Moore v. General Motors Pension Plans

• Decision Date: 29 February 1996
• Docket Number: No. 95-3133,95-3133
• Parties: -5835, 96-2 USTC P 50,539 Donald E. MOORE, Plaintiff-Appellant, v. GENERAL MOTORS PENSION PLANS, General Motors Corporation, National Bank of Detroit, (N.B.D. BANK NA), et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 848

91 F.3d 848

78 A.F.T.R.2d 96-5835, 96-2 USTC P 50,539

Donald E. MOORE, Plaintiff-Appellant, v. GENERAL MOTORS PENSION PLANS, General Motors Corporation National Bank of Detroit, (N.B.D. BANK NA), et al., Defendants-Appellees.

No. 95-3133.

United States Court of Appeals, Seventh Circuit.

Submitted Feb. 29, 1996. ^*

Decided March 8, 1996.

Publication Ordered July 29, 1996. ^**

Donald E. Moore, Markleville, IN (submitted on briefs), pro se.

Roderick Gillium, General Motors Corporation, Detroit, MI, for General Motors Pension Plans.

Daniel G. Galant, General Motors Corporation, Detroit, MI, for General Motors Corporation.

Steven L. Yount, NBD National Bank, Indianapolis, IN, for National Bank of Detroit, Diane L. Lingenfelter, Charles Miline.

Roderick Gillium, General Motors Corporation, Detroit, MI, Steven L. Yount, NBD National Bank, Indianapolis, IN, for Does 1-10.

Before POSNER, Chief Judge, and MANION and KANNE, Circuit Judges.

PER CURIAM.

The IRS claims that Donald Moore owes federal income taxes; Moore denies that he does. After the IRS failed to collect the taxes directly from Moore, it served a "Notice of Levy on Wages, Salary, and Other Income" on National Bank of Detroit (NBD), Moore's Bank. As it believed it was required to under 26 U.S.C. § 6332, NBD turned over to the IRS $12,540 from Moore's account.

Moore believed the Notice of Levy was invalid and that NBD therefore wrongfully gave his deposits to the IRS. He demanded that NBD restore the funds, but NBD refused. Moore then filed this suit for conversion and negligence, seeking damages totaling over $300,000. He named as defendants NBD, Diane Lingenfelter (an NBD employee) and Charles Milne (an NBD officer). He also named as defendants General Motors Corporation (GM) and General Motors Pension Plans (GMPP). Moore draws a pension from GMPP which is deposited in NBD, but it is unclear from the record on what basis Moore seeks to hold GM or GMPP liable. Finally, Moore named as defendants "Does 1-10," described as "those defendants, individuals, corporations, associates, accessories and otherwise, specifically unknown to the plaintiff, yet to be named, who have acted beyond the scope of their authority and will be revealed under discovery as the facts are discovered."

In order to substantiate his claim that the Notice of Levy was invalid, Moore served subpoenas duces tecum upon two IRS employees. Upon the IRS's motion, the district court quashed the subpoenas. The court denied Moore's motion for reconsideration, and then granted summary judgment in favor of the defendants, holding that they were immune from suit under 26 U.S.C. § 6332(e), which immunizes from liability any party who--in response to a levy--turns over to the IRS funds or property belonging to a delinquent taxpayer. This appeal followed.

Before reaching the merits of Moore's appeal, however, we must address the subject matter jurisdiction of the district court. Although Moore asserted various statutory bases for federal jurisdiction, he names as defendants only private parties and his cause of action arises solely under state law. Thus, the only basis for the district court's jurisdiction--and apparently the one relied upon below-was diversity jurisdiction, 28 U.S.C. § 1332. Moore is a resident of Indiana. Lingenfelter and Milne are residents of Michigan. Moore's complaint alleged that GM had "[a] place of domicile in Flint, Michigan with [a] subsidiary in Anderson, Indiana," and that NBD had a "domicile in Detroit, Michigan with branches in Indiana." These allegations are deficient--a corporation does not have a domicile; rather, its citizenship for diversity purposes is determined by its place of incorporation and its principal place of business. Nonetheless, the defendants' appellate brief states that GM and GMPP are incorporated in Delaware and have principal places of business in Michigan, and that NBD is both incorporated in and has a principal place of business in Michigan. Thus, it appears that there was complete diversity so far as the named parties were concerned.

The problem with Moore's suit is that he also named as defendants "Does 1-10." Because diversity jurisdiction must be proved by the plaintiff rather than assumed as a default, Pollution Control Industries of America v. Van Gundy, 21 F.3d 152, 155 (7th Cir.1994), this court cannot presume that Does 1-10 are diverse with respect to the plaintiff. This is not a case, however, where the plaintiff knows that there are specific additional defendants he wishes to sue, but is simply uncertain as to their names. Rather, Moore appears to have included "Does 1-10" in the complaint in the event that during discovery he identified any additional defendants he wished to add to the suit. The district court terminated discovery and dismissed Moore's suit before he could add any additional defendants. Because, as we hold below, the district court correctly dismissed this suit before Moore named any additional parties, we think it proper to treat "Does 1-10" as mere nominal parties, whose presence does not affect diversity jurisdiction. United States Fire Ins. Co. v. Charter Financial Group, 851 F.2d 957, 958 n. 3 (7th Cir. 1988). Hence, we conclude that the district court had diversity jurisdiction to hear this suit.

Turning now to the merits of Moore's appeal, Moore appears to allege two bases for error in the district court. We will first address Moore's second claim on appeal: that the Notice of Levy served upon NBD was invalid for a variety of reasons, and therefore the immunity conferred by 26 U.S.C. § 6332(e) does not apply to the defendants. Moore argues that the defendants had a duty both to recognize these alleged deficiencies in the levy and to oppose the IRS on his behalf. Because the defendants failed to challenge the validity of the levy Moore concludes, the immunity conferred by § 6332(e)...