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Berg v. Yellow Transportation

March 3, 2006

DARRELL SCOTT BERG, PLAINTIFF,
v.
YELLOW TRANSPORTATION, INC. DEFENDANT.



The opinion of the court was delivered by: Gary L. Sharpe U.S. District Judge

DECISION AND ORDER

I. Introduction

Plaintiff pro se Darrell Scott Berg brings this suit alleging improper withholding of (1) federal taxes, (2) New York State taxes, and (3) amounts to satisfy a levy for past unpaid taxes. Defendant Yellow Transportation, Inc., moves for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c), claiming that Berg's claims are barred by the Internal Revenue Code (IRC) and New York Tax Law. In addition, Yellow contends that sanctions should be imposed on Berg. Berg moves for remand to state court pursuant to 28 U.S.C. § 1447 (2005). For the reasons that follow, the court reserves on the sanction issue, Yellow's motion for judgment on the pleadings is GRANTED, and Berg's motion for remand is DENIED.

II. Procedural History

On September 8, 2005, Berg filed a complaint in the Supreme Court of New York, Ulster County, alleging, inter alia, that Yellow wrongfully withheld Federal Income Tax, Medicare Tax, Social Security Tax, New York Withholding Tax, and an amount labeled "Garnish/CS" in satisfaction of a tax levy by the Internal Revenue Service. See Not. of Removal, Ex. A, Pl. Compl., pp. 2-5; Dkt. No. 1. On October 11, 2005, Yellow removed the action based on federal question jurisdiction. Id. The case was removed pursuant to 29 U.S.C. § 1441 (2005), and Yellow filed an answer on October 14. See Dkt. No. 3. The subject motions followed.

III. Facts

From August 27, 1999 to the present, Berg was continuously employed by Yellow Transportation, Inc., on a weekly basis. Pl. Compl. ¶ 6; Dkt. No. 1. During that time, Yellow paid earnings to Berg on a weekly basis. Id. ¶ 8. Also during that time, Yellow made deductions from Berg's earnings on a weekly basis. Id. ¶ 9. Among those deductions were Federal Income Tax, Medicare Tax, Social Security Tax, New York Withholding Tax, and an amount labeled "Garnish/CS" in satisfaction of a tax levy by the Internal Revenue Service. Id. ¶¶ 10-24.

IV. Analysis

A. Motion for Judgment on the Pleadings Standard

In deciding a Rule 12(c) motion for judgment on the pleadings, the court applies the same standard as is used in deciding a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6). See Greco v. Trauner, Cohen & Thomas, L.L.P., 412 F.3d 360, 363 (2d Cir. 2005). Federal Rule of Civil Procedure 12(b)(6) provides that a cause of action shall be dismissed if a complaint fails "to state a claim upon which relief can be granted." In other words, the court should dismiss the complaint pursuant to Rule 12(b)(6) if "it appears beyond doubt that the plaintiff can prove no set of facts in support of the complaint which would entitle him to relief." Phelps v. Kapnolas, 308 F.3d 180,184 (2d Cir. 2002) (citation omitted). The court's task "in ruling on a Rule 12(b)(6) motion is merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof."Levitt v. Bear, Stearns & Co., 340 F.3d 94, 101 (2d Cir. 2003) (citation and internal quotation marks omitted). Therefore, in reviewing a motion to dismiss, a "court must accept the material facts alleged in the complaint as true and construe all reasonable inferences in the plaintiff's favor." Phelps, 308 F.3d at 184 (citations omitted).

B. Berg's Motion for Remand

As an initial matter, before addressing Yellow's substantive arguments, the court must consider whether it has appropriate federal question jurisdiction over Berg's claims. Berg contends that it does not.

28 U.S.C. § 1447(c) (2005) authorizes a remand "on the basis of any defect in removal procedure or because the district court lacks subject matter jurisdiction." LaFarge Coppee v. Venezolana De Cementos, S.A.C.A., 31 F.3d 70, 72 (2d Cir. 1994). "On a motion to remand, the party seeking to sustain the removal, not the party seeking remand, bears the burden of demonstrating that removal was proper." Wilds v. UPS, Inc., 262 F. Supp. 2d 163, 170 (S.D.N.Y. 2003). "Where, as here, jurisdiction is asserted by a defendant in a removal petition, it follows that the defendant has the burden of establishing that removal is proper.... Unless that burden is met, the case must be remanded back to state court." Id.

"The basic rules for the removal of cases from state court to federal court are well settled. An action which was originally filed in state court may be removed by a defendant to federal court only if the case could have been originally filed in federal court." Id. A basis for jurisdiction exists absent diversity jurisdiction if the claims arise under federal law. Id. "The presence or absence of federal-question jurisdiction is governed by the 'well-pleaded complaint rule,' which provides that federal jurisdiction exists only when a federal question is presented on the face of the plaintiff's properly pleaded complaint." Caterpillar, Inc. v. ...


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