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
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).
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.
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 ...