HVIZDAK v. UNITED STATES OF AMERICA et al

Filing 38

ORDER. For the reasons stated in the Memorandum filed herewith, IT IS HEREBY ORDERED that Defendant's Motions to Dismiss (Docs. 9 , 10 , 14 ) are GRANTED. IT IS FURTHER ORDERED that Plaintiff's Complaint (Doc. 1 ) is DISMISSED, with p rejudice. IT IS FURTHER ORDERED that Plaintiff's Motion to Unseal the Search Warrant (Doc. 19 ), and Motion to Transfer (Doc. 26 ), are DENIED as moot. Signed by Judge Cathy Bissoon on 8/31/15. (rld) (Main Document 38 replaced on 8/31/2015 in order to correct case caption only) (rld).

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

RICHARD HVIZDAK,
Plaintiff,
v.
UNITED STATES OF AMERICA,
UNITED STATES DEPARTMENT OF
JUSTICE, JODENE M. WEBER, and
BRIAN JAMES MURPHY,
Defendants.

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Civil Action No. 14-1296

Judge Cathy Bissoon

MEMORANDUM ORDER
For the reasons that follow, United States of America, Jodene M. Weber, and Brian
James Murphy’s (collectively, “Defendants’”), Motions to Dismiss (Docs. 9, 10, and 14) will be
GRANTED.
I. MEMORANDUM
Pending before the Court are the Motions to Dismiss (Docs. 9, 10, 14) filed, respectively,
by the United States of America, Jodene M. Weber and Brian James Murphy, pursuant to Rules
12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. Defendants seek dismissal of all
claims asserted in the September 22, 2014 Complaint (Doc. 1) filed by Richard Hvizdak
(“Plaintiff”). Plaintiff’s claims are asserted under the Federal Tort Claims Act, 28 U.S.C.
§ 2671, et seq. (“FTCA”), the Fourth, Fifth, Ninth and Fourteenth Amendments to the United
States Constitution, and Bivens v. Six Unknown Agents of Fed. Bureau of Narcotics, 403 U.S.

388 (1971).1 This Court ostensibly exercises subject-matter jurisdiction over Plaintiff’s claims
pursuant to 28 U.S.C. §§ 1331 and 1346(b)(1). For the following reasons, Defendants’ motions
will be granted.
Plaintiff is the partial owner of a Pittsburgh, Pennsylvania area pharmacy doing business
as ANEWrx (the “pharmacy”), in which he purportedly invested $850,000. Compl. at ¶¶ 1, 1416. Agents of the Federal Bureau of Investigation (“FBI”) raided the pharmacy in March 2011,
pursuant to its investigation into the unlawful writing and filling of steroid and human growth
hormone prescriptions by pharmacy co-owner and manager, William Sadowski, and a nonemployee physician, Richard A. Rysze. Id. at ¶¶ 16, 21-24. William Sadowski consequently is
serving a prison term, and Richard A. Rysze currently is awaiting trial on charges stemming
from the writing and filling of the aforementioned prescriptions. Id. at ¶¶ 17-19.
According to Plaintiff, the FBI raid resulted in the wanton and arbitrary deprivation of
pharmacy property. Id. at ¶¶ 23-24. This included unspecified damage to locked filing cabinets
following forced entry with crowbars; the ongoing seizure of personal medical files; the ongoing
seizure of a “16 unit channel bank module” for the pharmacy’s security system; and the ongoing
seizure of sensitive pharmaceuticals worth approximately $300,000. Id. at ¶¶ 23-24, 27-28.
Plaintiff believes that these actions by Defendants, made pursuant to a March 16, 2011 warrant
issued by the United States District Court for the Western District of Pennsylvania, were
violative of federal law and the Constitution. See id. at ¶¶ 21, 32-42. In 2013, Plaintiff filed a

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To the extent Plaintiff attempts to file a claim pursuant to the Civil Asset Forfeiture Reform
Act, 28 U.S.C. § 2465 (“CAFRA”), the Court must dismiss the claim, with prejudice. CAFRA
provides fees, costs, and interest to claimants who substantially prevail in civil forfeiture
proceedings. Presently, Plaintiff has not substantially prevailed in a civil forfeiture case before
this court; therefore, the remedies provided by CAFRA are unavailable to him. United States v.
Approximately $16,500.00 in United States Currency, -- F. Supp. 3d --, 2015 WL 3972433, at *3
(M.D. Pa. June 30, 2015).
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petition for return of property seized in accordance with Rule 41(g) of the Federal Rules of
Criminal Procedure. Id. at ¶ 25. Following a hearing before a United States Magistrate Judge,
Plaintiff’s request was denied, with the exception of the return of personal medical files. Id. at
¶ 26. Plaintiff thereafter filed a Complaint in this Court on September 22, 2014.
As an initial matter, Defendants seek dismissal of Plaintiff’s Complaint because Plaintiff
allegedly lacks standing. “A motion to dismiss for want of standing is . . . properly brought
pursuant to Rule 12(b)(1), because standing is a jurisdictional matter.” Constitution Party of Pa.
v. Aichele, 757 F.3d 347, 357 (3d Cir. 2014) (quoting Ballentine v. United States, 486 F.3d 806,
810 (3d Cir. 2007)). In order to survive the Motions to Dismiss, Plaintiff must demonstrate the
requisite stake in the outcome of his suit by showing: 1) injury-in-fact; 2) causation; and
3) redressability. Id. at 360. Whether Defendants’ Motions are “facial” or “factual” attacks on
standing determines the burden of proof and standard of review. Id. at 357 – 58 (citing In re
Schering Plough Corp. Intron, 678 F.3d 235, 243 (3d Cir. 2012)).
A facial attack considers only “a claim on its face and asserts that it is insufficient to
invoke the subject matter jurisdiction of the courts” due to some jurisdictional defect. Aichele,
757 F.3d at 358. This type of attack occurs prior to the filing of an answer or a challenge to the
factual allegations of a complaint. Id. (citing Mortensen v. First Fed. Sav. & Loan Ass’n, 549
F.2d 884, 889 – 92 (3d Cir. 1977)). It is judged under the same standard as a motion to dismiss
pursuant to Rule 12(b)(6). Id. A factual attack concerns “‘the actual failure of a plaintiff’s
claims to comport factually with the jurisdictional prerequisites.’” Id. (quoting CNA v. United
States, 535 F.3d 132, 139 (3d Cir. 2008)). In such a case, a court may weigh the alleged facts,
and consider evidence outside the pleadings. Id. The non-moving party’s claims receive no

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presumption of truthfulness. Id. “[P]laintiff has the burden of persuasion to convince the court it
has jurisdiction.” Gould Elec., Inc. v. United States, 220 F.3d 169, 178 (3d Cir. 2000).
The inquiry here is whether Plaintiff’s articulated position as part-owner and investor in
the pharmacy provides him with standing to sue for the seizure of the pharmacy’s property.
There is no dispute about Plaintiff’s interest in the pharmacy. As a facial attack by Defendants,
the Court will accept as true all allegations in Plaintiff’s Complaint. Gould Elec., Inc., 220 F.3d
at 177. However, in determining whether Plaintiff’s pleadings are sufficient to invoke subject
matter jurisdiction, the Court is compelled to take judicial notice of the existence of two
ANEWrx entities registered with the Commonwealth of Pennsylvania: ANEWrx, L.P., and
ANEWrx, L.L.C. Pennsylvania Department of State, https://www.corporations.pa.gov/
Search/CorpSearch (last visited Aug. 21, 2015). See Paschal v. Univ. of Pittsburgh Sch. of
Med., 2010 WL 4854675, at * 3 (W.D. Pa. Nov. 22, 2010) (holding that the court may take
judicial notice of public records for purposes of ruling on a motion to dismiss filed pursuant to
Rule 12(b)(1)) (citing Anspach v. Phila., 503 F.3d 256, 273 n. 11 (3d Cir. 2007); Pinewood
Estates of Mich. v. Barnegat Twp. Leveling Bd., 898 F.2d 347, 349 – 50 n. 4 (3d Cir. 1990)).
ANEWrx, L.L.C., is further noted to be a general partner in ANEWrx, L.P. Pennsylvania
Department of State, https://www.corporations.pa.gov/ Search/CorpSearch (last visited Aug. 21,
2015)
In his Complaint, Plaintiff fails to specify the nature of his ownership and involvement in
the pharmacy. He also fails to address Defendants’ arguments regarding standing in his
responsive submissions. The Court notes that, as a general proposition, it is well established that
without direct, individual injury, a shareholder in a corporation – even a sole shareholder – lacks
standing to sue for injury to the corporation. Meade v. Kiddie Acad. of Domestic Franchising,

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LLC, 501 F. App’x 106, 108 (3d Cir. 2012) (citing Jones v. Niagara Frontier Transp. Auth.
(NFTA), 836 F.2d 731, 736 (2d Cir. 1987)). See also Bancroft Life & Cas., ICC, Ltd. v. Lo, 978
F.Supp.2d 500, 508 (W.D. Pa. 2013) (“‘[D]erivative injury rule holds that a shareholder (even a
shareholder in a closely-held corporation) may not sue for personal injuries that result directly
from injuries to the corporation.’”) (quoting In re Kaplan, 143 F.3d 807, 811 – 12 (3d Cir.
1998)). The injury must be something separate and distinct from the injury inflicted upon the
corporation – something more than diminution in value of investments. Lo, 978 F.Supp.2d at
507 – 08 (citing Pitchford v. PEPI, Inc., 531 F.2d 92, 97 (3d Cir. 1975); Kauffman v. Dreyfus
Fund, Inc., 434 F.2d 727, 732 (3d Cir. 1970)).
While neither of the ANEWrx entities are traditional corporations, the effect, here, is
similar. In order to satisfy the injury-in-fact element of standing, Plaintiff must show that
Defendants’ actions “‘affect the plaintiff in a personal and individual way.’” Aichele, 747 F.3d
at 361 (quoting In re Schering Plough Corp., 678 F.3d at 245). In Pennsylvania, “‘limited
partnerships are entities separate from their partners.’” In re Petition of Lawrence Cnty. Tax
Claim Bureau, 998 A.2d 675, 679 (Pa. Commw. Ct. 2010) (quoting 61 PA. CODE § 91.154). “An
individual who is a limited partner . . . cannot proceed in his individual capacity on behalf of a
partnership. The limited partner’s liabilities are not co-extensive with those of the partnership, as
is the case for a general partner.” Id. at 680 n. 9. Plaintiff has not alleged that he is a general
partner in ANEWrx, L.P. Public records indicate that ANEWrx, L.L.C., is the general partner.
As such, he has not alleged sufficient facts to establish his standing to bring the claims stated in
his Complaint.
To the extent Plaintiff may have an ownership interest in ANEWrx, L.L.C., his
membership interest will similarly afford him no relief. Where a plaintiff’s complaint alleges

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only harm to the limited liability company, the plaintiff cannot recover, because the harm to him
or her, as a member, is indirect. Irish v. Ferguson, 970 F.Supp.2d 317, 348 (M.D. Pa. 2013).
There must be factual allegations of a direct injury to Plaintiff in order to establish standing. Id.
As above, Plaintiff has not demonstrated a direct injury to him, aside from the diminution of his
investment stemming from the seizure of pharmacy property. Indeed, Plaintiff does not indicate
– with any specificity – the nature of his alleged ownership interest, or by which entity the
pharmacy was operated. The Complaint, even when viewed in the light most favorable to
Plaintiff, fails on its face to invoke the subject matter jurisdiction of this Court.
Nonetheless, even if Plaintiff could plead facts adequate to establish that he had standing,
the Court finds his claims against Defendants to be time-barred. With respect to Plaintiff’s
FTCA claims, 28 U.S.C. § 2401(b) requires a plaintiff to present his or her claim to the
appropriate federal agency within two years of accrual. Pellegrino v. United States Transp. Sec.
Admin., 855 F.Supp.2d 343, 355 (E.D. Pa. 2012); Sharrat v. Murtha, 437 F. App’x 167, 174 (3d
Cir. 2011) (citing Deutsch v. United States, 67 F.3d 1080, 1091 (3d Cir. 1995)). In his
Complaint, Plaintiff states that the pharmacy was searched and property was seized on March 21,
2011. Compl. at ¶ 5. He then clearly states that an administrative claim was not submitted to the
Department of Justice until November 5, 2013. Id. at ¶ 11. This placed the administrative
complaint over seven months beyond the two-year deadline. It is Plaintiff’s belief that the
principle of equitable tolling should be applied to excuse this delay.
Sufficiently inequitable circumstances will toll a limitations period “‘(1) where the
defendant has actively misled the plaintiff respecting the plaintiff’s cause of action; (2) where the
plaintiff in some extraordinary way has been prevented from asserting his or her rights; or
(3) where the plaintiff has timely asserted his or her rights mistakenly in the wrong forum.’”

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Santos ex. rel. Beato v. United States, 559 F.3d 189, 197 (3d Cir. 2009) (quoting Hedges v.
United States, 404 F.3d 744, 751 (3d Cir. 2005)). Yet, equitable tolling is an extraordinary
remedy to be used sparingly, and requires that a plaintiff demonstrate the “exercise of due
diligence in pursing and preserving [a] claim.” Id. (citing Irwin v. Dept. of Veterans Affairs, 498
U.S. 89, 94 (1990)).
Presently, Plaintiff simply claims that because the search warrant has remained sealed, he
was unable to determine whether the scope of the search and the consequent seizures were
proper. Def.’s Reply to April 29, 2015 Gov’t Mem. (Doc. 33) at 3. Yet, Plaintiff does not
explain why the sealed warrant prevented him from filing a timely administrative complaint
regarding items he knew were seized and damages he claims to have incurred.2 Moreover, there
also is no evidence that Plaintiff took steps to diligently pursue his claims prior to filing his
Complaint. As such, equitable tolling of Plaintiff’s FTCA claims has not been justified, even
when the facts pled are viewed in the light most favorable to Plaintiff.
With respect to Plaintiff’s Bivens claims, the limitations period has also passed. The
statute of limitations for Bivens claims is derived from the forum state’s statute for the relevant
tort. Kach v. Hose, 589 F.3d 626, 635 (3d Cir. 2009); Brown v. Tollackson, 314 F. App’x 407,
408 (3d Cir. 2008). In Pennsylvania, the relevant period is two years. Barren v. Allegheny Cnty.
Pa., 607 F. App’x 130, 131 (3d Cir. 2015). The claim accrues “‘when the plaintiff knew or
should have known of the injury upon which his action is based.’” Id. (quoting Kach, 589 F.3d
at 634). As discussed, the pharmacy was searched and property was seized on March 21, 2011.
Compl. at ¶ 5. Plaintiff knew or reasonably should have known that he was injured by the
Indeed, Plaintiff’s argument is undermined by the fact that he did, ultimately, file an
administrative action notwithstanding the fact that the search warrant remains sealed to this day.
See Criminal Action No. 12-262. Clearly, Plaintiff was well aware that the sealed nature of the
warrant was not a barrier to his claim.
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allegedly improper search and seizures at that time. Barren, 607 F. App’x at 132. Yet, Plaintiff
did not file the present Complaint until September 22, 2014 – approximately one year and six
months beyond the two-year limitations period. Plaintiff provides no justification for the delay.
As such, even viewed in the light most favorable to Plaintiff as the non-moving party, his Bivens
claims are time-barred.
With respect to the passing of the limitations periods for Plaintiff’s FTCA and Bivens
claims, the inadequacies in Plaintiff’s Complaint are unlikely to be remedied by supplemental
pleadings. As such, these claims will be dismissed, with prejudice. See Phillips v. Cnty. of
Allegheny, 515 F. 3d 224, 245 – 46 (3d Cir. 2008) (dismissal with prejudice is appropriate when
leave to amend would be futile). Additionally, the Court does not have jurisdiction over
Plaintiff’s remaining Takings Clause claim. Bellocchio v. N.J. Dept. of Envtl. Prot., 602 F.
App’x 876, 879 (3d Cir. 2015) (holding that “takings” claims in excess of $10,000 must be
brought in the Court of Federal Claims, pursuant to 28 U.S.C. § 1491(a)(1)) (citing E. Enters. v.
Apfel, 524 U.S. 498, 520 (1998)). Therefore, the entirety of Plaintiff’s Complaint will be
dismissed, with prejudice, and Plaintiff’s motion to unseal the search warrant and motion to
transfer his Takings Clause claim will both be denied as moot.

II. ORDER
For the reasons stated above, IT IS HEREBY ORDERED that Defendant’s motions to
dismiss (Docs. 9, 10, 14) are GRANTED.
IT IS FURTHER ORDERED that Plaintiff’s Complaint (Doc. 1) is DISMISSED, with
prejudice.

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IT IS FURTHER ORDERED that Plaintiff’s motion to unseal the search warrant (Doc.
19), and motion to transfer (Doc. 26), are DENIED as moot.
IT IS FURTHER ORDERED that the Clerk shall mark this case closed.

August 31, 2015
s/Cathy Bissoon__________
Cathy Bissoon
United States District Judge

cc (via ECF email notification):
All counsel of record.
cc (via First-Class U.S. Mail):
Richard Hvizdak
110 South Main Street
Pittsburgh, PA 15220

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