Parham v. Lamar
| Decision Date | 16 April 1998 |
| Docket Number | No. 97-1986-CIV-T-17C.,97-1986-CIV-T-17C. |
| Parties | Steven G. PARHAM Plaintiff, v. Henry O. LAMAR, Beverly A. Stowell, Mike Barr, M. Partner, and J. Rykard, Defendants. |
| Court | U.S. District Court — Middle District of Florida |
Steven G. Parham, Tampa, FL, pro se.
Charles R. Wilson, U.S. Attorney's Office, M.D. of Florida, Tampa, FL, Mary Apostolakos Hervey, U.S. Dept. of Justice, Washington, DC, for Defendants.
ORDER ON DEFENDANTS' MOTION TO DISMISS
Plaintiff seeks an award of compensatory and exemplary damages against Defendants in the amount of $1,020,000.00, in their official capacity as Internal Revenue Service (I.R.S.) employees. This action arises from Defendants' seizure of Plaintiff's 1994 Nissan Sentra, which was seized subsequent to the issuance of a Levy and Notice of Seizure in order to collect his delinquent income tax payments. Plaintiff claims that the Defendants' seizure of his property violates the Fourth, Fifth, Sixth, Ninth, and Fourteenth Amendments. He has instituted a Bivens action, which allows recovery of money damages in federal court against a federal law enforcement officer who has violated the Fourth Amendment. Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). Plaintiff seeks action against Defendants both in their official and individual capacities.
Defendants now move this Court to dismiss this action on the following grounds: (1) a lack of personal jurisdiction of Defendant Stowell, a resident of the state of Georgia, (2) insufficient service of process on Defendants in their official capacity, (3) the complaint fails to assert any factual basis to establish the existence of a constitutional tort, (4) the court lacks subject matter jurisdiction in this proceeding, and (5) the United States is the proper party defendant.
The Court must view the allegations stated in the complaint in the light most favorable to the Plaintiff and must consider those allegations to be true. Quality Foods de Centro America, S.A. v. Latin American Agribusiness Development Corporation, S.A., 711 F.2d 989, 994-95 (11th Cir.1983). The Defendant must show that the Plaintiff cannot prove any set of facts that would entitle him to relief in order for the motion to be granted. Powell v. Lennon, 914 F.2d 1459, 1463 (11th Cir.1990). The Court must construe the complaint of a pro se litigant more liberally than it would that of a litigant represented by counsel. Hughes v. Rowe, 449 U.S. 5, 9, 101 S.Ct. 173, 66 L.Ed.2d 163 (1980).
Defendants argue that this action should be dismissed because this Court lacks personal jurisdiction over Defendant Stowell, a Georgia resident. There is a two-part test that is used to determine whether a court has personal jurisdiction over an individual. First, the Court determines whether the person is subject to personal jurisdiction in the state pursuant to the state's longarm statute. Fla. Stat. § 48.193. Second, the Court must determine whether the person has established sufficient minimum contacts with the state, so as not to violate the Fourteenth Amendment Due Process Clause. International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945). Plaintiff fails to present any facts in the complaint to suggest that Defendant Stowell has participated in any activity that would subject her to jurisdiction in Florida under Florida's longarm statute. Failure to find Defendant Stowell subject to jurisdiction under the longarm statute makes the inquiry into the existence of substantial minimum contacts inapposite since Plaintiff must establish that both elements are satisfied. However, there is no evidence presented to this Court to suggest that Defendant Stowell had sufficient minimum contacts within the state of Florida that would subject her to personal jurisdiction in Florida in this case.
Secondly, Defendants move this Court to dismiss this claim because Plaintiff failed to properly serve process on Defendants as agents of the federal government. Service upon an officer, agency, or corporation of the United States shall be effected by serving the United States and by: (1) delivering a copy of the summons and of the complaint to the United States attorney for the district in which the action is brought; (2) sending a copy of the summons and of the complaint by registered or certified mail to the United States Attorney General; and (3) sending a copy of the summons and complaint by registered or certified mail to the officer, agency, or corporation. Fed.R.Civ.P. 4(i). The docket sheet entries indicate that Plaintiff did serve the individual named Defendants by certified mail, but neglected to serve either the United States Attorney General or the United States Attorney for the Middle District. The rules provide that the court shall allow a reasonable time for service of process for the purpose of curing the failure to serve multiple defendants if the plaintiff has effected service on either the United States Attorney General or the United States attorney. Fed.R.Civ.P. 4(i)(3). This Court would feel compelled to permit Plaintiff to effect service if he had served either one of the officers mentioned above. However, neither the United States Attorney General nor the United States attorney has been properly served with process in this case. The Court, therefore, believes that it would be inappropriate to permit Plaintiff to serve these officials at this time.
Further, service upon an individual from whom a waiver has not been obtained and filed, other than an infant or incompetent person, may be effected in any judicial district of the United States "...pursuant to the law of the state in which the district court is located, or in which service is effected, for the service of a summons upon the defendant in an action brought in the courts of general jurisdiction of the state..." Fed. R.Civ.P. 4(e)(1). In the instant case, Plaintiff served Defendants as individuals by certified mail. Under the Florida Rules of Civil Procedure a defendant may accept service of process by mail, but acceptance of service of a complaint by mail does not thereby waive any objection to the venue or to the jurisdiction of the court over the person of the defendant. Fla. R. Civ. P. 1.070(i)(1). Therefore, even though Defendants were served as individuals by certified mail, they shall not be deemed to have waived any objection that they might have with respect to this Court's proper personal jurisdiction merely by accepting such service. Plaintiff has thus failed to sufficiently serve process on Defendants either in their official capacity, by not serving the United States Attorney General or the United States Attorney for the district, or in their individual capacity, by not serving them through a means required by Florida law.
Plaintiff seeks recovery from Defendants through the institution of a Bivens action. A Bivens action allows an individual to recover money damages against a federal law enforcement official in federal court when the official has committed a Fourth Amendment violation. However, the courts have been reticent to extend this remedy into other contexts, especially "when the design of a government program suggests that Congress has provided what it considers adequate remedial mechanisms for constitutional violations that may occur in the course of its administration." Schweiker v. Chilicky, 487 U.S. 412, 420, 108 S.Ct. 2460, 101 L.Ed.2d 370 (1988). A number of courts, including this one, have refused to extend the Bivens action remedy to tax assessment and collection cases. Rosado v. Curtis, 885 F.Supp. 1538, 1543 (M.D.Fla.1995). The Internal Revenue Code does create alternate mechanisms whereby aggrieved taxpayers can seek to have their constitutional rights vindicated. One such remedy is a civil action for unauthorized collection action. 26 U.S.C. § 7433. This section provides that a taxpayer may bring a civil action for damages against the United States if an officer or employee of the I.R.S. recklessly or intentionally disregards any provision of this title. Id. If the employee is found liable, the plaintiff is entitled to recover an amount equal to the lesser of (1) $1,000,000 or (2) the sum of actual, direct economic damages sustained by the plaintiff as a proximate result of the employee's actions plus the costs of the action. Id.
This Court believes that 26 U.S.C. § 7433 provides Plaintiff with an adequate remedial mechanism by which to challenge what he alleges to be a constitutional violation by the I.R.S. officers. This Court, therefore, believes that Plaintiff's pursuit of a Bivens action in this case is inappropriate since the Internal Revenue Code has created an alternate remedy for Plaintiff to pursue in this matter, namely a civil action for unauthorized collection action under § 7433. If Plaintiff prevails in the civil action, he will be entitled to a maximum recovery of $1,000,000.00 pursuant to the statute.
Plaintiff alleges that Defendants' seizure of his car violated Plaintiff's Fourth Amendment right against unreasonable searches and seizures. Defendants argue that Plaintiff's car was seized pursuant to a levy and notice of seizure that were issued after notice and demand for payment had been made. Defendants maintain that Plaintiff failed to establish in his complaint that their actions did not comply with the Internal Revenue Code and were not lawful in obtaining Plaintiff's outstanding payments.
For there to be Fourth Amendment violation, Plaintiff must prove that the search or seizure...
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