitimate creditor has demanded payment. Finally, if the Complaint is construed to allege fraud, it has not been pleaded with sufficient particularity.
In opposition to Defendants' Motion to Dismiss, Plaintiffs' sole argument is that this Court has no jurisdiction over the matter. When given the opportunity to supplement its arguments, Plaintiffs add that Mr. Thomas and Mr. Goulding "failed to write a simple letter asking alleged IRS agent Bass for clarification regarding the legality and scope of the Notice of Levy." Plaintiffs' Supp. to Pending Motions, at 6.
As to Mr. Goulding, because the Plaintiffs do not explicitly outline the causes of action relied upon in their Complaint, the Defendants in their Motion to Dismiss are left to speculate. Defendants have presumed from the factual allegations against Mr. Goulding that Plaintiffs assert a claim for negligence against him for the advise given to Mr. Thomas to treat the Notice of Levy as any other levy. To maintain a claim for negligence, the Plaintiffs must demonstrate all the elements of negligence, including the legal duty owed by the defendant to the plaintiff. Brooks v. Zebre, 792 P.2d 196, 200 (Wyo.1990). Whether a legal duty exists is a question of law. Id.
It is clear under Wyoming law that an attorney owes a duty of zealous representation to his/her client. Id. In an adversarial context, a duty to the opposing party cannot be assumed by an attorney, as it would violate the primary duty of the attorney to his/her own client. Id. In other contexts, it is possible for an attorney to owe a duty to a non-client, i.e., when the non-client is a third-party beneficiary to the relationship between the attorney and client. See In re Estate of Drwenski, 83 P.3d 457 (Wyo.2004). The Wyoming Supreme Court has recently adopted a set of factors to consider in determining whether an attorney owes a duty to a non-client. Id. at 464-65. The court will consider: (1) the extent to which the transaction was intended to directly benefit the plaintiff; (2) the foreseeability of harm; (3) the degree of certainty that the plaintiff suffered injury; (4) the closeness of the connection between the defendant's conduct and the injury suffered; (5) whether expansion of liability to the non-client would place an undue burden on the legal profession; and (6) the policy of preventing future harm. Id. The "threshold question" is whether the attorney-client relationship was intended to benefit a third-party. Id. If an intent to benefit a third-party is not found, the other factors need not be considered. Id.
Upon consideration of the above factors, as a matter of law, Mr. Goulding did not owe a legal duty to the Plaintiffs. Under a Drwenski analysis, Plaintiffs in this case were not intended to be third-party beneficiaries to the attorney-client relationship between Mr. Goulding and the Bank. Thus, there is no need to consider the other Drwenski factors. In contrast, this case more closely resembles the adversarial situation in Brooks in that Mr Goulding's advise to his client, Mr. Thomas, as an agent of the Bank, was directly adverse to the interests of the Plaintiffs. He advised his client to treat the Notice of Levy like any other levy, in effect advising Mr. Thomas to surrender the funds from the Plaintiffs' account to the IRS. In such an adversarial situation, an attorney cannot have a legal duty to the opposing party, as it would "violate the primary duty" owed to the attorney's own client. Owing no duty to the Plaintiffs, Mr. Goulding cannot be held liable under a negligence theory for his legal advise.
The Complaint against Mr. Goulding also asserts that he "became a principal or an accessory engaging in fraudulent actions...." Complaint, at 12. As distinguished from well-pleaded facts, such a "conclusory allegation" need not be taken as true. Ruiz v. McDonnell, 299 F.3d at 1181. In addition, Wyoming law requires that "[i]n all averments of fraud or mistake, the circumstances...
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