The opinion of the court was delivered by: McLAUGHLIN, Sean J., District J.,
This civil action was commenced on June 30, 2009 when the United States and Mary Arndt, acting as Revenue Officer of the Internal Revenue Service (IRS), filed a complaint against Defendant Ebert G. Beeman to enforce an IRS summons. The complaint arose out of the Service's investigation into Beeman's federal income tax liability relative to certain tax years. On May 2, 2008, the IRS, then acting through Revenue Officer Ed Pattison, issued a summons to Beeman directing him to appear at a specified location on June 12, 2008 and to produce for examination certain books, papers, records or other data pertinent to the on-going investigation.
Beeman partially complied with the subpoena but, as to tax years 2000 and 2001, the IRS deemed his compliance insufficient. Thus, the complaint seeks an order which, among other things, would direct Beeman to fully comply with the terms of the summons, particularly as it relates to the years 2000 and 2001.*fn1
On October 6, 2009 and again on October 19, 2009, Beeman, proceeding pro se, filed two documents, both entitled "Specific Affidavit of Negative Averment, Opportunity to Cure, and Counterclaim"  and . In these documents, Beeman purports to assert claims against Arndt and Pattison as well as GE Client Business Services and Keith S. Sherin relative to certain liens, levies and/or garnishments which were imposed in January and September of 2009 against his property and/or bank accounts. Arndt and Pattison have moved for summary judgment on these claims, while GE Client Business Services has filed a motion to dismiss them. To the extent Beeman's "Specific Affidavit of Negative Averment, Opportunity to Cure, and Counterclaim" constitutes an answer to the Plaintiffs' complaint, Plaintiffs have filed a motion to strike the answer as untimely. Also pending before the Court, of course, is the Government's original complaint to enforce the IRS summons. After considering the appropriate standards of review and the relevant background facts, I will address each of these matters in turn.
Pro se pleadings, "however inartfully pleaded," must be held to "less stringent standards than formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519, 520-521(1972). If the court can reasonably read pleadings to state a valid claim on which the litigant could prevail, it should do so despite failure to cite proper legal authority, confusion of legal theories, poor syntax and sentence construction, or litigant's unfamiliarity with pleading requirements. Boag v. MacDougall, 454 U.S. 364 (1982); United States ex rel. Montgomery v. Bierley, 141 F.2d 552, 555 (3d Cir. 1969) (petition prepared by a prisoner may be inartfully drawn and should be read "with a measure of tolerance"); Smith v. U.S. District Court, 956 F.2d 295 (D.C. Cir. 1992); Freeman v. Department of Corrections, 949 F.2d 360 (10th Cir. 1991). Under our liberal pleading rules, during the initial stages of litigation, a district court should construe all allegations in the pleadings in favor of the complainant. Gibbs v. Roman, 116 F.3d 83 (3d Cir. 1997). See, e.g., Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996)(discussing Fed.R.Civ.P. 12(b)(6) standard); Markowitz v. Northeast Land Company, 906 F.2d 100, 103 (3d Cir. 1990)(same). Because Beeman is proceeding pro se in this case, the foregoing standards will be applied.
In reviewing a motion to dismiss filed pursuant to Federal Rule of Civil Procedure 12(b)(6), the claims at issue must be viewed in the light most favorable to the complainant and all the well-pleaded allegations must be accepted as true. Erickson v. Pardus, 551 U.S. 89, 95 (2007). A complaint must be dismissed pursuant to Rule 12(b)(6) if it does not allege "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007) (rejecting the traditional 12(b)(6) standard set forth in Conley v. Gibson, 355 U.S. 41 (1957)). See also Ashcroft v. Iqbal, ___ U.S. ___, ___, 129 S.Ct. 1937 (May 18, 2009) (specifically applying Twombly analysis beyond the context of the Sherman Act).
A court need not accept inferences drawn by the plaintiff if they are unsupported by the facts as set forth in the complaint. See California Pub. Employee Ret. Sys. v. The Chubb Corp., 394 F.3d 126, 143 (3d Cir. 2004) (citing Morse v. Lower Merion School Dist., 132 F.3d 902, 906 (3d Cir. 1997)). Nor must a court accept legal conclusions set forth as factual allegations. Twombly, 550 U.S. at 556 (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). See also McTernan v. City of York, Pennsylvania, 577 F.3d 521, 531 (3d Cir. 2009)("[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.") (quoting Iqbal, ___ U.S. at ___, 129 S.Ct. at 1949) (alteration in the original). A plaintiff's factual allegations "must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 556. Although the United States Supreme Court does "not require heightened fact pleading of specifics, [the Court does require] enough facts to state a claim to relief that is plausible on its face." Id. at 570.
In other words, at the motion to dismiss stage, a plaintiff is "required to make a 'showing' rather than a blanket assertion of an entitlement to relief." Smith v. Sullivan, 2008 WL 482469, at *1 (D. Del. February 22, 2008) (quoting Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008)). "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 of the necessary element." Phillips, 515 F.3d at 232 (quoting Twombly, 550 U.S. at 556 n.3).
Recently, the Third Circuit expounded on the Twombly/Iqbal/Phillips line of cases:
To prevent dismissal, all civil complaints must now set out sufficient factual matter to show that the claim is facially plausible. This then allows the court to draw the reasonable inference that the defendant is liable for the alleged misconduct.
After Iqbal, when presented with a motion to dismiss for failure to state a claim, district courts should conduct a two-part analysis. First, the factual and legal elements of a claim should be separated. The district court must accept all of the complaint's well-pleaded facts as true, but may disregard any legal conclusions. 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. In other words, a complaint must do more than allege the plaintiff's entitlement to relief. A complaint has to show such an entitlement with its facts. As the Supreme Court instructed in Iqbal, where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged - but it has not shown - that the pleader is entitled to relief. This plausibility requirement will be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.
Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009).
C. Motion for Summary Judgment
Federal Rule of Civil Procedure 56(c)(2) provides that summary judgment shall be granted if the "pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Rule 56(e) further provides that when a motion for summary judgment is made and supported, "an opposing party may not rely merely on allegations or denials in its own pleading; rather, its response must -- by affidavits or as otherwise provided in this rule -- set out specific facts showing a genuine issue for trial. If the opposing party does not so respond, summary judgment should, if appropriate, be entered against that party."
A district court may grant summary judgment for the defendant when the plaintiff has failed to present any genuine issues of material fact. See Fed. R. Civ. P. 56(c); Krouse v. American Sterilizer Company, 126 F.3d 494, 500 n.2 (3d Cir. 1997). The moving party has the initial burden of proving to the district court the absence of evidence supporting the non-moving party's claims. Celotex Corp. v. Catrett, 477 U.S. 317 (1986); Country Floors, Inc. v. Partnership Composed of Gepner and Ford, 930 F.2d 1056, 1061 (3d Cir. 1990). Further, "[R]ule 56 enables a party contending that there is no genuine dispute as to a specific, essential fact 'to demand at least one sworn averment of that fact before the lengthy process of litigation continues.'" Schoch v. First Fidelity Bancorporation, 912 F.2d 654, 657 (3d Cir. 1990) (quoting Lujan v. National Wildlife Federation, 497 U.S. 871 (1990)).
The burden then shifts to the non-movant to come forward with specific facts showing a genuine issue for trial. Matsushita Elec. Indus. Company v. Zenith Radio Corp., 475 U.S. 574 (1986); Williams v. Borough of West Chester, Pa., 891 F.2d 458, 460-461 (3d Cir. 1989) (the non-movant must present affirmative evidence - more than a scintilla but less than a preponderance - which supports each element of his claim to defeat a properly presented motion for summary judgment). The non-moving party must go beyond the pleadings and show specific facts by affidavit or by information contained in the filed documents (i.e., depositions, answers to interrogatories and admissions) to meet his burden of proving elements essential to his claim. Celotex, 477 U.S. at 322; Country Floors, 930 F.2d at 1061.
A material fact is a fact whose resolution will affect the outcome of the case under applicable law. Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 248 (1986). Although the court must resolve any doubts as to the existence of genuine issues of fact against the party moving for summary judgment, Rule 56 "does not allow a party resisting the motion to rely merely upon bare assertions, conclusory allegation or suspicions." Firemen's Ins. Company of Newark, N.J. v. DuFresne, 676 F.2d 965, 969 (3d Cir. 1982). Summary judgment is only precluded if the dispute about a material fact is "genuine," i.e., if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson, 477 U.S. at 247-249.
In this case, Arndt and Pattison filed their motion for summary judgment supported by affidavits which set forth the relevant factual history. Beeman was ordered to submit a response to this motion and, on December 18, 2009, he filed a document containing two subheadings, to wit, "Specific Affidavit of Negative Averment, Opportunity to Cure, and Counterclaim" and "Brief in Support of [Third Party-] Plaintiff's Motion for Summary Judgment" [sic].*fn2 As will be explained in more detail below, this document does not raise any genuine dispute as to the facts outlined in the motion for summary judgment filed by Arndt and Pattison. Accordingly, those facts stand unrebutted and they form the basis of the Court's background discussion below.
This matter arises out of an investigation the IRS conducted relative to Beeman's apparent failure to file federal income tax returns and/or pay delinquent federal income tax liabilities for numerous tax years. Revenue Officer Pattison was assigned to the case when it was transferred to him on October 19, 2007. Pattison conducted a full analysis of the matter on October 23, 2007. At the time of receipt into his inventory, the case involved unfiled income tax returns for the years 2000, 2001, 2002, 2005, and 2006 and unpaid income taxes for the years 1994, 1995, 1996, 1997, 2003, and 2004. (Decl. of Edson Pattison, Ex. 1 to Br. in Support of Mot. of the United States for Summ. Judg. [15-2] at ¶ 3.) At the time the case was assigned to Pattison, the IRS held a lien against Beeman in the amount of $1,729,371.71. (Id. at ¶ 4.)
During the course of the following year, Beeman filed the 2005 and 2006 income tax returns showing taxes owed in the respective amounts of $180.00 and $397.00 and a 2002 income tax return with a tax balance of $3,462.00. Interest and penalties were assessed on these unpaid balances. (Pattison Decl. at ¶ 4.) Consequently, as of October 11, 2008, when Beeman's 2002 federal income tax return was filed (id.), his case involved unfiled tax returns for the years 2000 and 2001 and unpaid tax liabilities for the years 1994-1997 and 2002-2006.
Part of Pattison's duties as Revenue Officer include the filing of notices of federal tax liens in order to protect the Government's interest when taxes are owed and remain unpaid. (Pattison Decl. at ¶ 5.) To accomplish the task of filing a Notice of Federal Tax Lien, the IRS agent inputs and/or verifies the relevant information on the Integrated Collection System and then requests that the lien be filed in the county where the taxpayer has his or her permanent address. (The lien is also recorded in any county where the taxpayer owns real estate, if different from the county of residence.) (Id.)
In this case, Beeman's 2005 and 2006 tax returns were assessed on July 14, 2008 and Beeman was given notice of the assessment and demand for payment that same day. (Pattison Decl. at ¶ 6.) Following Beeman's failure to pay his tax liability, a Notice of Federal Tax Lien was filed on either July 28 or August 8, 2008. (Id at ¶¶ 5-6.)*fn3
Similarly, after Beeman's 2002 tax return was assessed on December 1, 2008, notice of the assessment and demand for payment were given that same day. (Pattison Decl. at ¶ 6.) Following Beeman's failure to pay the tax liability, a Notice of Federal Tax Lien was filed on January 20, 2009. (Id.)
As part of the foregoing process, the lien notices were sent to Beeman by the IRS's Centralized Lien Unit. (Pattison Decl. at ¶ 6.) The notices were presumably received by Beeman, inasmuch as they were never returned as undeliverable. (Id. at ¶ 8.)
On February 27, 2009, Beeman's collection case was reassigned to Revenue Officer Mary Arndt, who conducted a full analysis on April 16, 2009. At the time of receipt into her inventory, the case involved unfiled income tax returns for the years 2000 and 2001 and unpaid income taxes for the years 1994-1997 and 2002-2006. (Decl. of Mary Arndt, Ex. 2 to Br. in Support of Mot. of the United States for Summ. Judg. [15-2] at ¶¶ 3, 5.)
Arndt determined that Beeman had submitted a timely Form 12153 ("Request for a Collection Due Process or Equivalent Hearing under IRC 6320") relative to the Notice of Federal Tax Lien which had been recorded in Erie County on January 20, 2009 and which related to tax year 2002. Arndt forwarded this Form 12153 ...