Berera v. Mesa Medical Group, PLLC
MEMORANDUM OPINION AND ORDER: IT IS ORDERED that Plaintiffs' claims are DISMISSED WITH PREJUDICE for failure to state a claim upon which relief can be granted. Signed by Judge Joseph M. Hood on January 3, 2014. (MWZ) cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
TAMMY BERERA, individually
and on behalf of all others
MESA MEDICAL GROUP, PLLC,
Civil Case No.
This matter is before the Court upon Plaintiff’s Response
[D.E. 19] to the Court’s Order to Show Cause why the Complaint
should not be dismissed for failure to state a claim upon which
relief can be granted. [D.E. 18]. The Court having reviewed the
Response, and being otherwise sufficiently advised, this matter
is now ripe for the Court’s review.
I. Procedural Background
Plaintiff Tammy Berera filed this suit in Fayette Circuit
Court on June 25, 2013, asserting her claims “on behalf of all
current and former employees of MESA and any predecessor company
[D.E. 1-1 at 5].
Berera asserted a violation of KRS
337.385, claiming Defendant did not pay the full amount of wages
and overtime compensation earned, and a claim of negligence.
[D.E. 1-1 at 6-7].
Berera then filed an amended complaint,
incorporating the original complaint in full, and adding claims
Berera filed a second amended complaint to add Katisha Kabalen
as a member of the class.
[D.E. 1-2 at 67]. Defendant filed a
Notice of Removal [D.E. 1], and Plaintiffs filed a Motion to
Remand [D.E. 10], which this Court denied. [D.E. 18].
In ruling on Plaintiffs’ Motion to Remand, the Court found
that Plaintiffs’ claims were based upon an alleged excessive
withholding of Federal Insurance Contributions Act (FICA) taxes.
[D.E. 18 at 14]. The Court further found that FICA did not
create a private cause of action and that Plaintiffs’ Complaint
should be dismissed for failure to state a claim upon which
relief can be granted [D.E. 18 at 16]. Thus, the Court ordered
Accordingly, this matter will be dismissed upon the Court’s own
II. Standard of Review
When reviewing a complaint the Court must accept as true
failure to state a claim upon which relief can be granted, the
Court “must construe the complaint in the light most favorable
undoubtedly can prove no set of facts in support of his claims
that would entitle him to relief.” In re DeLorean Motor Co., 991
F.2d 1236, 1240 (6th Cir. 1993) (citations omitted). “To survive
a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Aschcroft, 556 U.S. at 678 (citing Bell
Atlantic Corp., 550 U.S. at 570).
Plaintiffs first contend that the Complaint should not be
dismissed because the Complaint does not assert that this is a
tax refund suit and all causes of action are founded upon state
Plaintiffs to “avoid removal jurisdiction by artfully casting
Mikulski v. Centerior Energy Corp., 501 F.3d 555, 560 (6th Cir.
2007) (quoting Federated Dep’t Stores, Inc. v. Moitie, 452 U.S.
394, 397 n.2 (1981)). Thus, the Court has taken jurisdiction
over the claims only upon a finding that the Complaint asserts
artfully tried to plead their way around federal jurisdiction.
Plaintiffs’ desire for the claims to be based on state law has
no bearing on the Court’s analysis. See Brennan v. Sw. Airlines
Co., 134 F.3d 1405, 1409 (9th Cir. 1998), amended by Brennan v.
established that the IRC provides the exclusive remedy in tax
refund suits and thus preempts state-law claims that seek tax
refunds.”); Crouch v. Guardian Angel Nursing, Inc., No. 3:07-cv541, 2009 WL 3738095, at *5 (M.D. Tenn. Nov. 4, 2009) (“Those
few courts that have done so with any degree of depth have
overwhelmingly come down on the side of preemption, regardless
of whether the claims at issue are asserted directly under FICA
result of their failure to pay their share of FICA taxes.”)
Plaintiffs argue that the Court erred in finding the case
involved federal law because the Court relied only a portion of
the Complaint, rather than reading it as a whole. Specifically,
factual assertion . . . out of the Complaint and conclude that
However, the one factual assertion Plaintiffs reference, that
the class consists of “employees who have been forced to pay the
withholdings,” [D.E. 1-1 at 5], which the Court must take as
true, establishes that Plaintiffs’ claims amount to a tax refund
In their Complaint, and through arguments filed with the
Court, Plaintiffs attempt to gain class certification by stating
that all of the class members had payroll taxes excessively
withheld. Then, when asserting their claims, Plaintiffs attempt
to claim they do not know where the money went or how it was
used, simply that the employees were not paid what they were
owed, and thus, this case does not concern taxes. The Court
cannot find that this case does not concern taxes by ignoring
Plaintiffs’ statement that the suit arises because payroll taxes
were excessively withheld. Therefore, Plaintiffs’ argument that
the Complaint should be read as a whole is not persuasive.
Plaintiffs next take issue with the Court relying on the
transcript of the hearing that took place in Fayette Circuit
Court because it is outside of the pleadings. However, the Court
does not need to rely on the hearing transcript to determine
dismissal, as the four corners of Plaintiffs’ Complaint clearly
establishes that Plaintiffs wish to recover excessively withheld
payroll taxes. See [D.E. 1-1 at 5] (“[T]he employees have been
forced to pay the employer’s share of payroll taxes and other
taxes and withholdings.”).
Furthermore, the Court may consider the hearing transcript
notice. “In deciding a motion to dismiss, the Court may consider
all papers and exhibits appended to the complaint, as well as
any matters of which judicial notice may be taken.” Koli v.
Gonzales, No. 4:06-cv-54-M, 2007 WL 710130, at *1 (W.D. Ky.
March 2, 2007) (citing Hirsch v. Arthur Andersen & Co., 72 F.3d
1085, 1092 (2d Cir. 1995)); see also Eubank v. Wesseler, No. 10cv-210-DLB-JGW, 2011 WL 3652558, at *4 (E.D. Ky. Aug. 19, 2011)
(citations omitted) (“The Court may . . . take judicial notice
dispute because it can be accurately and readily determined from
sources whose accuracy cannot reasonably be questioned.” Fed. R.
dismiss under Rule 12(b)(6), the Court may judicially notice the
transcript of the hearing . . . , not for the truth of any
matters asserted therein, but rather for the fact that certain
things were said, argued, and decided in that court. Can v.
Goodrich Pump & Engine Control Sys., Inc., 711 F. Supp. 2d 241,
250 n.12 (D. Conn. 2010) (citations omitted); see also Passa v.
City of Columbus, 123 F. App’x 694, 697 (6th Cir. 2005) (finding
that courts may take judicial notice of some documents of public
therein”). Thus, the Court may consider the hearing transcript
because it is subject to judicial notice.
The Court does not rely on the transcript for the purposes
of the truth of the matter asserted by the transcript, that the
Defendant’s portion of the FICA tax. Plaintiffs have asserted in
taxes and agreed in a hearing that the amount withheld is equal
to Defendant’s obligations under FICA. Based on these facts, the
Court finds that this is a tax refund suit for which there is no
private right of action. Therefore, Plaintiffs’ claims must be
dismissed for failure to state a claim upon which relief can be
Finally, Plaintiffs argue, in the event the Court finds
dismissal is appropriate, that the pendent state law claims for
violations of KRS 337.385, negligence, and conversion should not
abeyance. Plaintiffs’ argument is flawed in that all of the
state law claims attempt to recover for the same conduct, namely
that Defendant excessively withheld payroll taxes. See [D.E. 18
at 15-16] (discussing each claim individually and finding that
each attempted to recover excessively withheld payroll taxes).
Thus, all of the claims invoke a tax refund suit for which there
is no private right of action. See, e.g., McDonald v. S. Farm
Bureau Life Ins. Co., 291 F.3d 718, 726 (11th Cir. 2002) (“[W]e
abeyance because each claim arises under federal law and is
preempted by 26 U.S.C. § 7422. Therefore, all of Plaintiffs’
claims are subject to dismissal.
Accordingly, for the foregoing reasons, IT IS ORDERED that
Plaintiffs’ claims are DISMISSED WITH PREJUDICE for failure to
state a claim upon which relief can be granted.
This the 3rd day of January, 2014.
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