Vidurek et al v. Pollen et al
OPINION & ORDER re: 18 MOTION to Dismiss the Complaint filed by N Cassadine, Charles P Rettig, Bobbi S Martin, Susan Lamastro, Frank J Chan, J Melendez. For the foregoing reasons, the Federal Defendants' motion to dismiss the co mplaint is GRANTED and the claims against them are DISMISSED with prejudice. Plaintiffs federal claims against the CBE Defendants are DISMISSED without prejudice, although the dismissal will be converted to one with prejudice if no motion to amen d is made by September 28, 2021, and their state claims against the CBE Defendants are dismissed without prejudice. The Clerk of Court is respectfully directed to amend the caption as set forth in footnote 14, terminate the pending motion, (Doc. 1 8), and send a copy of this Opinion and Order to Plaintiffs. SO ORDERED. Steve Douglas, Mike Frost and Randall Kamm added. Margareth De Wit, Alessandro Donetti and Pim Pollen terminated. (Motions due by 9/28/2021.) (Signed by Judge Cathy Seibel on 9/7/2021) (mml) Transmission to Docket Assistant Clerk for processing. Modified on 9/7/2021 (mml).
Case 7:20-cv-06714-CS Document 32 Filed 09/07/21 Page 1 of 31
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
JOHN VIDUREK, KIMBERLY VIDUREK, and
- against PIM POLLEN, MARGARETH DE WIT,
ALESSANDRO DONETTI, N. CASSADINE, J.
MELENDEZ, SUSAN LAMASTRO, JEANETTE
WILLET, FRANK J. CHAN, CHARLES P.
RETTIG, BOBBI S. MARTIN, THE CBE GROUP,
INC., STEVE DOUGLAS, MIKE FROST and
OPINION & ORDER
No. 20-CV-6714 (CS)
Hyde Park, New York
Pro Se Plaintiffs
Brandon H. Cowart
Assistant United States Attorney
Southern District of New York
New York, New York
Counsel for Federal Defendants
Plaintiffs John Vidurek, Kimberly Vidurek, and James Vidurek (collectively,
“Plaintiffs”), proceeding pro se, bring this action against Defendants Charles P. Rettig,
Commissioner of the Internal Revenue Service (“IRS”), and IRS employees Natalie Cassadine,
Jonnie Melendez, Susan Lamastro, Jeanette Willet, Frank Chan, and Bobbi S. Martin
(collectively, the “Federal Defendants”), as well as The CBE Group, Inc. and three of its
Case 7:20-cv-06714-CS Document 32 Filed 09/07/21 Page 2 of 31
executives, Steve Douglas, Mike Frost, and Randall Kamm (collectively, the “CBE
The Federal Defendants removed this action from New York Supreme Court, Dutchess
County, on August 20, 2020, under 28 U.S.C. § 1442(a)(1). (Doc. 1.) Before the Court is the
Federal Defendants’ motion to dismiss under Rules 12(b)(1), 12(b)(5) and 12(b)(6). (Doc. 18.)
For the following reasons, the Federal Defendants’ motion is GRANTED and the claims
against them are dismissed, and Plaintiffs’ claims against the CBE Defendants are dismissed sua
Plaintiffs 2 filed this lawsuit in response to the IRS’s efforts to assess and collect taxes.
The following facts are drawn from Plaintiffs’ July 21, 2020 “Action at Law” and documents
attached thereto, (IC), 3 Plaintiffs’ November 19, 2020 “Action at Law,” (Doc. 15 (“Amended
Complaint” or “AC”)), 4 and Plaintiffs’ opposition to the motion to dismiss, (Doc. 23 (“Ps’
Opp.”)). See Washington v. Westchester Cnty. Dep’t of Corr., No. 13-CV-5322, 2015 WL
408941, at *1 n.1 (S.D.N.Y. Jan. 30, 2015) (court may give pro se plaintiff the benefit of
considering facts in original complaint even if they have not been repeated in amended
complaint); Braxton v. Nichols, No. 08-CV-8568, 2010 WL 1010001, at *1 (S.D.N.Y. Mar. 18,
Defendants Pim Pollen, Margareth de Wit and Alessandro Donetti have been dropped.
See note 14 below.
John and Kimberly are married; James is their son. (Doc. 1-1 (“Initial Complaint” or
“IC”) at 9.)
Because the Initial Complaint is not consecutively paginated, all citations to that
document will refer to the page numbers generated by the Court’s Electronic Case Filing (ECF)
System, stamped at the top of each page.
The Amended Complaint is dated November 16, 2020, but was not filed until
November 19, 2020.
Case 7:20-cv-06714-CS Document 32 Filed 09/07/21 Page 3 of 31
2010) (“[A]llegations made in a pro se plaintiff’s memorandum of law, where they are consistent
with those in the complaint, may also be considered on a motion to dismiss.”). 5 I accept as true
the facts, although not the conclusions, in those documents. 6
This case arises, primarily, from a dispute between Plaintiffs and the IRS regarding the
Plaintiffs’ tax liability for tax years 2014, 2015, and 2016. Plaintiffs assert that the IRS’s
position is “uncertified[,] unsupported[, and] preposterous.” (AC at 5.) In short, Plaintiffs
contest their assessed tax liabilities for those years on the grounds that James did not hold a job
until 2019 (and thus did not work from 2014-2016); 7 Kimberly has never held a job and “has
been disabled for more than ten years”; and “John took an early retirement and had no income
from 2014 through 2016.” (Id.)
While Plaintiffs assert that this dispute is only about tax years 2014, 2015, and 2016, their
narrative starts with their dispute regarding John’s tax year 2009 liability. 8 In short, the IRS had
The Court will send to Plaintiffs copies of all unpublished decisions cited in this
Opinion and Order.
Even considering the Initial Complaint, Amended Complaint, and Plaintiff’s opposition
brief together, it took considerable effort to understand the nature of Plaintiffs’ claims and the
facts underlying them.
Plaintiffs attached to the Initial Complaint what appears to be James’s tax year 2019
Form 1040 return, which reflects taxable income in the amount of $10,810. (IC at 85.) In their
Amended Complaint, Plaintiffs assert that James earned $10,800 in 2019 and $18,700 in 2020
working as a cashier at a grocery store. (AC at 5.)
In 2014, Judge Vincent Briccetti of this Court dismissed as meritless claims – similar to
those in this litigation – brought by Plaintiffs John and Kimberly Vidurek against the IRS for
unauthorized tax collection regarding their taxes for 2008 and 2009. See Vidurek v. Miller, No.
13-CV-4476, 2014 WL 901462 (S.D.N.Y. Feb. 27, 2014) (Vidurek I). In 2018, Judge Briccetti
dismissed “nearly identical” claims by Plaintiffs John and Kimberly Vidurek and, noting their
history of filing “duplicative and meritless” claims, enjoined them from filing further cases
related to their 2008 and 2009 tax liabilities absent court permission. Vidurek v. Koskinen, No.
17-CV-9064, 2018 WL 3597644, at *13-14 (S.D.N.Y. July 25, 2018) (Vidurek II), aff’d, 789 F.
Case 7:20-cv-06714-CS Document 32 Filed 09/07/21 Page 4 of 31
placed a $124,762.43 lien on John’s property for unpaid taxes for tax year 2009, which the IRS
later released. (IC at 27.) On September 2, 2013, the IRS sent a new bill for tax year 2009 for
only $80.64. (Id. at 28.) Plaintiffs assert that this $80 bill, which John has disputed, has
escalated to the current amounts due. (Id. at 9.) This assertion is belied by the notices Plaintiffs
attached as exhibits to the Initial Complaint, which reflect that the $80.64 is for tax year 2009,
and the other disputed amounts – which form the actual bases for this dispute – are for tax years
2014, 2015, and 2016. (Id. at 14-24, 28-29, 39-48.) 9
According to Plaintiffs, since 2014 “ro[gu]e agents” have sent Plaintiffs “numerous IRS
form letters,” claiming “absurd amounts” in tax liabilities. (Id. at 9.) Based on the
correspondence attached to the Initial Complaint, it appears that on October 30, 2018, each of the
three plaintiffs wrote in response to correspondence from IRS employee Defendant Jeanette
Willet dated October 16, 2018, which apparently included a roughly sixty-page examination
report. (Id. at 35, 37-38.) 10 The October 30 letters from the Plaintiffs disputed the assessment.
On June 19, 2019, the IRS sent a letter, signed by Defendant Susan Lamastro, informing
James Vidurek that the information he had submitted to the IRS did not justify a change to his
App’x 889, 895 (2d Cir. 2019) (“[Plaintiffs’] extensive litigation history meant that a filing
injunction was the appropriate means of protecting the court and other parties from further
harassment and expense.”). John Vidurek has filed several other cases in this district that have
been dismissed for administrative reasons. See Vidurek v. Krajick, No. 15-CV-2175 (S.D.N.Y.)
(dismissed for plaintiff’s failure to pay filing fee or complete request to proceed in forma
pauperis); Vidurek v. Koskinen, No. 15-CV-2188 (S.D.N.Y.) (same); Vidurek v. IRS, No. 17-CV7971 (S.D.N.Y.) (dismissed as duplicative of Case No. 17-CV-9064 and at plaintiff’s request).
Were this lawsuit actually about the $80 from 2009, it would be barred as to John and
Kimberly Vidurek by the filing injunction entered in Vidurek II, 2018 WL 3597644, at *13-14,
as there is no indication that those Plaintiffs obtained court permission to file the instant case.
Plaintiffs’ letters, but not the October 16 IRS correspondence and the report(s) to
which the letters refer, are attached as exhibits to the Initial Complaint.
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assessed liability for tax years 2014, 2015, and 2016. (Id. at 32-33.) The letter set out the
process for James to challenge the determination further, notifying him that he could dispute the
IRS’s findings by filing a petition with the Tax Court, but that if he failed to timely do so, the
IRS would close the case and send him a bill “as required by law.” (Id.) 11 On June 27, 2019,
James responded that certain enclosures referenced in the IRS letter were not included and asked
the IRS to send a “certified Proof of Claim Affidavit Form 4490 . . . filed in the Federal District
Court” so he could “understand and defend against your claim properly.” (Id. at 31.) There is no
evidence that James or any other Plaintiff sought administrative relief through the IRS or in Tax
In October 2019, the IRS sent John Vidurek a “Notice of intent to seize (levy) your
property or rights to property” in order to collect $81,259.24 owed for the 2014 tax year, (id. at
39), $96,267.30 owed for the 2015 tax year, (id. at 41), and $70,251.58 owed for the 2016 tax
year, (id. at 43). The letters warned that the IRS might seize John’s property within 30 days if he
did not call or make the payment. Kimberly Vidurek and James Vidurek also received notices
around the same time regarding the IRS’s assessment of their 2014, 2015, and 2016 tax
liability.12 This assessment was the result of an audit of each of the three Plaintiffs and included
significant interest and penalties for failure to pay and failure to file. (See id. at 15, 17, 40, 42,
55 (referencing audit of John Vidurek); id. at 20-21, 45, 52 (referencing audit of Kimberly
Vidurek); id. at 24, 48, 54 (referencing audit of James Vidurek).)
It is unclear whether the IRS sent similar correspondence to each Plaintiff.
Notices sent to Kimberly around this time stated that she owed $81,415.22 for the 2014
tax year, (IC at 19), $96,451.67 for the 2015 tax year, (id. at 22), and $68,652.18 for the 2016 tax
year, (id. at 23). Notices sent to James stated that he owed identical amounts. (Id. at 51, 53, 56.)
Case 7:20-cv-06714-CS Document 32 Filed 09/07/21 Page 6 of 31
In response to these notices, Plaintiffs sent a letter to the IRS on November 30, 2019
asserting that they “had no clue” what the IRS was talking about, stating that they had “never”
submitted tax forms for 2014-2016, and demanding that the IRS send copies of “‘Certified Proof
of Claim Affidavit Form 4490 Rev. 2-2005’ that is to be filed in the Federal District Court by
law.” (Id. at 34.) In what appears to be the same letter, Plaintiffs stated, “[W]e are in the US
Supreme Court concerning a lawsuit against IRS agents therefore you should not be
communicating to us,” 13 and closed by asking whether the IRS was “triple-dipping here on
fraudulent billings[.]” (Id. at 36.)
On December 16, 2019, both James and Kimberly Vidurek were notified of the IRS’s
intent to levy their property for their unpaid 2014, 2015, and 2016 taxes. (Id. at 59-66.) These
notices were sent separately to James and Kimberly but reflect identical amounts due as of
December 16, 2019: $81,806.47 for tax year 2014, (id. at 62, 66), $97,339.70 for tax year 2015,
(id. at 61, 65), and $69,303.23 for tax year 2016, (id. at 60, 64). On December 26, 2019, John
also received a form notice from the IRS, signed by Defendant Frank J. Chan, informing him that
if he did not pay his outstanding balance for tax years 2014, 2015, and 2016 (in the amounts of
$82,443.77, $98,944.10, and $72,263.34, respectively) he would be subject to potential
enforcement action, including seizure of wages or property. (Id. at 68-71.)
In response to these notices, on January 18 and 22, 2020, Plaintiffs each sent separate but
substantively similar letters to the IRS asserting that the assessed balances owed were erroneous,
directing the IRS to fill out Form 4490 “and attest to the proof of claim,” further directing the
IRS to fill out Form 56 “which is necessary for seizure,” and stating that once they received
It is not clear to what Supreme Court case Plaintiffs referred; a search of the Supreme
Court docket revealed no cases in which any Plaintiff here is or was involved.
Case 7:20-cv-06714-CS Document 32 Filed 09/07/21 Page 7 of 31
“these affidavits” they intended to “investigate the claims and send the necessary corrections to
your records to end this matter.” (Id. at 59, 63, 67.)
The IRS responded to James on February 25, 2020, in what appears to be a form letter
signed by Defendant Bobbi S. Martin, notifying him that the IRS had received his
correspondence regarding his liability for tax year 2014 and intended to look into the matter
further. (Id. at 49-50.) On March 30, 2020, the IRS sent James notice that his overdue taxes had
been assigned to a private collection agency, CBE Group, Inc., (id. at 81-84), and on April 10,
2020, The CBE Group, Inc. sent James a collection letter regarding his outstanding $255,096.09
balance owed to the IRS – $83,227.18 in assessed tax, interest, and penalties for tax year 2014;
$100,082.90 in assessed tax, interest, and penalties for tax year 2015; $71,786.01 in assessed tax,
interest, and penalties for tax year 2016, (id. at 86-87).
In April 2020, Plaintiffs sent the Federal Defendants, “IRS Inc.,” and Pim Pollen,
Margareth de Wit, and Alessandro Donetti 14 a “Notice and Demand,” issued by their self-
Plaintiffs’ “Notice and Demand,” as well as the July 21, 2020 “Action at Law,” (IC),
named individuals who Plaintiffs claimed are officers of an entity known as “CBE Group” – Pim
Pollen, Margareth de Wit, and Alessandro Donetti, (see IC at 3, 7). These individuals were
included in the captions of Plaintiffs’ “Affidavit[s] of Default” dated September 10, 2020, (Docs.
7, 9), September 18, 2020, (Doc. 10), and October 13, 2020, (Doc. 11.) Plaintiffs’ October 31,
2020 “Action at Law” – which the Court construed as a motion for reconsideration and remand –
changed the caption for the first time to omit Pollen, de Wit, and Donetti, and added as
defendants, for the first time, the CBE Defendants. (Doc. 12.) Plaintiffs’ subsequent filings
have named the CBE Defendants, and omitted mention of Pollen, de Wit, and Donetti. (See
AC.) In their March 3, 2021 Answer, the CBE Defendants explain that “Plaintiffs’ Complaint
incorrectly and defectively named individuals Pim Pollen, Margareth De Wit, and Alessandro
Donetti of CBE Group, which is unrelated and in no way affiliated with The CBE Group, Inc.”
(Doc. 26 at 1.) The CBE Defendants state that they were never served with the Amended
Complaint, but filed an answer nonetheless “to avoid any prospect of default.” (Id.) The Clerk
of Court is respectfully directed to terminate Pollen, de Wit and Donetti as Defendants, and to
add Steve Douglas, Mike Frost and Randall Kamm as Defendants.
Case 7:20-cv-06714-CS Document 32 Filed 09/07/21 Page 8 of 31
proclaimed “Court of Record.” (Id. at 7.) The “Notice and Demand” was “served” by mail. (Id.
Plaintiffs’ “Notice and Demand” states that the IRS must provide “proof of claim and
fiduciary authority” and file an IRS “form 4490” in order to issue valid assessments. (IC at 8-9;
AC at 11.) It further alleges that the IRS “terroriz[ed] John’s wife and son” by serving Plaintiffs
with “fictitious” notices that demanded “preposterous amounts” in federal taxes, and asserts that
Defendants violated several federal criminal statutes: the Racketeer Influenced and Corrupt
Organizations Act (“RICO”) (18 U.S.C. §§ 1961-1968), seditious conspiracy (18 U.S.C. § 2384),
conspiracy against rights (18 U.S.C. § 241), deprivation of rights under color of law (18 U.S.C. §
242), making false statements (18 U.S.C. § 1001), and mail fraud (18 U.S.C. § 1341). (IC at 7-9,
12-13.) Plaintiffs assert that the “Notice of Lien” filed by the IRS against Plaintiffs’ property
was a counterfeit security under 18 U.S.C. § 513(a). (Id. at 13, 96-98.) Plaintiffs also allege
constitutional claims for due process violations pursuant to 42 U.S.C. § 1983 and for conspiracy
to violate civil rights pursuant to 42 U.S.C. §§ 1985 and 1986. (Id. at 13.) Finally, Plaintiffs
appear to bring state-law claims for usury, fraud, conspiracy, and “Barratry,” “Maintenance,”
and “Champerty.” (Id. at 12.)
On July 21, 2020, Plaintiffs initiated this action in New York Supreme Court, Dutchess
County, by filing a Summons and “Action at Law,” which incorporated their “Notice and
Demand” and named the same Defendants who were named in the Notice and Demand. (IC at 3;
see note 14 above.) Plaintiffs claim that Defendants “acquiesced” and “agreed to the monetary
restitution and damages” set out in the “Notice and Demand” by failing to respond to that
document. (IC at 4; AC at 4.) Plaintiffs assert that, instead of responding to their “Notice and
Demand,” the IRS “continued in their assault against the plaintiffs” by unlawfully seizing $813
Case 7:20-cv-06714-CS Document 32 Filed 09/07/21 Page 9 of 31
from James Vidurek’s 2019 tax refund. (IC at 4.) Plaintiffs’ Initial Complaint seeks
reimbursement of their “seized monies,” court fees, and time spent on legal research, as well as
damages of $3,000 from each Defendant for alleged constitutional due process and privacy
violations, and as compensation for “[t]errorizing” plaintiffs by causing stress. (Id. at 4-5.) 15
On August 20, 2020, the Federal Defendants timely removed to this Court. (Doc. 1.)
Upon removal, the Federal Defendants failed to respond to the complaint within seven days of
removal as required by Rule 81(c)(2)(C) of the Federal Rules of Civil Procedure, instead filing
their pre-motion letter on September 11, 2020, and requesting that the Court excuse the untimely
submission. (Doc. 4.) Plaintiffs filed “Affidavit[s] of Default” in response to the Government’s
late submission, (Docs. 7, 9, 10), and the Court ruled on the record at a conference on October 7,
2020, that default judgments were not appropriate given the circumstances, (see Minute Entry
dated Oct. 7, 2020). 16 Plaintiffs subsequently submitted another “Action at Law,” which the
Court deemed a motion to remand and a motion for reconsideration, and denied. (Doc. 12.) 17
Plaintiffs seem to demand this $3000 to be paid in “face value Morgan Silver Dollars,”
which they allege were at the time worth $22.99 apiece, so their demand for $3000 in Morgan
Silver Dollars appears to seek $68,970. (IC at 5.)
Rule 55 of the Federal Rules of Civil Procedure grants the Court discretion whether to
enter a default or grant a default judgment, and in deciding whether to do so the Court considers
“(1) whether the defendant’s default was willful; (2) whether defendant has a meritorious
defense to plaintiff’s claims; and (3) the level of prejudice the non-defaulting party would suffer
as a result of the denial of the motion for default judgment.” SG Equip. Fin. USA Corp. v.
Nikitin, No. 09-CV-7167, 2010 WL 743762, at *1 (S.D.N.Y. Mar. 2, 2010) (cleaned up).
On November 9, 2020, Plaintiffs also filed an “Affidavit of Default” against the CBE
Defendants, alleging that Plaintiffs had served defendants by mail on September 18, 2020. (Doc.
13.) In response to this filing, the Court advised Plaintiffs that “[a]ny party seeking a default
judgment shall follow the procedure set forth in my Individual Practices. In this case that shall
include authority as to why service by mail should be regarded as acceptable under the Federal
Rules of Civil Procedure.” (Doc. 14.) Plaintiffs made no further application.
Case 7:20-cv-06714-CS Document 32 Filed 09/07/21 Page 10 of 31
At the October 7, 2020 conference, the Court granted Plaintiffs leave to amend their
complaint. 18 (Minute Entry dated Oct. 7, 2020.) In response, Plaintiffs filed their Amended
Complaint (styled as an “Action at Law”) on November 19, 2020. (See AC.)
The Amended Complaint clarifies Plaintiffs’ Section 1985 claim as one for intimidation
of jurors under 42 U.S.C. § 1985(2). (AC at 6.) Plaintiffs argue that the IRS has “target[ed]”
Plaintiffs because Plaintiff John Vidurek serves “on a Grand Jury investigating the IRS and other
agencies.” (Id.) Plaintiffs also include numerous allegations that describe the distinction
between courts of law and equity and how Congress and the Supreme Court have acted
impermissibly by “[c]ombining [l]aw and equity.” (Id. at 7-10.) Plaintiffs assert that the “IRS
has been unlawfully granted an extreme amount of power and operates with total
unaccountability.” (Id. at 10.)
On December 19, 2020, the Federal Defendants moved to dismiss, (Doc. 18), arguing that
sovereign immunity bars Plaintiffs’ claims against Federal Defendants in their official capacities,
Plaintiffs never properly served the Federal Defendants, and Plaintiffs have failed to state any
claim on which relief can be granted, (Doc. 19 (“Ds’ Mem.”)). Plaintiffs submitted another
“Action at Law,” which the Court construes as their opposition brief, 19 on January 21, 2021,
The Court advised Plaintiffs that they were not permitted to bring claims related to
their 2008 and 2009 tax liabilities – claims that Judge Briccetti dismissed and ultimately enjoined
in previous lawsuits, see Vidurek I, 2014 WL 901462; Vidurek II, 2018 WL 3597644, at *33 –
and that they needed to clarify what legal obligations they believed Defendants had violated.
To the extent Plaintiffs’ opposition brief raises new claims, including claims regarding
“fraud on the court” allegedly committed by this Court and counsel for the Federal Defendants in
connections with Defendants’ alleged default, such claims are improperly pleaded and will not
be addressed in this opinion. See Fed. R. Civ. P. 8(a); Bernstein v. City of N.Y., No. 06-CV-895,
2007 WL 1573910, at *10 (S.D.N.Y. May 24, 2007) (finding in pro se case that “new claims not
specifically asserted in the complaint may not be considered by courts when deciding a motion to
dismiss”) (cleaned up); Vlad-Berindan v. MTA N.Y.C. Transit, No. 14-CV-675, 2014 WL
6982929, at *6 (S.D.N.Y. Dec. 10, 2014) (“Where a [pro se] plaintiff’s motion papers assert
Case 7:20-cv-06714-CS Document 32 Filed 09/07/21 Page 11 of 31
(Ps’ Opp.), and the Federal Defendants submitted their reply memorandum on February 1, 2021,
Motion to Dismiss for Lack of Subject Matter Jurisdiction
Under Federal Rule of Civil Procedure 12(b)(1), a district court may properly dismiss an
action for lack of subject matter jurisdiction “if the court lacks the statutory or constitutional
power to adjudicate it.” Cortlandt St. Recovery Corp. v. Hellas Telecomms., S.A.R.L., 790 F.3d
411, 416-17 (2d Cir. 2015) (cleaned up). A claim of sovereign immunity is a challenge to a
court’s subject matter jurisdiction. See Peker v. Steglich, No. 06-CV-6910, 2007 WL 683796, at
*1 (S.D.N.Y. Mar. 5, 2007), aff’d, 324 F. App’x 38 (2d Cir. 2009) (summary order). “A plaintiff
asserting subject matter jurisdiction has the burden of proving by a preponderance of the
evidence that it exists.” Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). In
determining whether subject matter jurisdiction exists, the district court “must take all facts
alleged in the complaint as true and draw all reasonable inferences in favor of plaintiff, but
jurisdiction must be shown affirmatively, and that showing is not made by drawing from the
pleadings inferences favorable to the party asserting it.” Morrison v. Nat’l Austl. Bank Ltd., 547
F.3d 167, 170 (2d Cir. 2008) (cleaned up), aff’d, 561 U.S. 247 (2010). The Court may also “rely
on evidence outside the complaint” when deciding a Rule 12(b)(1) motion. Cortlandt St.
Recovery Corp., 790 F.3d at 417.
When a party moves to dismiss both for lack of subject matter jurisdiction and on other
grounds such as failure to state a claim upon which relief can be granted, the Court must address
entirely new claims that do not arise out of the facts alleged in the complaint, the court need not
consider them.”). Further, any such claims are frivolous. (See note 16 above.)
Case 7:20-cv-06714-CS Document 32 Filed 09/07/21 Page 12 of 31
the issue of subject matter jurisdiction first. See Rhulen Agency, Inc. v. Alabama Ins. Guar.
Ass’n, 896 F.2d 674, 678 (2d Cir. 1990).
Motion to Dismiss for Insufficient Service of Process
Pursuant to Federal Rule of Civil Procedure 12(b)(5), a defendant may move to dismiss a
case for “insufficient service of process.” Fed. R. Civ. P. 12(b)(5). “When a defendant raises a
Rule 12(b)(5) challenge to the sufficiency of service of process, the plaintiff bears the burden of
proving its adequacy.” Mende v. Milestone Tech., Inc., 269 F. Supp. 2d 246, 251 (S.D.N.Y.
2003) (cleaned up).
Motion to Dismiss for Failure to State a Claim
“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.’” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim
has facial plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Id. “While a
complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual
allegations, a plaintiff’s obligation to provide the grounds of his entitlement to relief requires
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 (cleaned up). While Federal Rule of Civil Procedure 8
“marks a notable and generous departure from the hypertechnical, code-pleading regime of a
prior era, . . . it does not unlock the doors of discovery for a plaintiff armed with nothing more
than conclusions.” Iqbal, 556 U.S. at 678-79.
In considering whether a complaint states a claim upon which relief can be granted, the
court “begin[s] by identifying pleadings that, because they are no more than conclusions, are not
Case 7:20-cv-06714-CS Document 32 Filed 09/07/21 Page 13 of 31
entitled to the assumption of truth,” and then determines whether the remaining well-pleaded
factual allegations, accepted as true, “plausibly give rise to an entitlement to relief.” Id. at 679.
Deciding whether a complaint states a plausible claim for relief is “a context-specific task that
requires the reviewing court to draw on its judicial experience and common sense.” Id.
“[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of
misconduct, the complaint has alleged – but it has not ‘shown’ – ‘that the pleader is entitled to
relief.’” Id. (cleaned up) (quoting Fed. R. Civ. P. 8(a)(2)).
When deciding a motion to dismiss, a court is entitled to consider:
(1) facts alleged in the complaint and documents attached to it or incorporated in it
by reference, (2) documents integral to the complaint and relied upon in it, even if
not attached or incorporated by reference, (3) documents or information contained
in defendant’s motion papers if plaintiff has knowledge or possession of the
material and relied on it in framing the complaint . . . , and (5) facts of which judicial
notice may properly be taken under Rule 201 of the Federal Rules of Evidence.
Weiss v. Incorporated Village of Sag Harbor, 762 F. Supp. 2d 560, 567 (E.D.N.Y. 2011)
Pro Se Plaintiffs
Complaints by pro se plaintiffs are to be examined with “special solicitude,” interpreted
“to raise the strongest arguments that they suggest,” Shibeshi v. City of N.Y., 475 F. App’x 807,
808 (2d Cir. 2012) (summary order) (cleaned up), and “held to less stringent standards than
formal pleadings drafted by lawyers,” Hughes v. Rowe, 449 U.S. 5, 9 (1980) (per curiam)
(cleaned up). Nevertheless, “threadbare recitals of the elements of a cause of action, supported
by mere conclusory statements, do not suffice,” and district courts “cannot invent factual
allegations” that the plaintiff has not pleaded. Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir.
2010) (cleaned up).
Case 7:20-cv-06714-CS Document 32 Filed 09/07/21 Page 14 of 31
The Court has original jurisdiction over Plaintiffs’ Constitutional and federal statutory
claims under 28 U.S.C. § 1331. See Bankers’ Tr. Co. v. Tex. & P. Ry. Co., 241 U.S. 295, 305
(1916) (“Under the Constitution Congress undoubtedly possesses power to invest the subordinate
Federal courts with original jurisdiction of all suits at law or in equity arising under the
Constitution, laws, or treaties of the United States.”). It has supplemental jurisdiction over
Plaintiffs’ state-law claims under 28 U.S.C. § 1367. See United Mine Workers of Am. v. Gibbs,
383 U.S. 715, 725 (1966) (“Pendent jurisdiction, in the sense of judicial power, exists whenever
there is a claim ‘arising under (the) Constitution, the Laws of the United States, and Treaties
made, or which shall be made, under their Authority * * *,’ U.S. Const., Art. III, § 2, and the
relationship between that claim and the state claim permits the conclusion that the entire action
before the court comprises but one constitutional ‘case.’”) (alterations in original); Artis v.
District of Columbia, 138 S. Ct. 594, 597-98 (2018) (noting that “[t]he Supplemental Jurisdiction
statute, 28 U.S.C. § 1367, enables federal district courts to entertain claims not otherwise within
their adjudicatory authority when those claims are so related to claims within federal-court
competence that they form part of the same case or controversy” and that Section 1367 “codifies
the court-developed pendent and ancillary jurisdiction doctrines under the label ‘supplemental
jurisdiction’”) (cleaned up). Further, even if there were no federal claims, the Court would have
jurisdiction under the federal-officer removal statute, 28 U.S.C. § 1442(a)(1), because – as will
be discussed below – a federal question is raised by the Federal Defendants’ defense. See, e.g.,
Maguire v. A.C. & S., Inc., 73 F. Supp. 3d 323, 327 (S.D.N.Y. 2014).
Case 7:20-cv-06714-CS Document 32 Filed 09/07/21 Page 15 of 31
Motion to Dismiss for Lack of Subject Matter Jurisdiction
The Federal Defendants argue that sovereign immunity bars all of Plaintiffs’ claims
against the Federal Defendants in their official capacities and that no waiver of that immunity
applies. (See Ds’ Mem. at 9-12.)
“It is, of course, ‘axiomatic’ under the principle of sovereign immunity ‘that the United
States may not be sued without its consent and that the existence of consent is a prerequisite for
jurisdiction.’” Adeleke v. United States, 355 F.3d 144, 150 (2d Cir. 2004) (quoting United States
v. Mitchell, 463 U.S. 206, 212 (1983)). Accordingly, in a suit against the United States, “a
waiver of sovereign immunity with respect to the claim asserted is a prerequisite to subject
matter jurisdiction.” Up State Fed. Credit Union v. Walker, 198 F.3d 372, 374 (2d Cir. 1999)
(per curiam). “Because an action against a federal agency or federal officers in their official
capacities is essentially a suit against the United States, such suits are . . . barred under the
doctrine of sovereign immunity, unless such immunity is waived.” Robinson v. Overseas Mil.
Sales Corp., 21 F.3d 502, 510 (2d Cir. 1994); see Mitchell, 463 U.S. at 212. “Absent an
‘unequivocally expressed’ statutory waiver, the United States, its agencies, and its employees
(when functioning in their official capacities) are immune from suit based on the principle of
sovereign immunity.” County of Suffolk v. Sebelius, 605 F.3d 135, 140 (2d Cir. 2010) (quoting
Dep’t of the Army v. Blue Fox, Inc., 525 U.S. 255, 260-61 (1999)).
To survive a motion to dismiss under Rule 12(b)(1), Plaintiffs bear the burden of showing
that Congress waived sovereign immunity with respect to their claims. Makarova, 201 F.3d at
113. Any ambiguity regarding the government’s consent to be sued is “construed strictly in
favor of the sovereign.” United States v. Nordic Vill., Inc., 503 U.S. 30, 33-34 (1992) (cleaned
up); see Sebelius, 605 F.3d at 140.
Case 7:20-cv-06714-CS Document 32 Filed 09/07/21 Page 16 of 31
The Internal Revenue Code
Plaintiffs have not shown that their claims against the individual Federal Defendants,
which exclusively relate to tax assessment and collection, fall within any applicable waiver of
sovereign immunity within the Internal Revenue Code. See Perry v. Wright, No. 12-CV-721,
2013 WL 950921, at *4 (S.D.N.Y. Mar. 8, 2013) (summarizing provisions that allow taxpayers
to file suit in federal court and requirements for waiver of sovereign immunity for each). While
Sections 6213, 7422, and 7433 of the Internal Revenue Code provide sovereign-immunity
waivers in certain contexts, none is applicable here. Id.
First, under Section 6213 of the Internal Revenue Code, a taxpayer may appeal a
deficiency determination to the Tax Court, but only the Court of Appeals has jurisdiction to
review Tax Court decisions. 26 U.S.C. §§ 6213(a), 7482. Plaintiffs do not claim to have filed
either a Tax Court case or such an appeal. There is no provision for challenging tax assessments
via a state-court lawsuit.
Second, Section 7422 of the Internal Revenue Code permits a taxpayer to pay a penalty
and then sue in district court for a refund, provided the taxpayer has first filed an administrative
claim for a refund. 26 U.S.C. § 7422(a); Roberts v. Internal Revenue Serv., 468 F. Supp. 2d 644,
649-50 (S.D.N.Y. 2006). This section in inapplicable as Plaintiffs have refused to pay the
assessed taxes for tax years 2014, 2015, or 2016. (See, e.g., IC at 34.)
Third, Section 7433(a) of the Internal Revenue Code waives sovereign immunity where,
“in connection with any collection of Federal tax with respect to a taxpayer, any officer or
employee of the Internal Revenue Service recklessly or intentionally, or by reason of negligence,
disregards any provision of this title, or any regulation promulgated under this title.” 26 U.S.C. §
7433(a). But such a claim requires a plaintiff to exhaust the administrative remedies available
Case 7:20-cv-06714-CS Document 32 Filed 09/07/21 Page 17 of 31
within the IRS before an action. See 26 U.S.C. § 7433(d)(1); Vidurek II, 789 F. App’x 889, 893
(2d Cir. 2019). Plaintiffs do not claim to have exhausted their administrative remedies, and the
exhibits to Plaintiffs’ pleadings suggest that they have not done so, at least with regard to
James’s liability. In June 2019, the IRS wrote to James, advising him of his right to challenge
his assessment in Tax Court, but the record reflects that James’s response was to request to see a
“Proof of Claim” before he could “understand and defend against” the IRS’s assessment. (IC at
31.) That Plaintiffs have not exhausted their administrative remedies is confirmed by the
undisputed affidavit of James J. Doane, Sr., IRS Revenue Officer Advisor, stating that IRS
records show that Plaintiffs have not filed any administrative claims for wrongful collection
activity. (See Doc. 20.)
Thus, Plaintiffs have not shown an applicable waiver of sovereign immunity under the
Internal Revenue Code. See Perry, 2013 WL 950921, at *4-5 (“Plaintiff pleads no facts about
exhausting her administrative remedies. Therefore, Plaintiff’s claim does not satisfy the
requirements of the waiver of sovereign immunity in section 7433.”) (cleaned up).
The Federal Tort Claims Act (“FTCA”)
To the extent Plaintiffs assert claims under the FTCA, the government’s waiver of
sovereign immunity under that statute is not applicable to “[a]ny claim arising in respect of the
assessment or collection of any tax.” 28 U.S.C. § 2680(c); see Aetna Cas. & Sur. Co. v. United
States, 71 F.3d 475, 477 (2d Cir. 1995) (affirming dismissal of tax-related tort claim on basis of
sovereign immunity and 28 U.S.C. § 2680(c)); see also Vidurek I, 2014 WL 901462, at *5;
Vidurek II, 2018 WL 3597644, at *7. Thus, any tax-related claims under the FTCA are barred
by sovereign immunity.
Case 7:20-cv-06714-CS Document 32 Filed 09/07/21 Page 18 of 31
The Administrative Procedure Act (“APA”)
The APA likewise does not supply a waiver applicable to Plaintiffs’ claims. It provides
that “[a] person suffering legal wrong because of agency action, or adversely affected . . . by
agency action . . . is entitled to judicial review thereof,” 5 U.S.C. § 702, but agency action is only
reviewable under the APA when “no other adequate remedy in a court” exists, id. § 704. Here,
other adequate remedies were plainly available to Plaintiffs. For example, the Plaintiffs could
have requested a hearing challenging Plaintiffs’ underlying tax liability under 26 U.S.C. §
6330(b), (c)(2)(B), which carries a right to appeal adverse determinations to the United States
Tax Court, 26 U.S.C. § 6330(d), and then the Court of Appeals, 26 U.S.C. § 7482. Because such
a procedure was available to Plaintiffs, the APA does not provide a waiver of sovereign
immunity with respect to their claims. See Perry, 2013 WL 950921, at *5; Vidurek I, 2014 WL
901462, at *5; Vidurek II, 2018 WL 3597644, at *7.
Thus, Plaintiffs’ claims against the Federal Defendants in their official capacities are
dismissed on grounds of sovereign immunity.
Insufficient Service of Process
The Federal Defendants argue that they were never properly served under Rule 4. “To
serve an employee of the United States sued in an individual capacity for a cause of action
arising from the employee’s duties performed for the United States, ‘a party must serve the
United States and also serve the officer or employee under Rule 4(e), (f), or (g).’” Vidurek II,
2018 WL 3597644, at *8 (quoting Fed. R. Civ. P. 4(i)(3)). 20 Plaintiffs have not demonstrated
Rules 4(f) and 4(g) are inapplicable here because they refer to service on individuals in
foreign countries, or on minors or incompetent persons, respectively.
Case 7:20-cv-06714-CS Document 32 Filed 09/07/21 Page 19 of 31
that they have served the United States as required under Fed. R. Civ. P. 4(i)(1). Nor have they
shown that they have properly served the individual Federal Defendants.
Rule 4(e)(2) provides that a summons is properly served where it is delivered in person;
delivered to the individual’s dwelling and left with someone of suitable age and discretion;
delivered to an authorized agent; or served in accordance with state law in the state where the
district court is located or where service is made. Fed. R. Civ. P. 4(e). Plaintiffs’ certificate of
service shows that they attempted service only “by mailing a true copy of the attached papers,
enclosed and properly sealed in a postpaid envelope, which [was] deposited in an official
depository under the exclusive care and custody of the United States Postal Services within the
State of New York.” (IC at 104.) The documents were mailed to P.O. Boxes and IRS business
addresses. (Id.) This is insufficient under Rule 4(e)(2).
The alternative to Rule 4(e)(2) provides that service can be made by following state law
in the state where the district court is located or where service is made. Fed. R. Civ. P. 4(e)(1).
Plaintiffs attempted service upon the Federal Defendants in New York, Utah, Pennsylvania,
California, and Washington, D.C., (see IC at 104), but failed to follow the relevant local laws
governing service. See N.Y. C.P.L.R. 308, 312-a(a) (McKinney 2021) (allowing service by mail
only if summons is also (1) delivered in person “within the state to a person of suitable age and
discretion at [defendant’s] actual place of business, dwelling place or usual place of abode”;
(2) accompanied by “two copies of a statement of service by mail and acknowledgement of
receipt”; or, (3) where other methods not possible with due diligence, affixed to door); Utah R.
Civ. P. 4(d)(2) (service by mail permissible only if defendant signs a document indicating
receipt); Cal. Civ. Proc. Code §§ 415.20, 415.30 (West 2021) (service by mail within California
must be by prepaid first-class mail or air mail with notice and acknowledgment of service, or
Case 7:20-cv-06714-CS Document 32 Filed 09/07/21 Page 20 of 31
must be accompanied by leaving a copy at defendant’s usual residence, place of business, or
mailing address); Pa. R. Civ. P. 400, 402 (service within the Commonwealth must be by hand
delivery); D.C. Super. Ct. R. Civ. P. 4(c)(4), (5) (service by mail must be by registered or
certified mail with return receipt requested, or by first-class mail with notice and
acknowledgment of service); see also Vidurek II, 2018 WL 3597644, at *8-9 (concluding that
plaintiffs’ similar efforts to serve defendants were insufficient under federal, New York and Utah
The Court declines to grant leave for Plaintiffs to cure these errors in service of process.
Absent a “colorable excuse for neglect,” a district court may dismiss an action for lack of proper
service. See Vidurek II, 789 F. App’x at 893. Particularly in light of the notice Plaintiffs have
had regarding proper service in prior cases before this Court, see Vidurek II, 2018 WL 3597644,
at *8-9, and in this case, (see Doc. 14), Plaintiffs have no such excuse. Accordingly, the Court
lacks personal jurisdiction over the individual Federal Defendants, and the claims against them in
their individual capacities must be dismissed.
Failure to State a Claim
Plaintiffs’ federal claims against the Federal Defendants also fail because they do not
state claims upon which relief can be granted.
The Court construes Plaintiffs’ Section 1983 claims against the Federal Defendants as
Bivens claims. See Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S.
388 (1971); see also Daloia v. Rose, 849 F.2d 74, 75 (2d Cir. 1988) (per curiam) (construing
Section 1983 claim by pro se plaintiff as Bivens claim against federal defendants); Vidurek I,
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2014 WL 901462, at *7 n.12 (same); accord United States v. Acosta, 502 F.3d 54, 60 (2d Cir.
2007) (“Section 1983, of course, does not apply to allegedly unlawful acts of federal officers.”).
Under Bivens, “alleged victims of constitutional violations by federal officials may
recover damages despite the absence of any statute specifically conferring such a cause of
action.” Robinson, 21 F.3d at 510. The Supreme Court has constricted the doctrine to limit
recovery to cases involving unlawful arrest and search, workplace sex discrimination, and failure
to provide adequate medical care to an individual in federal prison. Hernandez v. Mesa, 140 S.
Ct. 735, 741 (2020). Expansion of the Bivens remedy beyond these categories is a “disfavored
judicial activity,” and the Supreme Court has “for almost 40 years . . . rebuffed requests to add to
the claims allowed under Bivens.” Id. at 742-43 (cleaned up); see Ziglar v. Abbasi, 137 S. Ct.
1843, 1857 (2017). Courts that are asked to expand Bivens must look at (1) whether “the case is
different in a meaningful way from previous Bivens cases decided by th[e Supreme] Court”; and
(2) whether there are “any special factors” that “counsel hesitation” in extending Bivens,
including “sound reasons to think Congress might doubt the efficacy or necessity of a damages
remedy.” Ziglar, 137 S. Ct. at 1858-60.
The context and defendants at issue here clearly differ in a meaningful way from the
cases in which the Supreme Court has endorsed Bivens actions. See id. at 1860 (enumerating the
three Bivens claims previously approved by the Supreme Court: “a claim against FBI agents for
handcuffing a man in his own home without a warrant; a claim against a Congressman for firing
his female secretary; and a claim against prison officials for failure to treat an inmate’s asthma”).
Moreover, there are sound reasons to think that Congress “might doubt the efficacy or
necessity of a damages remedy.” Id. at 1858. As the Second Circuit has observed, “it would be
difficult to conceive of a more comprehensive statutory scheme, or one that has received more
Case 7:20-cv-06714-CS Document 32 Filed 09/07/21 Page 22 of 31
intense scrutiny from Congress, than the Internal Revenue Code.” Hudson Valley Black Press v.
Internal Revenue Serv., 409 F.3d 106, 113 (2d Cir. 2005) (cleaned up); see Canada v. United
States, 950 F.3d 299, 310-11 (5th Cir. 2020) (citing “(1) the risk of disruptive intrusion by the
courts into the executive tax collection efforts; (2) the alternative remedies available; and (3)
Congress’ repeated failure to enact a damages remedy” as factors counseling against extending
Bivens to the tax-collection context). “Because of the complex remedial scheme that Congress
has created, and the plain indication that the failure of Congress to provide a remedy for injuries
arising from tax assessment was not inadvertent, every circuit that has considered the
appropriateness of a Bivens remedy in the taxation context has uniformly declined to permit
one.” Hudson Valley Black Press, 409 F.3d at 113 (collecting cases). Thus, “a Bivens action is
not available against IRS officials to challenge tax collection and assessment.” Perry, 2013 WL
950921, at *8.
Plaintiffs allege violations of several federal criminal statutes, including 18 U.S.C. §§
1961-68 (RICO); 18 U.S.C. § 2384 (seditious conspiracy); 18 U.S.C. § 241 (conspiracy against
rights); 18 U.S.C. § 242 (deprivation of rights under color of law); 18 U.S.C. § 1001 (making
false statements); 18 U.S.C. § 1341 (mail fraud); and 18 U.S.C. § 513 (counterfeit securities).
As a general matter, “crimes are prosecuted by the government, not by private parties.” Hill v.
Didio, 191 F. App’x 13, 14-15 (2d Cir. 2006) (summary order). Where Congress has not
explicitly provided for a private right of action under a criminal statute, the Supreme Court has
rarely implied one. Chrysler Corp. v. Brown, 441 U.S. 281, 316 (1979). Therefore, with the
exception of RICO (addressed below), Plaintiffs cannot bring claims under the criminal statutes
they cite because these statutes do not provide for private rights of action. See, e.g., Ojeda v.
Case 7:20-cv-06714-CS Document 32 Filed 09/07/21 Page 23 of 31
Mendez, No. 20-CV-3910, 2021 WL 66265, at *3 (E.D.N.Y. Jan. 7, 2021) (no private right of
action for seditious conspiracy); Bender v. Gen. Servs. Admin., No. 05-CV-6459, 2006 WL
988241, at *1 (S.D.N.Y. Apr. 14, 2006) (no private right of action for conspiracy against civil
rights, deprivation of civil rights under color of law, or false statements); Caron v. TD
Ameritrade, No. 19-CV-9015, 2020 WL 7027593, at *3 (S.D.N.Y. Nov. 30, 2020) (no private
right of action under 18 U.S.C § 1001); Wright v. Waterside Plaza LLC, No. 07-CV-9303, 2008
WL 872281, at *2 (S.D.N.Y. Apr. 2, 2008) (no private right of action for mail fraud); In Re Lau,
684 F. App’x 235, 236-37 (3d Cir. 2017) (per curiam) (no private right of action for forged
Nor have Plaintiffs provided authority supporting any implied private rights of action
under these statutes, and the Court is aware of none. See Zahl v. Kosovsky, No. 08-CV-8308,
2011 WL 779784, at *10 (S.D.N.Y. Mar. 3, 2011) (“[I]n determining whether a criminal statute
implies a private right of action ‘the “dispositive question” is whether Congress intended to
create a private right of action,’ and courts ‘are to be “especially reluctant” to imply a private
right of action where the statute explicitly provides a different remedy.’”) (quoting Alaji
Salahuddin v. Alaji, 232 F.3d 305, 308 (2d Cir. 2000)); Daniel v. Safir, 135 F. Supp. 2d 367, 376
(E.D.N.Y. 2001) (“[U]nless specifically provided for, federal criminal statutes rarely create
private rights of action.”). The Court declines to infer such rights.
In contrast with the criminal statutes discussed above, Congress has created a private
right of action under RICO. See 18 U.S.C. § 1964(c). Nevertheless, Plaintiffs have not plausibly
pleaded a civil RICO claim. RICO provides:
It shall be unlawful for any person employed by or associated with any enterprise
engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or
Case 7:20-cv-06714-CS Document 32 Filed 09/07/21 Page 24 of 31
participate, directly or indirectly, in the conduct of such enterprise’s affairs through a
pattern of racketeering activity or collection of unlawful debt.
18 U.S.C. § 1962(c). Thus, to state a RICO claim under Section 1962(c), a plaintiff must plead
“(1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity.” Sedima v.
Imrex Co., 473 U.S. 479, 496 (1985) (cleaned up).
“A RICO enterprise may be a lawful entity or an association-in-fact.” Kalimantano
GmbH v. Motion in Time, Inc., 939 F. Supp. 2d 392, 405 (S.D.N.Y. 2013). As in Plaintiffs’ past
litigation against various IRS agents and officers of financial institutions, see Vidurek I, 2014
WL 901462, at *7; Vidurek II, 2018 WL 3597644, at *10, Plaintiffs have failed to state a claim
under RICO because they have not plausibly alleged an enterprise, let alone that any Defendant
conducted the affairs of that enterprise through a pattern of racketeering.
Plaintiffs do not identify any enterprise, but they appear to allege an “association-in-fact”
enterprise consisting of the various named defendants. To establish such an enterprise, Plaintiffs
must show that “the individuals . . . share a common purpose to engage in a particular fraudulent
course of conduct and work together to achieve such purposes” and “explain each participant’s
role in the alleged course of fraudulent or illegal conduct” to show the enterprise members
“functioned as a unit.” First Cap. Asset Mgmt. v. Satinwood, Inc., 385 F.3d 159, 174-75 (2d Cir.
2004) (cleaned up).
Here, the complaint lacks specific allegations about the roles of the Federal Defendants in
the allegedly fraudulent tax assessment and subsequent efforts to collect. Plaintiffs’ RICO
allegations state simply that a series of named and unnamed IRS employees who sent letters and
notices to Plaintiffs regarding their tax liability – the majority of which laid out the
administrative steps Plaintiffs could take to challenge the liabilities – “remained silent” in
response to Plaintiffs’ affidavits and “escalated the case to the next intimidating step.” (IC 9-10.)
Case 7:20-cv-06714-CS Document 32 Filed 09/07/21 Page 25 of 31
The only allegations regarding the CBE Defendants’ involvement state are similarly conclusory,
referring to the IRS’s March 30, 2019 letter “informing James that the fraudulent absurd debt is
being unlawfully transferred from one private collection agency (IRS, Inc.) to another,” (id. at
10-11), and stating that the IRS has passed “unlawful debt” to CBE “to pick up the Maintenance
of the original unlawful act of bribery (pay us or we will destroy your life),” (id. at 12) (emphasis
Plaintiffs’ “conclusory naming” of a list of entities and individuals does not plausibly
allege an enterprise. First Cap. Asset Mgmt., 385 F.3d at 175 (cleaned up); see Vidurek I, 2014
WL 901462, at *7; Vidurek II, 2018 WL 3597644, at *11. Moreover, Plaintiffs specify no acts
of racketeering other than mail fraud, compare IC at 9-13, with 18 U.S.C. § 1961(1), and have
made no effort to plead facts meeting the elements of that crime or to explain how any Defendant
might be responsible for it. Accordingly, Plaintiffs’ substantive RICO claim is dismissed.
To the extent Plaintiffs seek to state a claim for conspiracy to violate RICO, they fail.
Where a plaintiff has failed to state a substantive RICO claim, any conspiracy claim based on the
same facts necessarily fails as well. First Cap. Asset Mgmt., 385 F.3d at 182. Plaintiffs’ RICO
conspiracy claim is therefore dismissed.
Conspiracy Under 42 U.S.C. §§ 1985 and 1986
Plaintiffs claim that Defendants are liable for intimidating a juror in violation of Section
1985(2), which provides a cause of action where two or more parties have conspired to
“influence the verdict, presentment, or indictment of any grand or petit juror” in “any court of the
United States.” 42 U.S.C. § 1985(2). “[C]ourt of the United States” refers exclusively to federal
courts. See 28 U.S.C. § 451; see also McAndrew v. Lockheed Martin Corp., 206 F.3d 1031,
1035 n.2 (11th Cir. 2000) (“[T]he phrase ‘court of the United States’ in § 1985(2) refers only to
Case 7:20-cv-06714-CS Document 32 Filed 09/07/21 Page 26 of 31
Article III courts and certain federal courts created by act of Congress, but not to state courts.”).
Plaintiffs claim that “John is serving on a Grand Jury investigating the IRS and other agencies
and therefore John and now his family have become targets.” (AC at 6.) Plaintiffs’ pleadings
suggest that this “grand jury” is the “Unified United States Common Law Grand Jury,” (IC at
90-101), an organization that is unaffiliated with any federal (or even state) court. See Decision
and Order, Grand Jury, Sovereigns of the Court v. U.S. Congress, No. 16-CV-1490 (N.D.N.Y.
June 14, 2017), ECF No. 27 (“Plaintiff describes itself as an organization composed of thousands
of members across the United States.”). Because Plaintiffs have not alleged John is serving as a
grand or petit juror in a “court of the United States,” Section 1985(2) is inapplicable.
Because a Section 1986 claim is “contingent on a valid § 1985 claim,” all claims brought
under Section 1986 also fail. Graham v. Henderson, 89 F.3d 75, 82 (2d Cir. 1996). Therefore
Plaintiffs have failed to state a claim under Sections 1985 and 1986.
To the extent that Plaintiffs purport to assert additional claims not discussed above, the
Court finds the pleadings to be not only inadequate to survive Rule 12(b)(6) but also frivolous.
Among other, similar, grievances, Plaintiffs incorporate into their Initial Complaint claims that
the IRS has no constitutional authority to “enforce a slave tax and imprison sovereign People”
and that the “income tax is a direct tax forbidden under the Constitution.” (IC at 89, 99.)
Plaintiffs assert that they are not subject to the IRS’s assessment and collection of Plaintiffs’
outstanding federal income tax liabilities because the IRS has “no enforcement authority” over
Plaintiffs; that the Internal Revenue Code applies to “[c]ommercial [a]ctivities on fuels, alcohol,
tobacco products, and firearms, not a tax on salaries,” (id. at 91-95); that the “tax code” is
“unconstitutional” and “fraudulent,” (id. at 13); and that “[t]he IRS has been unlawfully granted
Case 7:20-cv-06714-CS Document 32 Filed 09/07/21 Page 27 of 31
an extreme amount of power and operates with total unaccountability,” (AC at 10). Plaintiffs’
theories have been specifically, repeatedly, and emphatically rejected by courts. See, e.g., United
States v. Schiff, 876 F.2d 272, 275 (2d Cir. 1989) (“[T]he average citizen knows that the payment
of income taxes is legally required.”); Connor v. C.I.R., 770 F.2d 17, 20 (2d Cir. 1985) (“Wages
are income. The argument that they are not has been rejected so frequently that the very raising
of it justifies the imposition of sanctions.”) (cleaned up).
“Complaints which ramble, which needlessly speculate, accuse, and condemn, and which
contain circuitous diatribes” do not comport with basic pleading requirements and “must be
dismissed.” Prezzi v. Berzak, 57 F.R.D. 149, 151 (S.D.N.Y. 1972); accord Prezzi v. Schelter,
469 F.2d 691, 692 (2d Cir. 1972) (per curiam) (affirming dismissal of complaint that “contained
a labyrinthian prolixity of unrelated and vituperative charges that defied comprehension”).
Thus, to the extent Plaintiffs intended to bring other claims against the Federal
Defendants, they are dismissed.
Plaintiffs’ Claims Against CBE Group
The Court has the inherent authority to dismiss frivolous claims sua sponte, even when
the plaintiff is not proceeding in forma pauperis. See Fitzgerald v. First E. Seventh St. Tenants
Corp., 221 F.3d 362, 363-64 (2d Cir. 2000) (per curiam) (“[D]istrict courts may dismiss a
frivolous complaint sua sponte even when the plaintiff has paid the required filing fee.”).
A claim is “frivolous when either: (1) the factual contentions are clearly baseless, such as
when allegations are the product of delusion or fantasy; or (2) the claim is based on an
indisputably meritless legal theory.” Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437
(2d Cir. 1998) (cleaned up). Even construing Plaintiffs’ pro se pleadings liberally, Harris v.
Mills, 572 F.3d 66, 72 (2d Cir. 2009), and interpreting them to raise the “strongest [claims] that
Case 7:20-cv-06714-CS Document 32 Filed 09/07/21 Page 28 of 31
they suggest,” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474-75 (2d Cir. 2006) (per
curiam), Plaintiffs’ federal claims against the CBE Defendants are factually baseless and without
legal merit. Plaintiffs’ allegation regarding The CBE Group, Inc. is that it sent a letter to James
saying it had been retained to collect his debt to the IRS. There are no facts rendering it
plausible that that action amounted to racketeering, a violation of constitutional rights, or
interference with a federal juror. There are no factual allegations at all regarding any of the
individual CBE Defendants. Accordingly, the Court dismisses Plaintiffs’ federal claims against
the CBE Defendants sua sponte. The Court recognizes that “[s]ua sponte dismissal of a pro se
complaint . . . is a draconian device, which is warranted only when the complaint lacks an
arguable basis either in law or in fact,” Benitez v. Wolff, 907 F.2d 1293, 1295 (2d Cir. 1990)
(cleaned up), but that is the case here.
To the extent there remain state law claims against the CBE Defendants, the Court
declines to exercise supplemental jurisdiction and dismisses those claims without prejudice. The
“traditional ‘values of judicial economy, convenience, fairness, and comity’” weigh in favor of
declining to exercise supplemental jurisdiction where all federal law claims are eliminated before
trial. Kolari v. New York-Presbyterian Hosp., 455 F.3d 118, 122 (2d Cir. 2006) (quoting
Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 (1988)). Having determined that all of the
claims over which this Court has original jurisdiction should be dismissed, and having
considered the factors set forth in Cohill, the Court declines to exercise supplemental jurisdiction
over any of Plaintiffs’ potential remaining state law causes of action. See id. (citing 28 U.S.C. §
1367(c)(3)). Accordingly, Plaintiffs’ state law claims are dismissed without prejudice.
Case 7:20-cv-06714-CS Document 32 Filed 09/07/21 Page 29 of 31
Leave to Amend
Leave to amend a complaint should be freely given “when justice so requires.” Fed. R.
Civ. P. 15(a)(2). “[I]t is within the sound discretion of the district court to grant or deny leave to
amend.” Kim v. Kimm, 884 F.3d 98, 105 (2d Cir. 2018) (cleaned up). “Leave to amend, though
liberally granted, may properly be denied” for “‘repeated failure to cure deficiencies by
amendments previously allowed’” or “‘futility of amendment,’” among other reasons. Ruotolo v.
City of N.Y., 514 F.3d 184, 191 (2d Cir. 2008) (quoting Foman v. Davis, 371 U.S. 178, 182
(1962)). “Amendment is futile when the problem with a plaintiff’s causes of action is
substantive and better pleading will not cure it.” Trombetta v. Novocin, 414 F. Supp. 3d 625,
634 (S.D.N.Y. 2019) (cleaned up).
Plaintiffs have already had the chance to amend their complaint, after having the benefit
of the Federal Defendants’ pre-motion letter and the Court’s comments at the pre-motion
conference. (See AC; Minute Entry dated Oct. 7, 2020.) In general, a plaintiff’s failure to fix
deficiencies in the previous pleading, after being provided notice of them, is alone sufficient
ground to deny leave to amend. See Nat’l Credit Union Admin. Bd. v. U.S. Bank Nat’l Ass’n,
898 F.3d 243, 257-58 (2d Cir. 2018) (“When a plaintiff was aware of the deficiencies in his
complaint when he first amended, he clearly has no right to a second amendment even if the
proposed second amended complaint in fact cures the defects of the first. Simply put, a busy
district court need not allow itself to be imposed upon by the presentation of theories seriatim.”)
(cleaned up); In re Eaton Vance Mut. Funds Fee Litig., 380 F. Supp. 2d 222, 242 (S.D.N.Y.
2005) (denying leave to amend because “the plaintiffs have had two opportunities to cure the
defects in their complaints, including a procedure through which the plaintiffs were provided
notice of defects in the Consolidated Amended Complaint by the defendants and given a chance
Case 7:20-cv-06714-CS Document 32 Filed 09/07/21 Page 30 of 31
to amend their Consolidated Amended Complaint,” and “plaintiffs have not submitted a
proposed amended complaint that would cure these pleading defects”), aff’d sub nom. Bellikoff v.
Eaton Vance Corp., 481 F.3d 110, 118 (2d Cir. 2007) (per curiam) (“[P]laintiffs were not
entitled to an advisory opinion from the Court informing them of the deficiencies in the
complaint and then an opportunity to cure those deficiencies.”) (cleaned up).
Further, as to the Federal Defendants, Plaintiffs have not asked to amend again or
otherwise suggested that they are in possession of facts that would cure the deficiencies
identified in this opinion. See TechnoMarine SA v. Giftports, Inc., 758 F.3d 493, 505 (2d Cir.
2014) (plaintiff need not be given leave to amend if plaintiff fails to specify how amendment
would cure the pleading deficiencies in the complaint); Horoshko v. Citibank, N.A., 373 F.3d
248, 249-50 (2d Cir. 2004) (per curiam) (district court did not abuse its discretion by not
granting leave to amend where there was no indication as to what might have been added to
make the complaint viable and plaintiffs did not request leave to amend).
Accordingly, the Court declines to grant Plaintiffs leave to amend their complaint as to
the Federal Defendants.
Although the Court finds the claims against the CBE Defendants to be frivolous, and thus
the Court could dismiss them with prejudice, 21 Plaintiffs have not had the opportunity to amend
The Court may dismiss frivolous claims without leave to amend:
Although a court ordinarily should not dismiss a pro se complaint without granting
leave to amend at least once when a liberal reading of the complaint gives any
indication that a valid claim might be stated, a court does have inherent power to
dismiss without leave to amend or replead where the substance of the claim pleaded
is frivolous on its face, or where amendment would otherwise be futile.
Stevens v. J&F Gourmet Deli, No. 19-CV-7445, 2019 WL 6051560, at *2 (S.D.N.Y. Nov. 13,
2019) (cleaned up).
Case 7:20-cv-06714-CS Document 32 Filed 09/07/21 Page 31 of 31
as to them. Accordingly, the dismissal of the claims against those Defendants is without
prejudice. Should Plaintiffs be in possession of facts that could cure the deficiencies identified in
this opinion, they may make a motion to amend, attaching a proposed Second Amended
Complaint against the CBE Defendants only, within three weeks of the date of this opinion – that
is, by September 28, 2021. Should Plaintiffs make such a motion, the Court will set a briefing
schedule. Should they fail to do so, the Court will dismiss the federal claims against the CBE
Defendants with prejudice.
For the foregoing reasons, the Federal Defendants’ motion to dismiss the complaint is
GRANTED and the claims against them are DISMISSED with prejudice. Plaintiffs’ federal
claims against the CBE Defendants are DISMISSED without prejudice, although the dismissal
will be converted to one with prejudice if no motion to amend is made by September 28, 2021,
and their state claims against the CBE Defendants are dismissed without prejudice. The Clerk of
Court is respectfully directed to amend the caption as set forth in footnote 14, terminate the
pending motion, (Doc. 18), and send a copy of this Opinion and Order to Plaintiffs.
Dated: September 7, 2021
White Plains, New York
CATHY SEIBEL, U.S.D.J.
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