United States District Court, D. New Jersey
December 20, 2005.
ESMAT ZAKLAMA and SYLVIA ZAKLAMA, Plaintiffs,
INTERNAL REVENUE SERVICE, et al., Defendants.
The opinion of the court was delivered by: DENNIS CAVANAUGH, District Judge
This matter comes before the Court upon a motion by Defendant
Wachovia Bank ("WB"), which Defendant Bank of America*fn1
("BOA") joined, to dismiss pro se Plaintiffs Esmat and Sylvia
Zaklama's ("Plaintiffs") Complaint pursuant to Rule 12(b)(6) of
the Federal Rules of Civil Procedure for failure to state a
sufficient claim. The Internal Revenue Service ("IRS") and its
two employees, Maria Rodriguez and Steven Ianacone, filed an
individual motion to dismiss Plaintiffs' Complaint pursuant to
Rule 12(b)(5) of the Civil Rules of Procedure for insufficiency
of service of process. No oral argument was heard pursuant to
Rule 78 of the Federal Rules of Civil Procedure. For the reasons
set forth below, Defendants WB and BOA's motion to dismiss is
granted. Defendants IRS, Ianacone and Rodriguez's motion to
dismiss is granted in part and denied in part.
This matter arose over a dispute regarding Plaintiffs' taxes
and Plaintiffs' belief Defendants violated their constitutional
rights, in part, by allegedly coercing them to execute a
stipulation of facts in their pending United States Tax Court
case. (Plaintiffs' Complaint ("Compl.") ¶¶ 9, 16). Plaintiffs
filed their Complaint against Defendants IRS, Steven Ianocone,
Maria Rodriguez, Steven J. Jozwik, George Papas, BOA, and WB on
January 25, 2005. On May 20, 2005, this Court ordered Plaintiffs
to effect service of their Summons and Complaint on Defendants by
June 15, 2005, or their case would be dismissed. (May 2005
Order). Plaintiffs then attempted to serve Steven Ianacone, Maria
Rodriguez, George Papas, WB and BOA. WB filed its motion to
dismiss on July 8, 2005, and BOA joined in that motion on
September 9, 2005. The IRS, Maria Rodriguez, and Steven Ianacone,
filed their motion to dismiss on November 15, 2005. Plaintiffs
have not filed a response to either motion to dismiss.
A. Bank of America and Wachovia Bank
When deciding a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6), all allegations in the Complaint must be
taken as true and viewed in the light most favorable to the
plaintiff. See Worth v. Selden, 422 U.S. 490, 501 (1975);
Trump Hotels & Casino Resorts, Inc. v. Mirage Resorts, Inc.,
140 F.3d 478, 483 (3d Cir. 1988); Robb v. Philadelphia,
733 F.2d 286, 290 (3d Cir. 1984). In evaluating a Rule 12(b)(6)
motion to dismiss, a court may consider only the Complaint,
exhibits attached to the Complaint, matters of public record, and
undisputedly authentic documents if the plaintiff's claims are based upon
those documents. Pension Benefit Guar. Corp. v. White Consol.
Indus., 998 F.2d 1192, 1196 (3d Cir. 1993).
Additionally, Rule 8(a) of the Federal Rules of Civil Procedure
requires a complaint contain "a short and plain statement of the
claim showing that the pleader is entitled to relief."
Fed.R.Civ.P. 8(a). Due to an understandable difference in legal
sophistication, a complaint drafted by a pro se litigant must
be held to a less exacting standard than a complaint drafted by
trained counsel. Haines v. Kerner, 404 U.S. 519 (1972).
Nonetheless, a court should dismiss the case pursuant to Rule
8(a), "if a pro se complaint is so confusing or unintelligible
that no party could possibly understand or reply to it." Cole v.
Commonwealth Federal, 1994 WL 618464, *1 (E.D.Pa.); citing
King v. Fayette County, 92 F.R.D. 457, 458 (W.D.Pa. 1981);
Brown v. Califano, 75 F.R.D. 497 (1977).
2. Plaintiffs Failure to Meet Standard
Plaintiffs failed to state any facts which meet the requisite
elements of any of the causes of action alleged in their
Complaint against either Defendants WB or BOA. In their statement
of facts in the Complaint, Plaintiffs claim Defendant Maria
Rodriguez fraudulently obtained bank reports of Plaintiffs'
accounts from BOA and WB. (Compl. ¶ 8). Plaintiffs do not mention
WB again in their Complaint. Plaintiffs do not allege any direct
claims or causes of action against WB anywhere in the Complaint.
BOA is only mentioned once more in the Complaint, when Plaintiffs
describe where one of their corporations has its account. (Id.
at ¶ 15(c)). Plaintiffs also do not allege any direct claims or
causes of action against BOA anywhere in the Complaint. For these
reasons, Plaintiffs' claims against both WB and BOA are
B. Defendants IRS, Maria Rodriguez, and Steven Ianacone 1. Standard
A defendant may file a motion to dismiss pursuant to Rule
12(b)(5) of the Federal Rules of Civil Procedure when a plaintiff
fails to properly serve him or her with the summons and
complaint. Due to the fact the IRS is an agency of the United
States, both the IRS and its employees must be served according
to the requirements set forth in Rule 4(i) of the Federal Rules
of Civil Procedure. Pursuant to Rule 4(i), service must be made
by delivering a copy of the summons and complaint to the United
States Attorney's Office and sending a copy of the summons and
complaint by registered or certified mail to the Attorney
General. Also, to properly serve the IRS, a copy of the summons
and complaint must be sent by registered or certified mail to the
IRS. Fed R.Civ. P. 4(i)(2)(A). In order to properly serve an IRS
employee being sued in their individual capacity, a copy of the
summons and complaint must be personally served on the employee.
2. Plaintiffs' Failure to Perform Proper Service
Plaintiffs' filed their Complaint on January 20, 2005, but did
not serve Defendants. On May 20, 2005, this Court issued an Order
requiring that Plaintiffs to serve Defendants by June 15, 2005,
or their case would be dismissed. The Clerk of the Court issued
summons on June 13, 2005, almost one month after the expiration
of the time Plaintiffs had to timely serve Defendants. Plaintiffs
did not serve the Attorney General or the United States
Attorney's Office. Also, no Return of Service has been filed with
this Court proving either of these parties has been served.
Finally, Plaintiffs have not filed a Return of Service with this
Court indicating they properly served the IRS. Plaintiffs were
already given a second chance to properly serve Defendants in this matter, however Plaintiffs have failed to comply with the
rules set forth by Rule 4(i) of the Federal Rules of Civil
Procedure. For these reasons, Plaintiffs' claims against the IRS
Plaintiff also failed to properly serve Defendant Rodriguez. On
Defendant Rodriguez's summons, the box indicating she was
personally served is not checked. Instead it states she was
served via fax simile, regular mail and certified mail. Rule 4(i)
requires her to be personally served. Plaintiffs again failed to
meet the requirements set forth by the rule. Therefore
Plaintiffs' claims against Defendant Rodriguez are dismissed.
While Defendant Ianacone's summons indicates that he was served
personally, he claims he was not served personally, but that his
receptionist was served. As Defendants point out in their brief,
the purpose of Rule 4(i) is to provide parties with sufficient
notice of the case so that they may defend it as they see fit.
Defendant Ianacone knew he was named as a party to this lawsuit
and he has offered no reasons why he is prejudiced by Plaintiffs'
method of service. Therefore, Plaintiffs' claims against
Defendant Ianacone are not dismissed.
For the reasons stated, it is the finding of this Court that
Defendants WB and BOA's motion to dismiss is granted. Defendants
IRS, Rodriguez and Ianancone's motion to dismiss is granted in
part and denied in part. An appropriate Order accompanies this
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