Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Melanie M. Manning v. James J. Haggerty; Jason Holly

September 28, 2011


The opinion of the court was delivered by: Judge Munley


Before the court is defendants' motion to dismiss. (Doc. 5). Also before the court is plaintiff's competing motions to amend her complaint, join an additional plaintiff, and disqualify defendants' attorney. (Doc. 23). Having been fully briefed, the matter is ripe for disposition.


This case arises from the alleged events preceding a state court lawsuit between the parties. The court will consider the facts as presented in plaintiff's pleadings in the light most favorable to the plaintiff.*fn1

Plaintiff Melanie M. Manning (hereinafter "plaintiff"), a citizen of Luzerne County Pennsylvania, was the sole owner and operator of the El Humidor cigar tobacco store (hereinafter the "cigar store") in Wilkes Barre, PA. (Doc 1, Compl. ¶¶ 4, 9). On November 17, 2009, plaintiff sold her business and its assets to Defendants Jason Holly, Menechem Gansburg, and Tabacalera Republica, Inc. (hereinafter "defendant-purchasers") for $118,500. (Id. ¶ 10). The payment terms called for a one time payment of $100,000 and quarterly payments of $4,625 commencing January 1, 2010. (Id. ¶¶ 10, 15). Plaintiff retained the corporate entity of "El Humidor." (Id. ¶ 10). The defendant-purchasers made the required cash payment and all ownership rights and assets on the premises became their property. (Id. ¶ 11).

After the November 17, 2009 sale, plaintiff ceased involvement in the operation of the cigar store; however, plaintiff, defendant-purchasers, and the cigar store manager, Adam Zwolinsky, agreed that mail addressed to plaintiff or El Humidor would be placed in a separate box for plaintiff to periodically collect. (Doc. 16, Am. Compl. ¶¶ 10-12). Zwolinsky, who stayed on as the cigar store manager through the transition, allegedly observed Defendant Holly search through and take letters out of Manning's mail box.*fn2 (Id. ¶ 13). Describing one specific instance, Zwolinsky states that Holly "picked out a letter addressed to Melanie Manning which had the [Internal Revenue Service] logo on the envelope, and opened it. He then flaunted the letter openly in the store among myself, employees, and a few patrons, exclaiming that Mrs. Manning owed around $10,000 to the government in back taxes." (Id.)
Defendant-purchasers did not make the first quarterly payment of $4,625 due on January 1, 2010. (Doc 1, Compl. ¶ 15). The second $4,625 payment was similarly withheld on April 1, 2010. (Id. ¶ 17). El Humidor filed suit against defendant-purchasers on April 5, 2010 in the Pennsylvania Court of Common Pleas of Luzerne County. (Id. ¶ 18). El Humidor sought money damages and a preliminary injunction to block the relocation of the cigar store. (Id.) Defendant James Haggerty represented defendant-purchasers in the Luzerne County action. (Id.)

The Honorable Joseph J. Van Jura held a hearing on El Humidor's motion for an injunction on April 15, 2010. (Id. ¶ 19). At the hearing, Defendant Haggerty offered into evidence a November 23, 2009 letter addressed to Melanie Manning from the Internal Revenue Service ("IRS"). (Id.) The letter contains information about potential liens and tax liability. (Doc. 1, Ex. B, IRS Letter). Defendant Haggerty also presented an unsigned letter from Defendant Holly to Melanie Manning at the April 15, 2010 hearing. (Doc 1, Compl. ¶ 19). This letter is dated December 29, 2009 and contains, among other things, a request for plaintiff to pay the federal tax lien. (See Doc. 16, Ex. B, Letter to Manning from Holly). Plaintiff disclaims having ever received this letter, and argues that defendants obtained that information from the IRS letter. (Doc 1, Compl. ¶ 19). Plaintiff asserts that the tax lien was paid sometime after the November 17, 2009 sale of the cigar store. (Id. ¶ 20). At the conclusion of the April 15 hearing, the court denied El Humidor's motion for a preliminary injunction and lifted the temporary restraining order that had been in place. (Id. ¶ 21).

Over time, plaintiff realized that other mail she should have received never arrived, including correspondence with state tax authorities concerning settlement of the amount due for sales tax from El Humidor. (Id. ¶ 27). Plaintiff contends that the introduction of the purloined letter damaged her. (Id. ¶ 28).

Plaintiff filed the instant complaint on February 11, 2011. The complaint seeks an order from the court requiring defendants to deliver immediately to plaintiff all mail in their possession addressed to the plaintiff. The complaint also seeks actual and punitive damages against the defendants. After being served with the complaint, defendants filed the instant motion to dismiss. Plaintiff opposed defendants' motion to dismiss and, subsequent to filing briefs in opposition to defendants' motion to dismiss, plaintiff filed a motion requesting the court for leave to amend her complaint. The parties then briefed the issues, bringing the case to its present posture. Jurisdiction Plaintiff asserts claims under several federal statutes, including 18 U.S.C. §§ 371, 1702, 1708and 26 U.S.C. §§6103, 7213, 7431.*fn3 The court has jurisdiction pursuant to 28 U.S.C. § 1331, which provides that '[t]he district court shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States."

Legal Standard

Defendant brings this motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Rule 12(b)(1) mandates dismissal of the complaint when the court "lack[s] subject-matter jurisdiction." FED. R. CIV. P. 12(b)(1). In determining whether the court has subject-matter jurisdiction, the court must decide "whether the allegations on the face of the complaint, taken as true, allege facts sufficient to invoke the jurisdiction of the district court." Taliaferro v. Darby Twp. Zoning Bd., 458 F.3d 181, 188 (3d Cir. 2006) (citations omitted). "Challenges to subject matter jurisdiction under Rule 12(b)(1) may be 'facial' or 'factual.'" Turicentro v. Am. Airlines, 303 F.3d 293, 300 n.4 (3d Cir. 2002). A facial attack serves to "contest the sufficiency of the pleadings, and the trial court must accept the complaint's allegations as true." Id. If the attack is factual, the court "accords plaintiff's allegations no presumption of truth. In a factual attack, the court must weigh the evidence relating to jurisdiction, with discretion to allow affidavits, documents, and even limited evidentiary hearings." Id.

When a defendant files a motion pursuant to Rule 12(b)(6), all well-pleaded allegations of the complaint must be viewed as true and in the light most favorable to the non-movant to determine whether "under any reasonable reading of the pleadings, the plaintiff may be entitled to relief." Colburn v. Upper Darby Twp., 838 F.2d 663, 665-66 (3d Cir. 1988) (quoting Estate of Bailey by Oare v. Cnty. of York, 768 F.2d 503, 506 (3d Cir. 1985)). The court may also consider "matters of public record, orders, exhibits attached to the complaint and items appearing in the record of the case." Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 n.2 (3d Cir. 1994) (citations omitted). The court does not have to accept legal conclusions or unwarranted factual inferences. See Curay-Cramer v. Ursuline Acad. of Wilmington, Del., Inc., 450 F.3d 130, 133 (3d Cir. 2006) (citing Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997)).

The federal rules require only that plaintiff provide "'a short and plain statement of the claim showing that the pleader is entitled to relief,'" a standard which "does not require 'detailed factual allegations,'" but a plaintiff must make "'a showing, rather than a blanket assertion, of entitlement to relief' that rises 'above the speculative level.'" McTernan v. City of York, 564 F.3d 636, 646 (3d Cir. 2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007)). The "complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570). Such "facial ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.