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SCHULOFF v. QUEENS COLLEGE FOUND.

March 10, 1998

ANITA SCHULOFF, Plaintiff, against QUEENS COLLEGE FOUNDATION, INC., Defendant. ANITA SCHULOFF, Plaintiff, -against- BROOKLYN COLLEGE FOUNDATION, INC., Defendant.


The opinion of the court was delivered by: BLOCK

 BLOCK, District Judge:

 The above-captioned cases both involve the identical legal issue -- whether plaintiff Anita Schuloff ("Schuloff") has a private cause of action pursuant to 26 U.S.C. § 6104 based upon the defendants' failure to make their federal tax returns immediately available for her inspection. Defendants Queens College Foundation, Inc. ("Queens College Foundation") and Brooklyn College Foundation, Inc. ("Brooklyn College Foundation") are represented by the same law firm, and both have moved to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(1), or, in the alternative, Federal Rule of Civil Procedure 12(b)(6). The pending motions to dismiss are hereby consolidated for disposition. For the reasons set forth below, defendants' motions to dismiss are granted pursuant to Rule 12(b)(6), and the complaints dismissed.

 Both cases arise out of a similar set of facts. On July 25, 1996, Schuloff sent a letter to the Queens College Foundation indicating that she intended to come to Queens College the following week to inspect the Queens College Foundation's tax returns. By letter dated July 31, 1996, Executive Director Mario John Della Pina advised Schuloff that her request to inspect the records should be directed to the appropriate offices of the Internal Revenue Service ("IRS"). Less than one week later, Schuloff commenced the action entitled Anita Schuloff v. Queens College Foundation, Inc. (96-CV-3879). The complaint, which, inter alia, seeks $ 55,000 in compensatory and $ 500,000 in punitive damages, alleges that the Queens College Foundation violated 26 U.S.C. § 6104, which requires certain tax-exempt organizations to make their tax returns available for public inspection. Schuloff also alleges that this conduct gives rise to a claim under 42 U.S.C. § 1983 and the New York Freedom of Information Law, N.Y. Public Officers Law § 84 et seq. It is uncontested that on August 19, 1996, attorneys for the Queens College Foundation sent Schuloff's attorney copies of the Form 990s that the Queens College Foundation had filed with the IRS for the preceding five years. However, Schuloff has not discontinued this action and still seeks damages based upon the failure of the Queens College Foundation to make the records available to her immediately.

 On November 5, 1996, Schuloff sent a letter to the Brooklyn College Foundation requesting copies of its three most recent tax returns. On December 26, 1996, Schuloff visited the offices of the Brooklyn College Foundation and was not permitted to inspect the tax returns. She commenced the action entitled Anita Schuloff v. Brooklyn College Foundation, Inc. (96-CV-6310) later that day. Like her complaint against the Queens College Foundation, her complaint against the Brooklyn College Foundation contains claims based upon 26 U.S.C. § 6104, 42 U.S.C. § 1983, and New York State law. Schuloff seeks, inter alia, $ 10,000 in compensatory damages and $ 250,000 in punitive damages. It is uncontested that on March 13, 1997, the Brooklyn College Foundation mailed copies of its three most recent tax forms to Schuloff's counsel; however, Schuloff has not discontinued her action against this defendant.

 DISCUSSION

 I. Standard on a Motion to Dismiss

 Defendants move to dismiss the complaints pursuant to Rule 12(b)(1) based upon a lack of subject matter jurisdiction, and, alternatively, pursuant to Rule 12(b)(6) based upon Schuloff's alleged failure to state a claim upon which relief can be granted. The Second Circuit has indicated that a case should be dismissed for lack of subject matter jurisdiction "only under narrow circumstances." Nowak v. Ironworkers Local 6 Pension Fund, 81 F.3d 1182, 1188 (2d Cir. 1996). "'The test is whether the complaint on its face, without resort to extraneous matter, is so plainly insubstantial as to be devoid of any merits and thus not presenting any issue worthy of adjudication.'" Cushing v. Moore, 970 F.2d 1103, 1106 (2d Cir. 1992)(quoting Giulini v. Blessing, 654 F.2d 189, 192 (2d Cir. 1981)); see also Hagans v. Lavine, 415 U.S. 528, 536-538, 39 L. Ed. 2d 577, 94 S. Ct. 1372 (1974).

 The Court concludes that the complaints herein are not so "plainly insubstantial" as to warrant their dismissal for lack of subject matter jurisdiction. Both the Supreme Court and the Second Circuit have equated insubstantiality with frivolousness. See Hagans, 415 U.S. at 537; Monsky v. Moraghan, 127 F.3d 243, 245 (2d Cir. 1997) ("A non-frivolous allegation of a cause of action under federal law suffices to invoke federal court jurisdiction."). In an August 5, 1997 order denying a motion by the Queens College Foundation for Rule 11 sanctions against Schuloff, the Court determined that Schuloff's § 6104 claim is not frivolous, as the Second Circuit has not yet addressed whether a private citizen has standing to commence an action pursuant to that statute. Accordingly, the Court determines that it possesses subject matter jurisdiction over these cases, and will therefore proceed based upon defendants' alternative argument that the complaints should be dismissed pursuant to Rule 12(b)(6) because they fail to state a claim for which relief can be granted.

 A complaint will be dismissed pursuant to Rule 12(b)(6) "only if it appears that [the plaintiff] can prove no set of facts, consistent with its complaint, that would entitle it to relief." Electronics Communications Corp. v. Toshiba America Consumer Products, Inc., 129 F.3d 240, 242-243 (2d Cir. 1997). "The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support his claims." Scheuer v. Rhodes, 416 U.S. 232, 236, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974). "In ruling on defendant's motion, the court must accept as true all the factual allegations in the complaint and must draw all reasonable inferences in favor of the plaintiff." Hamilton Chapter of Alpha Delta Phi, Inc. v. Hamilton College, 128 F.3d 59, 63 (2d Cir. 1997).

 II. 26 U.S.C. § 6104

 Section 6104 provides, in pertinent part, that for a three-year period following the filing date for their annual tax returns, certain tax-exempt organizations must make the returns available "for inspection during regular business hours by any individual at the principal office of such organization . . ." and must provide copies of such returns without charge. 26 U.S.C. § 6104(e)(1)(A)(i), (ii). It is undisputed that both defendants failed to make their tax returns immediately available to Schuloff, as required by § 6104. However, "the fact that a federal statute has been violated and some person harmed does not automatically give rise to a private cause of action in favor of that person." Cannon v. Univ. of Chicago, 441 U.S. 677, 688, 60 L. Ed. 2d 560, 99 S. Ct. 1946 (1979). In Cort v. Ash, 422 U.S. 66, 78, 45 L. Ed. 2d 26, 95 S. Ct. 2080 (1975), the Supreme Court set forth the following four factors that should be considered in determining whether to imply a private right of action: (1) whether the plaintiff is part of the class for whose benefit the statute was enacted; (2) whether there is any indication of legislative intent, either explicit or implicit, that would either favor or oppose creation of a private remedy; (3) whether implication of a private remedy is consistent with the underlying purposes of the statute; and (4) whether the cause of action is one traditionally relegated to state law, such that it would be inappropriate to infer the existence of a federal cause of action.

 Subsequent to its decision in Cort v. Ash, the Supreme Court held that the four factors described in Cort v. Ash, although all relevant, were not entitled to equal weight. See Touche Ross & Co. v. Redington, 442 U.S. 560, 575, 61 L. Ed. 2d 82, 99 S. Ct. 2479 (1979). Rather, "the central inquiry remains whether Congress intended to create, either expressly or by implication, a private cause of action." Id.; see also Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Curran, 456 U.S. 353, 377, 72 L. Ed. 2d 182, 102 S. Ct. 1825 (1982)("Our cases subsequent to Cort v. Ash have plainly stated that our focus must be on the intent of Congress") (internal quotation omitted); Feins v. American Stock Exchange, Inc., 81 F.3d 1215, 1220 (2d Cir. 1996); Asch v. Philips, Appel & Walden, Inc., 867 F.2d 776, 777 (2d Cir. 1989). The factors relevant to determining the intent of Congress when a statute fails to provide for a private right of action are "'the language of the statute itself, its legislative history, the underlying purpose and structure of the statutory scheme, and the likelihood that Congress intended to ...


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