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UNITED STATES v. JONES

February 6, 1995

UNITED STATES OF AMERICA, Plaintiff,
v.
HARRY C. JONES, JANET E. JONES, and ATCO SAVINGS & LOAN ASSOCIATION, Defendants.



The opinion of the court was delivered by: BROTMAN

 BROTMAN, DISTRICT JUDGE

 Presently before the court are defendant Harry C. Jones' three motions to dismiss. For the reasons set forth below, defendant's motions are granted in part and denied in part.

 I. Factual and Procedural Background

 On April 6, 1992, the United States filed a complaint in this court seeking to recover a judgment on certain federal tax assessments made against the defendant Harry C. Jones ("Jones"), to set aside a transfer of certain property by Jones to defendant Janet E. Jones ("Janet Jones") as a fraudulent conveyance, and an adjudication that Janet Jones pay the United States one-half the imputed rental income of the conveyed property which payment is to be credited to reduce the tax liability of defendant Jones.

 On July 16, 1992, Janet Jones answered this complaint by a letter wherein she denied that the conveyance of the real property was fraudulent. Additionally, Mrs. Jones alleged that Mr. Jones transferred to her the title to the subject property on June 9, 1983 in order to increase her security. Mrs. Jones, however, never raised the statute of limitations as a defense in her answer. Defendant Jones did not answer the complaint until March 4, 1994. In his answer, Jones never raised the statute of limitations as a defense.

 After obtaining leave from this court to file an amended complaint, the United States ("United States" or the "government"), on April 25, 1994, filed its amended complaint which basically added a third count seeking foreclosure and sale of the subject real property to satisfy any judgment entered by the court. Mr. and Mrs. Jones answered the amended complaint separately. Their answers were filed before this court granted the government leave to amend its complaint. Neither the answer of Mrs. Jones nor the answer of Mr. Jones plead the statute of limitations as a defense. Mr. Jones filed a supplemental answer to the amended complaint on May 17, 1994 in which he also failed to raise the statute of limitations defense.

 On June 15, 1994, defendant Jones filed three separate motions to dismiss the government's complaint on the following grounds: (1) the applicable statute of limitations had expired before the government commenced its suit; and (2) the amended complaint is vague and fails to state a claim upon which relief can be granted. The government opposes defendant's motions and requests that they be denied for the following reasons: (1) the motions were untimely because pursuant to court order, dispositive motions were required to be filed by June 1, 1994; (2) pursuant to Rule 8(c) of the Federal Rules of Civil Procedure, defendant waived the statute of limitations defense by failing to raise it as an affirmative defense in his answer to the complaint; (3) the government's complaint is not vague and complies with Rules 8(a) and 9(b) of the Federal Rules of Civil Procedure; and (4) the applicable statute of limitations period for the government to file its complaint had not expired.

 II. Discussion

 The defendant in this matter appears pro se and, as a result, the court will afford defendant greater leniency than a litigant represented by an attorney. The pleadings submitted by a pro se litigant may be held to a less stringent standard. Haines v. Kerner, 404 U.S. 519, 520, 30 L. Ed. 2d 652, 92 S. Ct. 594 (1972). However, in this matter, the court will not waste time assessing whether or not defendant's failure to timely file his dispositive motions or his failure to raise the statute of limitations as an affirmative defense should preclude the court's consideration of his motions to dismiss. Because the majority of defendant's contentions fail on the merits, without wasting time on procedural bases for denial of defendant's motions, the court proceeds to address the substantive issues presented.

 A. Vagueness of the Complaint

 In his Motion to Dismiss for Failure to State a Cause of Action, defendant requests that the court dismiss the government's complaint for vagueness because the complaint fails to state the statutory provisions and regulations pursuant to which defendant is being sued and thus fails to notify defendant of the exact nature of the actions brought against him. The government asserts that its pleadings are sufficient to satisfy Rules 8(a) and 9(b) of the Federal Rules of Civil Procedure and to withstand a motion to dismiss.

 Rule 8(a)(2) provides that a pleading shall contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Rule 9(b) provides that all averments of fraud must be pleaded with particularity. The federal rules are based on notice pleading rather than fact pleading. Universe Tankships, Inc. v. United States, 528 F.2d 73, 75 (3d Cir. 1975).

 
The Federal Rules of Civil Procedure do not require a claimant to set out in detail the facts upon which he bases his claim. To the contrary, all the Rules require is "a short and plain statement of the claim" that will give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests. . . . . Such simplified "notice pleading" is made possible by the liberal opportunity for discovery and the other pretrial procedures established by the Rules ...

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