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Allen Brunwasser v. Barbara Black

January 26, 2011

ALLEN BRUNWASSER, PLAINTIFF,
v.
BARBARA BLACK, ROBERT J. HANNEN,
DEFENDANTS.



The opinion of the court was delivered by: Arthur J. Schwab United States District Judge

ELECTRONICALLY FILED

Memorandum Opinion on Motion for Judgment on the Pleadings (doc. no. 8), Motion to Vacate (for Recusal) (doc. no. 9), Motion to Remand (doc. no. 11) and Motion for Reconsideration (doc. no. 12)

I.Introduction/Factual Background

The current civil action was filed by pro se plaintiff, Allen Brunwasser, a very experienced attorney, seeking to recover alleged damages arising from Citizen's Banks execution of an IRS tax levy. Plaintiff, who has a long and storied history of pursuing legal causes within the Western District of Pennsylvania, was most recently the plaintiff in a prior related civil action before this Court in Brunwasser v. Lebryk, et al. 10-cv-307. In the prior action, plaintiff sought inter alia to enjoin Citizens Bank from surrendering certain deposited funds in response to a levy that had been served by the IRS on March 15, 2010. This Court originally granted a temporary stay of the IRS levy pending a ruling on a motion to dismiss in 10-cv-307. On June 9, 2010, the Court issued a memorandum opinion and order dismissing plaintiff's complaint for lack of jurisdiction and failure to state a claim. The Court determined that defendants were immune from liability under the Anti-Injunction Act. At that time, the Court also terminated the temporary stay of the levy. Plaintiff did not file any appeal from the district court's final judgment, and he did not file any further motion to enjoin execution of the levy pending appeal.

Consistent with the rulings of this Court, on June 11, 2010, Citizens Bank, allegedly through its employees, defendants herein, complied with the IRS tax levy by mailing a check to the IRS in the amount of $19,517.47.

Plaintiff has now filed a new complaint in state court against two individuals who were allegedly involved in the IRS levy on behalf of Citizens Bank: (1) Barbara Black, who is an employee of Citizens Bank; and (2) Robert J. Hannen, an attorney for Citizens Bank, who was counsel of record in 10-cv-307. Plaintiff now alleges that the current defendants,

Barbara Black and Robert J. Hannen, acting as a cooperating with each other team [sic], abandoned their mere stake-holder impartial status to intentionally and contrary to law damage plaintiff in the CV 10-307 litigation and to illegally and intentionally interfere and deprive him of established legal and contractual protections, rights and remedies and did so in cooperation with the IRS and United States actors who wielded government power.

Doc. No. 1-1 at 10.

Defendants filed a notice of removal on January 1, 2001, after filing answers to the complaint (doc. nos. 5 and 6), now seek judgment on the pleadings under Fed. R. Civ. Pro. 12(c) (doc. no. 8), on the basis that: (1) they are immune from liability for any claim arising from the Bank's compliance with the IRS levy; and, (2) the undisputed facts establish that Citizens Bank (and its agents) had a mandatory obligation to pay the IRS tax levy under 26 U.S.C. § 6332; and therefore, this Court should enter judgment in defendants' favor as a matter of law.

On January 25, 2011, the day the response to the motion for judgment on the pleadings was due, plaintiff now files a motion to remand this case to state court, and a handwritten motion for reconsideration of the January 18, 2011 Order scheduling the response for this date (doc. nos. 11 and 12). Although the handwritten motion is hardly legible, it appears that pro se plaintiff asks this Court to first rule on his motion for remand and "abstain" from ruling on defendants' motion for judgment on the pleadings. The Court will deny defendant's motion for remand for the reasons set forth hereinbelow, and his motion for reconsideration will also be denied.

II.Standard of Review

A motion for judgment on the pleadings under Rule 12(c) is considered using the same standards as when considering a motion to dismiss under Rule 12(b)(6). Shelly v. Johns-Manville Corp., 798 F.2d 93, 97 n. 4 (3d Cir.1986). A complaint should be dismissed pursuant to Rule 12(b)(6) if the alleged facts, taken as true, fail to state a claim. Fed.R.Civ.P. 12(b)(6); see In re Warfarin Sodium, 214 F.3d 395, 397-98 (3d Cir.2000). AWhile a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the >grounds' of his >entitlement to relief requires more than labels and conclusions, and a formulaic recitation of a cause of action's elements will not do.@ Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (internal citations omitted). Thus, a motion to dismiss should be granted unless the plaintiff's factual allegations are Aenough to raise a right to relief above the speculative level on the assumption that all of the complaint's allegations are true (even if doubtful in fact).@ Id. at 1965 (internal citations omitted).

When deciding a motion to dismiss pursuant to Rule 12(b)(6), only the allegations in the complaint, matters of public record, orders, and exhibits attached to the complaint, are taken into consideration. Chester County Intermediate Unit v. Pa. Blue Shield, 896 F.2d 808, 812 (3d Cir.1990). A district court must accept as true all allegations in the complaint and all reasonable inferences that can be drawn therefrom. See Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 (3d Cir.1994). Moreover, these allegations and inferences must be viewed in the light most favorable to the plaintiff. Id. However, a court need not accept A >unsupported conclusions and unwarranted inferences,= A Baraka v. McGreevey, 481 F.3d 187, 195 (3d Cir.2007) (citation omitted), and A[l]egal conclusions made in the guise of factual allegations ... are given no presumption of truthfulness,@ Wyeth v. Ranbaxy Labs., Ltd., 448 F.Supp.2d 607, 609 (D.N.J.2006) (citing Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986)); see also Kanter v. Barella, 489 F.3d 170, 177 (3d Cir.2007) (quoting Evancho v. Fisher, 423 F.3d 347, 351 (3d Cir.2005)) (A[A] court need not credit either >bald assertions' or >legal conclusions' in a complaint when deciding a motion to dismiss .@)

It is not necessary for the plaintiff to plead evidence. Bogosian v. Gulf Oil Corp., 561 F.2d 434, 446 (3d Cir.1977). The question before the court is not whether the plaintiff will ultimately prevail. Watson v. Abington Twp., 478 F.3d 144, 150 (3d Cir.2007). Instead, the court simply asks whether the plaintiff has articulated Aenough ...


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