United States District Court, N.D. Alabama, Southern Division
OWEN BOWDRE CHIEF UNITED STATES DISTRICT JUDGE
the court is the City of Fairfield's second amended
complaint. (Doc. 19). This court has the United States's
“Motion to Dismiss Amended Complaint” (doc. 20);
the City's motion to amend its second amended complaint
(doc. 23); the United States's “Motion to
Strike” the City's response to its motion to
dismiss (doc. 26); and the City's “Motion to
Exclude Exhibit B” (doc. 27).
City filed its first complaint, styled as a petition to quash
summons, on June 23, 2017. The United States moved to dismiss
the first complaint for lack of subject-matter jurisdiction,
contending that the City had failed to plead any valid waiver
of the United States's sovereign immunity. This court
granted the United States's motion and dismissed the
City's first complaint without prejudice, granting the
City leave to file the second amended complaint now before
United States now moves to dismiss the City's second
amended complaint, arguing that the City again fails to
establish a waiver of the United States's sovereign
immunity relevant to the City's allegations. (Doc. 22).
The United States also argues that the City fails to plead
exhaustion of administrative remedies under 26 U.S.C. §
7433, which provides a limited waiver of the United
States's sovereign immunity.
City responded to the United States's latest motion to
dismiss, and, in a separate filing, asks the court to allow
it to amend its second amended complaint. (Docs. 22, 23). The
City's proposed amendment is before the court. The City
also moves to strike “Exhibit B” (doc. 23-2),
which is a tax document the City avers it accidentally filed
alongside its motion to amend its complaint. (Doc. 27).
United States, for its part, moves to strike the City's
response to the motion to dismiss, which looks like an
independent attempt to amend the City's second amended
complaint outside the City's formal request. (Doc. 26).
court will DENY the United States's motion (doc. 26) to
strike the City's response (doc. 22). However, amending a
complaint through a response to a motion to dismiss is
inappropriate and confusing. See Fed. R. Civ. P.
8(a)(2) (requiring a short and plain statement that
the pleader is entitled to relief). Accordingly, the court
considers the City's filing (doc. 22) only as a response
to the United States's motion to dismiss and nothing
court will DENY the City's motion to amend its second
amended complaint. (Doc. 23). The City's proposed
addition to its complaint does not add anything of substance
to the second amended complaint nor does it cure the second
amended complaint's defects. The court will GRANT the
City's motion to strike “Exhibit B” because
it was inadvertently filed. (Doc. 27; Doc. 23-2).
the court will GRANT the United States's motion to
dismiss the second amended complaint. The court will DISMISS
the City's complaint without leave to amend. After
addressing the United States's first motion to dismiss,
this court gave the City an opportunity to correct the first
complaint's myriad deficiencies. The City squandered that
opportunity. The second amended complaint is woeful; it
contains even more deficiencies than the first complaint and
adds patently frivolous legal allegations to the mix. The
court will accordingly DIRECT the Clerk of Court to close
the City's first complaint, the court takes the
allegations in the City's second amended complaint (doc.
19) as true for purposes of examining its subject-matter
jurisdiction. See Lawrence v. Dunbar, 919 F.2d 1525,
1528-29 (11th Cir. 1990). In addition to arguing that the
court lacks jurisdiction, the United States asserts that the
City's second amended complaint fails to state a claim
upon which relief can be granted under Fed.R.Civ.P. 12(b)(6).
A Rule 12(b)(6) motion to dismiss attacks the legal
sufficiency of the complaint. Generally, the Federal Rules of
Civil Procedure require only that the complaint provide
“‘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.” Conley v. Gibson, 355 U.S. 41, 47
(1957) (quoting Fed.R.Civ.P. 8(a)). A plaintiff must provide
the grounds of his entitlement, but Rule 8 generally does not
require “detailed factual allegations.” Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting
Conley, 355 U.S. at 47).
Supreme Court explained that “[t]o survive a motion to
dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is
plausible on its face.'” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting and explaining
its decision in Twombly, 550 U.S. at 570). To be
plausible on its face, the claim must contain enough facts
that “allow[ ] the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Iqbal, 556 U.S. at 678. If the court
determines that well-pleaded facts, accepted as true, do not
state a claim that is plausible, the claim must be dismissed.
its first complaint, the City's second amended complaint
contains few coherent facts and provides insufficient
background. The court makes its best attempt at piecing
together the City's allegations and claims.
City admits that it owes the IRS significant sums of unpaid
taxes. The City cannot immediately pay all of what it owes,
so it has looked to alternative methods of payment. To that
end, City officials had a conference call with an IRS officer
on November 16, 2016.
City appears or attempts to incorporate three affidavits by
reference into its second amended complaint. City officials
Ed May, Dianne Cain, and Frank Woodson each aver that on
November 15, 2016,  they participated in a conference call
with the IRS officer about the City's unpaid taxes. (Doc.
19-1; Doc. 19-2; Doc. 19-3). During this conference call, the
IRS officer indicated that the IRS would not take action to
collect the City's unpaid taxes. Furthermore, the officer
said that the IRS would work with the City on a payment plan
or other relief. The City's complaint lacks allegations
about whether it took any steps immediately after the
November conference call to submit to the IRS an
offer-in-compromise or installment plan agreement in writing.
March 2017, the IRS notified the City that it intended to
levy on funds in the City's bank accounts. (Doc. 19
¶ 11). The City states that, at that time, the IRS had
not yet notified the City that the relief
proposed in the November 2016 conference call would
not suffice. The IRS began levying on the City's bank
accounts, and, in total, garnished an amount “in excess
of $42, 311.23.” ...