The opinion of the court was delivered by: Gary L. Sharpe Chief Judge
MEMORANDUM-DECISION AND ORDER
Plaintiff Candice M. Killion commenced this diversity action under 28 U.S.C. § 1332, asserting claims against defendant New York State Department of Taxation and Finance ("the Department") regarding its assessment and collection of certain New York State taxes. (See Compl., Dkt. No. 1.) Pending is the Department's motion to dismiss pursuant to both Fed. R. Civ. P. 12(b)(1) and (b)(6). (See Dkt. No. 5.) For the reasons that follow, the motion is granted.
In 1982, Killion's father created TAK, Inc., a
corporation, ostensibly operating as a construction company. (See
¶¶ 6-7.) Killion "performed various bookkeeping functions for TAK but,
otherwise, had no decision making authority," and she left the company
in 1993 as it was failing. (Id. ¶¶ 7-9.) TAK ceased operation in 1994
and, in the same year, the Department notified TAK that it would be
audited regarding its business activity in New York State. (See id. ¶¶
10, 15.) An auditor "ultimately deemed TAK liable for . . . taxes it
failed to collect" from certain New York clients. (Id. ¶¶ 16, 19.) That finding was challenged
by TAK, which eventually requested a conciliation hearing.*fn2
(See id. ¶¶ 20-28.) Despite TAK's request, the Department
demanded payment of the delinquent taxes and, eventually, issued a tax
warrant for unpaid sales tax. (See id. ¶¶ 29, 31.)
In 1995, Killion filed for bankruptcy under Chapter 7, and, in 1996, she was issued a discharge injunction from the Bankruptcy Court in the District of Massachusetts. (See id. ¶ 12.) Killion later moved to reopen the bankruptcy proceeding in 2004 for the purpose of including the Department as a creditor; that motion was granted and the Department was added to Schedule F. (See id. ¶ 13; Dkt. No. 1, Attach. 1 at 5.) Killion "[t]hereafter . . . received a bankruptcy discharge . . . as to any obligation to the State of New York, including any outstanding taxes." (Compl. ¶ 14.)
Notwithstanding the discharge injunction issued by the Bankruptcy Court, the Department began collection, including "levies against [Killion's] employer, credit union, and bank accounts." (Id. ¶ 34.) In 2011, Killion's counsel advised the Department by letter of the underlying bankruptcy and "demanded that the State of New York forever cease its collection efforts against [Killion]." (Id. ¶ 38; see Dkt. No. 1, Attach. 1 at 1-2.) To date, the Department has successfully collected in excess of $4,583.00 from Killion as a result of its efforts. (See Compl. ¶ 40.)
Killion commenced this action asserting five claims against the Department. (See Compl. ¶¶ 46-59.) The first of Killion's claims seeks preliminary and permanent injunctions enjoining the Department from further collecting any tax from her, (see Compl. ¶¶ 46-47); the second, a declaration that she owes no tax to the Department "on account of the running of the relevant statute of limitations," (id. ¶¶ 48-49); the third, that the Department be held in contempt for violating the discharge injunction, (see id. ¶¶ 50-54); the fourth, damages for conversion, (see id. ¶¶ 55-57); and the fifth, damages for unjust enrichment, (see id. ¶¶ 58-59). Before answering the complaint, the Department moved to dismiss for lack of subject matter jurisdiction and failure to state a claim upon which relief can be granted. (See Dkt. No. 5.)
The standard of review under Rules 12(b)(1) and 12(b)(6), which are "substantively identical", Lerner v. Fleet Bank, N.A., 318 F.3d 113, 128 (2d Cir. 2003), are well settled and will not be repeated. For a full discussion of those standards, the parties are referred to the court's decisions in Unangst v. Evans Law Assocs., P.C., 798 F. Supp. 2d 409, 410 (N.D.N.Y. 2011), and Ellis v. Cohen & Slamowitz, LLP, 701 F. Supp. 2d 215, 218 (N.D.N.Y. 2010), respectively.
The Department tersely argues that all of the claims asserted in the
complaint are barred by the Eleventh Amendment. (See Dkt. No. 5,
Attach. 1 at 2.) Killion counters that the Eleventh Amendment does not
bar her first and second claims for injunctive relief and declaratory
judgment because both seek relief that is prospective in nature-an
exception to sovereign immunity. (See Dkt. No. 10 at 1-2.) As to her
third cause of action, which seeks damages for "a significant
violation of the discharge injunction imposed on [the Department],"
Killion asserts that Congress has "abrogate[d] state sovereign
immunity in the Bankruptcy Code," making "violations of . . ...