Wheeler v. Ceniza

• Decision Date: 15 March 2013
• Docket Number: Civil Action No. 3:12-CV-1898-L
• Parties: DWIGHT L. WHEELER, Plaintiff, v. FAITH L. CENIZA, Defendant.
• Court: U.S. District Court — Northern District of Texas

DWIGHT L. WHEELER, Plaintiff,

v.FAITH L. CENIZA, Defendant.

Civil Action No. 3:12-CV-1898-L

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS DALLAS DIVISION

Dated: March 15, 2013

MEMORANDUM OPINION AND ORDER

Before the court is Defendant's Motion to Dismiss or Motion for Summary Judgment, filed on August 17, 2012. After careful consideration of the motion, response, reply,¹ record, and applicable law, the court grants in part and denies in part Defendant's Motion to Dismiss. Specifically, the court lacks subject matter jurisdiction over Plaintiff's claims against Defendant in her official capacity brought under the Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, and Fourteenth Amendments; 28 U.S.C. § 1343(a)(3); 42 U.S.C. §§ 1981, 1983, 1985, 1986, and 1988; and Plaintiff's common law tort claim. The court also lacks subject matter jurisdiction over Plaintiff's claims brought against Defendant individually under §§ 1981 and 1983; and 28 U.S.C. § 1343(a)(3).Accordingly, the court dismisses these claims without prejudice. The court denies Defendant's Motion for Summary Judgment because it declines to consider matters outside the pleadings, and the motion is premature at this stage.

I. Factual and Procedural Background

On June 19, 2012, Dwight L. Wheeler ("Plaintiff" or "Wheeler") brought this action against Internal Revenue Service ("IRS") agent Faith L. Ceniza ("Ceniza" or "Defendant"), individually and in her official capacity, alleging "civil rights violations involving but not limited to denial of due process and abuse of process." Compl. 1. The Complaint alleges that Defendant acted under color of the law and violated his rights under the Fourth, Fifth, Sixth or Seventh, Eighth, Ninth, and Fourteenth Amendments to the United States Constitution. Id. at 2. Furthermore, the Complaint states that this court has jurisdiction over Plaintiff's claims under 42 U.S.C. §§ 1983, 1985, 1986, and 1988; 28 U.S.C. §§ 1331 and 1343(A)(3)(4); the Fourteenth Amendment; and the Civil Rights Act of 1870.² Id. at 2. In the body of the Complaint, Plaintiff also alleges that the IRS failed to properly train and supervise its employee, with respect to individual rights as protected by the Constitution and is liable for the acts committed by Defendant within the scope of her employment. Plaintiff requests compensatory damages in the amount of $350,000; punitive damages in the amount of $350,000; and court costs and attorneys fees incurred in prosecuting this action pursuant to 42 U.S.C. § 1988.

Although the Complaint is sparse in details and difficult to understand, it appears that Plaintiff is complaining about tax collection efforts taken by the IRS to collect his federal tax liabilities. According to the Complaint, on June 4, 2012, Plaintiff transferred funds to discharge a debt owed to the IRS. The next day, Plaintiff received confirmation of receipt of the transfer from the IRS. Plaintiff complains that, to this date, he has "received no valid response regarding this instrument from [the] IRS." Id. at 3. This, Plaintiff contends, is in violation of clearly established federal law, the Uniform Commercial Code, and banking laws, as these laws, according to Plaintiff, require the IRS to respond accordingly within specific time frames by either crediting his account properly, or in the case of a financial instrument with defects, noting said defects so that they can be corrected. Id. at 3-4.

Defendant moves the court to dismiss this action for lack of subject matter jurisdiction, failure to state a claim for which relief may be granted, and insufficient process or insufficient service of process. To the extent that the court considers matters outside of the pleadings, Defendant moves for summary judgment.

This court will not consider matters outside of the pleadings. Consideration of such matters unnecessarily complicates disposition of the pending motion. Defendant is instructed not to complicate and conflate matters by filing procedurally dispositive motions with those on the merits. Moreover, Defendant is reminded that a party who files a motion for summary judgment at the outset may lose her opportunity to file a second motion for summary judgment, as the Local Civil Rules of this district permit only one summary judgment motion per party unless leave is granted by the court to file a second motion for summary judgment. Local Civ. R. 56.2

II. Relevant Legal Standards

A. Rule 12(b)(1) - Subject Matter Jurisdiction

A federal court has subject matter jurisdiction over civil cases "arising under the Constitution, laws, or treaties of the United States," or over civil cases in which the amount in controversy exceeds $75,000, exclusive of interest and costs, and in which diversity of citizenship exists between the parties. 28 U.S.C. §§ 1331, 1332. Federal courts are courts of limited jurisdiction and must have statutory or constitutional power to adjudicate a claim. See Home Builders Ass'n of Miss., Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998). Absent jurisdiction conferred by statute or the Constitution, they lack the power to adjudicate claims and must dismiss an action if subject matter jurisdiction is lacking. Id.; Stockman v. Federal Election Comm'n, 138 F.3d 144, 151 (5th Cir. 1998) (citing Veldhoen v. United States Coast Guard, 35 F.3d 222, 225 (5th Cir. 1994)). "[S]ubject-matter jurisdiction cannot be created by waiver or consent." Howery v. Allstate Ins. Co., 243 F.3d 912, 919 (5th Cir. 2001). A federal court has an independent duty, at any level of the proceedings, to determine whether it properly has subject matter jurisdiction over a case. Ruhgras AG v. Marathon Oil Co., 526 U.S. 574, 583 (1999) ("[S]ubject-matter delineations must be policed by the courts on their own initiative even at the highest level."); McDonal v. Abbott Labs., 408 F.3d 177, 182 n.5 (5th Cir. 2005) (A "federal court may raise subject matter jurisdiction sua sponte.").

In considering a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction, "a court may evaluate (1) the complaint alone, (2) the complaint supplemented by undisputed facts evidenced in the record, or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts." Den Norske Stats Oljeselskap As v. HeereMac Vof, 241 F.3d 420, 424(5th Cir. 2001) (citation omitted). Thus, unlike a Rule 12(b)(6) motion to dismiss for failure to state a claim, the district court is entitled to consider disputed facts as well as undisputed facts in the record and make findings of fact related to the jurisdictional issue. Clark v. Tarrant Cnty., 798 F.2d 736, 741 (5th Cir. 1986). All factual allegations of the complaint, however, must be accepted as true. Den Norske Stats Oljeselskap As, 241 F.3d at 424.

B. Rule 12(b)(4) - Insufficient Process

"An objection under Rule 12(b)(4) concerns the form of the process rather than the manner or method of its service." 5B Charles Alan Wright and Arthur R. Miller, Federal Practice and Procedure § 1353 (3d ed. 2004). Thus, "a Rule 12(b)(4) motion is proper only to challenge noncompliance with the provisions of rule 4(b) or any other applicable provision incorporated by Rule 4(b) that deals specifically when the content of the summons." Id. Although Defendant seeks dismissal pursuant to Rule 12(b)(4), the court does not believe this rule is applicable in light of the facts presented by Defendant. Accordingly the court will address the issues regarding service pursuant to Rule 12(b)(5).

C. Rule 12(b)(5) - Insufficient Service of Process

A motion under Rule 12(b)(5) is the proper way to challenge "the mode of delivery or the lack of delivery of the summons and complaint." 5B Wright & Miller, Federal Practice and Procedure § 1353 (footnote omitted). A motion under this rule is also "the proper challenge when the wrong party is served with an otherwise proper [s]ummons and [c]omplaint." Colony Ins. Co. v. Ropers of Hattiesburg, LLC, No. 211cv3KS-MTO, 2011 WL 1226095, at *2 (S.D. Miss. Mar. 29, 2011). A court is authorized to dismiss a civil action for insufficiency of service of process. Fed. R. Civ. P. 12(b)(5); see also Kreimerman v. Casa Veerkamp, S.A. de C.V., 22 F.3d 634, 645 (5th Cir.1994) ("A district court . . . has broad discretion to dismiss an action for ineffective service of process."). Absent proper service of process, the court cannot exercise personal jurisdiction over a party named as a defendant. Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 350 (1999). "[O]nce the validity of service of process has been contested, the plaintiff bears the burden of establishing its validity." Carimi v. Royal Carribean Cruise Line, Inc., 959 F.2d 1344, 1346 (5th Cir. 1996).

D. Standard for Rule 12(b)(6) - Failure to State a Claim

To defeat a motion to dismiss filed pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, a plaintiff must plead "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007); Reliable Consultants, Inc. v. Earle, 517 F.3d 738, 742 (5th Cir. 2008); Guidry v. American Pub. Life Ins. Co., 512 F.3d 177, 180 (5th Cir. 2007). A claim meets the plausibility test "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal citations omitted). While a complaint need not contain detailed factual allegations, it must set forth "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555 (citation omitted). The "[f]actual allegations of [a complaint] must be enough to raise a right to relief above the speculative...