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Surgick v. Cirella

June 15, 2010

ZEFFIE SURGICK AND CORDELIA JOHNSON, PLAINTIFFS,
v.
ACQUANETTA CIRELLA, ROSE SURGICK, K. HOVNANIAN ENTERPRISES, INC., C/O ACQUANETTA CIRELLA, AND INTERNAL REVENUE SERVICE, DEFENDANTS.



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

OPINION

Plaintiffs, Zeffie Surgick and Cordelia Johnson, have brought a suit against defendants, Acquanetta Cirella, Rose Surgick, K. Hovnanian Enterprises, Inc. ("K. Hovnanian"), and the Internal Revenue Service ("IRS"), with regard to the estate of plaintiffs' father, James Leslie Surgick. By denying them access to tax records and other information relating to their father and his estate, plaintiffs allege that defendants have violated their First Amendment and statutory rights to freedom of information. Additionally, plaintiffs accuse Cirella and Rose Surgick, both of whom allegedly exercise power of attorney over the estate, of conspiring to deceive, defraud, and conceal the value of the estate and of refusing to cooperate with plaintiffs.

Presently before this Court are motions to dismiss submitted by the IRS, K. Hovnanian, and Cirella and Surgick, as well as plaintiffs' Motion for "Removal for Cause" and Motion for Default Judgment, both directed against Cirella and Surgick. For the following reasons, the IRS's Motion to Dismiss is granted, but plaintiffs will have leave to amend their complaint. Further, K. Hovnanian's Motion to Dismiss is granted. Conversely, the Court will deny Cirella and Surgick's Motion to Dismiss and plaintiffs' Motion for "Removal for Cause" and Motion for Default Judgment.

I. JURISDICTION

Plaintiffs set forth claims derived from both federal and New Jersey law. This Court has subject matter jurisdiction over plaintiffs' federal claims pursuant to 28 U.S.C. § 1331. Further, this Court may exercise supplemental jurisdiction over plaintiffs' related state law claims pursuant to 28 U.S.C. § 1367.

II. BACKGROUND

Plaintiffs, Zeffie Surgick and Cordelia Johnson, are two of James Leslie Surgick's children. In May 1996, James Leslie Surgick died intestate, leaving behind his estate and his twelve children, including plaintiffs and defendants, Acquanetta Cirella and Rose Surgick. According to plaintiffs' complaint, Cirella and Rose Surgick obtained power of attorney over their father's estate. Upon assuming power of attorney, however, Cirella and Surgick refused to cooperate with plaintiffs. Despite plaintiffs' requests, Cirella and Surgick have not provided them with certain information relating to the estate, such as an account of its assets.*fn1

Plaintiffs turned to the IRS and requested documents and records relating to their father and his estate. In search of information, they also reached out to K. Hovnanian, a corporation in which their father allegedly had some sort of ownership, control, or interest. Neither the IRS nor K. Hovnanian provided plaintiffs with the information they sought.

On July 31, 2009, plaintiffs filed a complaint in this Court against Cirella, Surgick, and K. Hovnanian.*fn2 Soon thereafter, the Court issued an Order to Show Cause, directing plaintiffs to properly plead the federal question that would serve as the basis for the Court's jurisdiction over the case. On August 13, 2009, plaintiffs filed their amended complaint, adding the IRS as a defendant. By denying them access to the tax records and other information relating to their father and his estate, plaintiffs claim that defendants violated their First Amendment rights to freedom of information and federal statutory law, specifically 26 U.S.C. § 6103(e)(3) and "IRS Code 1729" and the Privacy Act, 5 U.S.C. § 552a.*fn3 Plaintiffs also allege that Cirella and Rose Surgick conspired to deceive, defraud, and conceal the value of the estate and have refused to cooperate with plaintiffs.

On September 8, 2009, K. Hovnanian filed a Motion to Dismiss against plaintiffs' amended complaint. About a month later, Cirella and Rose Surgick submitted a document, which the Court construes to be a motion to dismiss. On October 19, 2009, the IRS also filed a Motion to Dismiss. In turn, plaintiffs filed a Motion for "Removal for Cause" and a Motion for Default Judgment, both directed against Cirella and Surgick. The Court now considers all of the aforementioned motions.

III. DISCUSSION

A. Standards of Review

In this case, defendants invoke Federal Rules of Civil Procedure 12(b)(6) and 12(b)(1). When considering a motion to dismiss a complaint for failure to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6), a court must accept all well-pleaded allegations in the complaint as true and view them in the light most favorable to the plaintiff. Evancho v. Fisher, 423 F.3d 347, 350 (3d Cir. 2005). It is well settled that a pleading is sufficient if it contains "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2).

A district court, in weighing a motion to dismiss, asks "'not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claim.'" Bell Atl. Corp. v. Twombly, 550 U.S. 544, 563 n.8 (2007) (quoting Scheuer v. Rhoades, 416 U.S. 232, 236 (1974)); see Ashcroft v. Iqbal, 129 S.Ct. 1937, 1953 (2009) ("Our decision in Twombly expounded the pleading standard for 'all civil actions'...." (citation omitted)). First, under the Twombly/Iqbal standard, a "district court must accept all of the complaint's well-pleaded facts as true, but may disregard any legal conclusions." Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009) (citing Iqbal, 129 S.Ct. at 1950).

Second, a district court "must then determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a 'plausible claim for relief.'" Id. at 211 (quoting Iqbal, 129 S.Ct. at 1950). "[A] complaint must do more than allege the plaintiff's entitlement to relief." Id.; see Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) ("The Supreme Court's Twombly formulation of the pleading standard can be summed up thus: 'stating... a claim requires a complaint with enough factual matter (taken as true) to suggest' the required element. This 'does not impose a probability requirement at the pleading stage,' but instead 'simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence ...


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