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November 22, 1991


The opinion of the court was delivered by: Rodriguez, District Judge.


This matter comes before the court on defendants' motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), and on plaintiffs' motion for partial summary judgment and appeal of the magistrate's order. For the following reasons, defendants' motion to dismiss will be granted, and the defendants' motion and appeal will be dismissed as moot.


Plaintiffs, Fred and Bruce Bryen, are certified public accountants and partial owners of the firm Bryen & Bryen. This action arises out of a series of letters written by the defendants, who are attorneys for the Internal Revenue Service, regarding the tax exempt status of investments made by clients of the plaintiffs.

The plaintiffs allege, and the defendants do not contest, that on July 12, 1990, the defendants wrote a letter to the plaintiffs and certain clients of the plaintiffs indicating, inter alia, an offer of settlement for a claim the IRS had against the recipients of the letters. In the letter, the defendants indicated the reasons for the IRS' claim, and also stated that "the mere opinion of an accountant" is disavowed as authority for the tax position taken. See Complaint at ¶¶ 6-7. Subsequent to the publication of the letter, the plaintiffs requested that the defendants withdraw the statement, as they claimed it was a misstatement of the factual record.

On September 25, 1990, the defendants again wrote to the plaintiffs and to the investors in the tax shelters and indicated that they were unwilling to revise their previous letter, and expressly denied making any material misrepresentations. See Complaint at Exh. D. Plaintiff then requested a "settlement conference" with the IRS in order to avoid "unnecessary litigation."

On May 28, 1991, defendant Stephen Kesselman, District Council for the IRS, responded to plaintiffs request by restating the IRS' position that the previous letters contained no misrepresentations regarding the evaluation of the plaintiffs tax shelters, and refused to issue any "retraction" of the statements.

Plaintiffs contend that the statements in the letters were made with "evil motive and malice, with intent to injure, disgrace and defame plaintiff[s] and with knowledge of the falsity as to the truth of the statement." Id. at ¶ 7. The plaintiffs also complain that, because of these statements, they "suffered great upset, shock, and mental and emotional distress" and that the firm of Bryen & Bryen "suffered loss of income and future income by termination of its services by clients who . . . felt that plaintiff . . . had given them improper advice." Complaint at ¶ 9. In addition, plaintiffs claim they have "suffered damages" resulting from the May, 1991 letter. This action followed.

In paragraph 5 of the complaint, plaintiffs allege "[t]he action arises under the Fifth Amendment to the Constitution of the United States which states in part: `No person shall be . . . deprived of life, liberty, or property, without due process of law. . . .'" Complaint at ¶ 5. Defendants have moved to dismiss the complaint for failure to state a claim upon which relief can be granted, pursuant to Fed.R.Civ.P. 12(b)(6).


A. Standard of Review

When considering a motion to dismiss pursuant to Rule 12(b)(6), a court must accept as true all well-pleaded allegations in the complaint and view them in the light most favorable to the plaintiff. See Rogin v. Bensalem Township, 616 F.2d 680, 685 (3d Cir. 1980), cert. denied, 450 U.S. 1029, 101 S.Ct. 1737, 68 L.Ed.2d 223 (1981). If, under any circumstances, the plaintiff would be entitled to relief, then a motion to dismiss should not be granted. See Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957); Williams v. Hepting, 844 F.2d 138, 140 (3d Cir. 1988). When a party is proceeding pro se, they are held to a less stringent standard than the ordinary litigant, and are entitled to a liberal construction of the courts procedural rules. See Todaro v. Bowman, 872 F.2d 43, 44 n. 1 (3d Cir. 1989). With the foregoing in mind, I proceed to the merits.

B. Constitutional Claims

Defendants assert in their motion to dismiss that the plaintiffs' complaint should be dismissed because it fails to allege a deprivation of a constitutional right.*fn1 See Memorandum in Support at 3. In support of this position, the defendants rely on Siegert v. Gilley, ___ U.S. ___, 111 S.Ct. 1789, 114 L.Ed.2d ...

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