United States District Court, S.D. New York
OPINION AND ORDER
Vincent L. Briccetti United States District Judge.
John Vidurek and Kimberly Vidurek, proceeding pro se, bring
this action against defendants the Internal Revenue Service
("IRS"), former IRS commissioner John Koskinen,
current IRS employees Brenda Dial, John/Jane Doe,
Jonnie Melendez, Maryellen Benecke, Linda Piatek,
Jeanette Willet (collectively, the "Federal
Defendants"); Daniel Schulman, president and CEO of
PayPal Holdings Inc.; Guy Chiarello, president of First Data
Merchant Services LLC; Mary Madden, president and CEO of Hudson
Valley Federal Credit Union ("HVFCU"); Michael
Quinn, president and CEO of Rhinebeck Savings Bank
("RSB"); and Jack Dorsey, president and CEO of
Square Inc.,  for claims arising out of assessments of
and attempts to collect federal income taxes from plaintiffs.
assert claims for violations of various federal criminal
statutes, specifically, conspiracy against civil rights (18
U.S.C. § 241), deprivation of civil rights under color
of law (id. § 242), mail fraud (id. §
1341), making false statements (id. § 1001),
and the Racketeer Influenced and Corrupt Organizations Act
("RICO") (id. § 1961, et
seq.). Plaintiffs also assert state law claims for
"trespass on the case," fraud, negligence,
vindictive recklessness, abuse of process, and harassment.
(Compl. at 2).
addition, plaintiffs bring constitutional claims for due
process violations and unreasonable seizure pursuant to 42
U.S.C. § 1983, and for conspiracy to violate civil
rights under 42 U.S.C. §§ 1985 and 1986. Plaintiffs
also appear to seek civil damages for unauthorized tax
pending are four motions: (i) Michael Quinn's motion to
dismiss the complaint under Rule 12(b)(6) and for an order
enjoining plaintiffs from filing future complaints against
him and his employer (Doc. #5); (ii) Guy Chiarello's
motion to dismiss the complaint under Rules 12(b)(5) and
12(b)(6) (Doc. #8); (iii) Mary Madden's motion to dismiss
the complaint under Rule 12(b)(5) and motion for judgment on
the pleadings under Rule 12(c) (Doc. #21); and (iv) Federal
Defendants' motion to dismiss the complaint under Rules
12(b)(1), 12(b)(5), and 12(b)(6). (Doc. #35).
following reasons, the motions of Quinn, Chiarello, and the
Federal Defendants to dismiss the complaint, as well as
Madden's motion for judgment on the pleadings, are
GRANTED. Quinn's motion for a filing injunction is also
Court has subject matter jurisdiction pursuant to 28 U.S.C.
following factual background is drawn from the complaint and
the documents attached as exhibits thereto, which the Court
may consider in deciding the pending motions. See
Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d
Cir. 2002). For the purpose of deciding the pending motions,
the Court accepts as true all well-pleaded factual
allegations in the complaint and draws all reasonable
inferences in plaintiffs' favor, as summarized below.
Plaintiffs' Tax History
assert they are not subject to federal tax assessment or
collection by the IRS. Plaintiffs allege "the IRS is a
foreign corporate trust created in [the] Philippines"
and/or Puerto Rico, and the Internal Revenue Code "is
not law," but "only defines a contract between the
IRS and an individual," and "applies only to the
Philippines, Puerto Rico, District of Columbia, Virgin
Islands, Guam, Northern Mariana Islands, territories, and
insular possessions, for such items as narcotics, alcohol,
tobacco, and firearms." (Compl. at 34-35).
March 26, 2012, the IRS sent Vidurek a "Proposed Individual
Income Tax Assessment," which stated the IRS had no
record of having received an individual tax return from
Vidurek for the 2009 tax year and calculated Vidurek owed
$119, 012.13. (Compl. Ex. 1). On July 2, 2012, the IRS sent
Vidurek a "Notice of Deficiency" in the amount of
$81, 413.00 for the 2009 tax year. (Compl. Ex. 2).
13, 2012, Vidurek sent the IRS a "Notice and
Demand," in which he contested the Notice of Deficiency,
demanded the IRS correct its files as to Vidurek, and listed
various potential causes of action against the IRS. (Compl.
letter dated August 15, 2012, the IRS informed Vidurek it was
reviewing his correspondence and would contact him within
forty-five days with a reply. Plaintiff received no response.
then received an IRS notice dated December 17, 2012, stating
he owed $124, 762.43 for the 2009 tax year, which he was
required to pay by January 2, 2013, to avoid additional
penalty and interest charges. In response, on January 11,
2013, Vidurek sent a "Second Notice and Demand" to
the IRS, asserting he was not liable for the assessed taxes
because the Internal Revenue Code "is not the law"
and there is no contract between the IRS and Vidurek, again
demanding the IRS correct their files, and again threatening
legal action. (Compl. Ex. 6).
January 11, 2013, Vidurek sent a Freedom of Information Act
request to the IRS for his individual master files for tax
years 2009 through 2012, as well as other documents. On
February 5, 2013, Vidurek received a full response to his
request. The IRS provided the individual master files, but,
plaintiffs allege, not the necessary program or information
to decode them.
sent Vidurek another notice, dated January 21, 2013, stating
the amount Vidurek owed for 2009 had increased to $125,
528.52. Thereafter, Vidurek sent the IRS a letter and
affidavit dated January 25, 2013, stating he never received
the $236, 911.00 in reported taxable income that was the
basis of the Proposed Assessment.
then sent Vidurek a "Notice of intent to levy"
dated April 8, 2013, which indicated that if Vidurek did not
call the IRS or pay $127, 136.99 by April 18, 2013, the IRS
might levy any state tax refund to which Vidurek was entitled
and take possession of other property, the proceeds of which
would be applied to the amount the IRS stated Vidurek owed.
(Compl. Ex. 11). In response, Vidurek sent a "Fo[u]rth
Notice to Correct Records," dated April 10, 2013.
(Compl. Ex. 12).
sent Vidurek a "Final Notice" of "Intent to
Levy and Notice of Your Right to a Hearing," dated April
15, 2013. (Compl. Ex. 13). On April 22, 2013, Vidurek
responded to the IRS by letter, again asserting the IRS had
no authority to tax him. On April 29, 2013, the IRS sent
Vidurek notice that the IRS would be in contact with third
parties in an attempt to collect the unpaid taxes. Vidurek
responded to the IRS, objecting to any attempt to collect
taxes from him.
7, 2013, the IRS sent Vidurek a "Notice of Federal Tax
Lien Filing and Your Right to a Hearing Under IRC 6320,"
which indicated a federal tax lien had been filed with the
Dutchess County Clerk in the amount of $124, 762.43. (Compl.
15, 2013, the IRS issued a summons to RSB and HVFCU. The
summonses required RSB and HVFCU to "[p]rovide copies of
all opening account records and bank statements in which John
E. Vidurek ... is listed as a signatory from January 1, 2007
through December 31, 2008 and January 1, 2010 through
December 31, 2012." (Compl. Ex. 21). On May 25, 2013,
plaintiffs sent a notice and demand to both RSB and HVFCU,
registering plaintiffs' objection and affirmatively
withholding plaintiffs' consent for the banks to provide
information to the IRS.
August 7, 2013, the IRS sent Vidurek a determination letter,
which stated plaintiffs were not required to file a tax
return for the 2009 tax period. On September 2, 2013, the IRS
sent plaintiffs a notice that, after eliminating or
decreasing most taxes, penalties, interest, and fees
previously levied, Vidurek owed $80.64 for the 2009 tax year.
In addition, the IRS provided a "Certificate of Release
of Lien" dated September 18, 2013, for the amount of
$124, 762.43. (Compl. Ex. 26).
one year later, on August 25, 2014, the IRS sent Vidurek an
Income Tax Examination Changes form for changes to
Vidurek's taxes owed for 2008 and signed by "Tax
Examiner-MS 4388." (Compl. Ex. 28). On October 27, 2014,
the IRS sent plaintiff another deficiency notice claiming $1,
507 for 2008, signed by both the IRS Commissioner and
defendant Brenda Dial, an IRS service agent.
November 8, 2014, Vidurek sent defendants Layne Carver,
Brenda Dial, and IRS Commissioner John Koskinen a notice and
demand. Vidurek's notice asserted the attempt to collect
taxes and penalties for 2008 was time-barred, and he would
not contest the tax determination in a court because
"under the Constitution Article III Section 2[, ]
Article III courts lack jurisdiction to hear tax cases . . .
[and] tax court[s] .. . can provide no remedy for
People." (Compl. Ex. 30). Vidurek also contested the
$80.64 deficiency for the 2009 tax year. In response, on
November 14, 2015, defendant Jonnie Melendez, an intake
advocate at the Taxpayer Advocate Service of the IRS, wrote
to Vidurek and declined to address each argument raised in
the November 8, 2014, letter because they "appealed] to
be frivolous and have no basis in law." (Compl. Ex. 31).
months later, on July 11, 2016, the IRS sent a letter of
intent to seize Vidurek's assets as payment for $2,
745.05 owed for 2008. The letter warned that the IRS might
seize Vidurek's property on or after August 10, 2016, if
it did not receive payment. The letter informed Vidurek he
could appeal by requesting a Collection Due Process hearing.
From November 23, 2016, to August 23, 2017, the IRS
intercepted a portion of Vidurek's monthly social
security payments and applied them toward Vidurek's taxes
owed for 2008. (See Compl. Exs. 33, 36, 37, 42).
13, 2017, defendant Maryellen Benecke, on behalf of the IRS,
sent Vidurek a notice, asserting he had not filed a tax
return for 2014 and scheduling a meeting to discuss the
remaining outstanding tax payment. On June 15, 2017, Vidurek
declined the meeting and asserted he was "not a person
liable." (Compl. Ex. 35). On August 1, 2017, Vidurek
received another letter requesting he meet with the IRS, this
time from defendant Linda Piatek. Again, Vidurek declined the
meeting, insisting his tax status for 2009 "was the same
for 2014." (Compl. Ex. 40).
August 23, 2017, the IRS issued summonses to defendants RSB
and HVFCU, in addition to other institutions. The issuing
officer listed on all of the summonses was Linda Piatek and
the approving officer was defendant Jeanette Willet. The
summonses required the institutions to appear before Piatek,
give testimony, and produce books and records relating the
Vidureks' tax liability. Plaintiffs allege RSB and HVFCU
shared plaintiffs' financial information without
informing plaintiffs and without plaintiffs' consent.
allege the IRS subjected Vidurek to heightened scrutiny in
connection with the above tax assessments and collection
actions because Vidurek is a Tea Party organizer, and IRS
agents "singled [him] out for political reasons, with
intent to punish." (Compl. at 3).
further allege they "never gave consent or jurisdiction
to defendants to summons personal information, protected
under the [Fourth] Amendment, from any financial institutions
or any other third parties. . . . Plaintiff(s) forbad[e]
defendants from summonsing information from third
parties." (Compl. at 33).
Prior Actions Brought by Vidurek and Plaintiffs
27, 2013, a case plaintiffs filed in New York State Supreme
Court, Dutchess County, was removed to federal court and
assigned to this Court. ("Vidurek v. Miller, 13
Civ. 4476 (S.D.N.Y.), Doc. #1). Plaintiffs asserted largely
the same claims regarding the 2008 tax lien described above.
Contrary to plaintiffs' assertion that the case settled,
the Court dismissed the case by Order dated February 27,
2014. (Id., Doc. #38).
March 13, 2015, Vidurek filed a complaint in this district
against the Clerk of Court and a John Doe defendant alleging
the Clerk of Court, having received a complaint from Vidurek
to begin a new action against Koskinen, failed to file the
complaint and returned the papers to Vidurek. Vidurek v.
Krajick, 15 Civ. 2175 (S.D.N.Y.). On September 4, 2015,
the case was dismissed because plaintiff failed to pay the
court filing fees or complete a request to proceed in
forma pauperis. (Id., Doc. #4).
March 13, 2015, Vidurek filed a complaint against defendants
Koskinen, Dial, Melendez and other IRS employees for claims
arising from the same 2008 tax lien described above.
Vidurek v. Koskinen. 15 Civ. 2188 (S.D.N.Y.). On May
11, 2015, the case was dismissed because plaintiff failed to
pay the court filing fees or complete a request to proceed in
forma pauperis, (Id., Doc. #5).
October 4, 2017, plaintiffs filed an action against all
defendants named in the instant case and arising out of the
same facts. Vidurek v. IRS, 17 Civ. 7971 (S.D.N.Y.).
By Order dated November 30, 2017, Chief Judge McMahon
dismissed plaintiffs' case because (i) by letter dated
November 16, 2017, plaintiffs requested the court reassign
the action to White Plains; (ii) plaintiffs already had filed
the instant case (17 Civ. 9064) on November 20, 2017, and
therefore the prior case was duplicative; and (iii) by letter
dated November 17, 2017, but docketed on November 30,
plaintiffs asserted they wished to withdraw the case.
(Id. Doc. #7).
Subject Matter Jurisdiction
courts are courts of limited jurisdiction and lack the power
to disregard such limits as have been imposed by the
Constitution or Congress." Durant, Nichols. Houston,
Hodgson. & CorteseCosta, P.C. v. Dupont. 565 F.3d
56, 62 (2d Cir. 2009) (internal quotation marks omitted).
"A case is properly dismissed for lack of subject matter
jurisdiction under Rule 12(b)(1) when the district court
lacks the statutory or constitutional power to adjudicate
it." Nike. Inc. v. Already. LLC, 663 F.3d 89,
94 (2d Cir. 2011) (internal quotation marks omitted). The
party invoking the Court's jurisdiction bears the burden
of establishing that jurisdiction exists. Conyers v.
Rossides, 558 F.3d 137, 143 (2d Cir. 2009).
as here, the case is at the pleading stage, in deciding a
motion to dismiss under Rule 12(b)(1), the Court "must
accept as true all material facts alleged in the complaint
and draw all reasonable inferences in the plaintiffs
favor." Id. "However, argumentative
inferences favorable to the party asserting jurisdiction
should not be drawn." Buday v. N.Y. Yankees
P'ship, 486 Fed.Appx. 894, 895 (2d Cir. 2012)
(summary order) (quoting Atl. Mut. Ins. Co. v. Balfour
Maclaine Int'l Ltd., 968 F.2d 196, 198 (2d Cir.
1992)) (internal quotation marks omitted). When a
factual challenge to the Court's jurisdiction has been
raised, "the court may resolve [any] disputed
jurisdictional fact issues by referring to evidence outside
of the pleadings, such as affidavits." Zappia Middle
E. Constr. Co. v. Emirate of Abu Dhabi, 215 F.3d 247,
253 (2d Cir. 2000).
Insufficient Service of Process
defendant moves for dismissal under Rule 12(b)(5), the Court
must first address the preliminary questions of service and
personal jurisdiction. Hertzner v, U.S. Postal
Serv., 2007 WL 869585, at *3 (E.D.N.Y. Mar. 20, 2007).
When considering a motion to dismiss pursuant to 12(b)(5) for
insufficient service of process, courts must look to matters
outside the complaint to determine whether it has
jurisdiction. Mende v. Milestone Tech., Inc., 269
F.Supp.2d 246, 251 (S.D.N.Y. 2003). "'Conclusory
statements that a defendant was properly served are
insufficient to overcome a defendant's sworn affidavit
that he was never served with process.'"
Id. When a defendant raises a Rule 12(b)(5)
challenge, plaintiff bears the burden of proving service of
process was adequate. Id.
Failure to State a Claim
deciding a Rule 12(b)(6) motion, the Court evaluates the
sufficiency of the operative complaint under the
"two-pronged approach" articulated by the Supreme
Court in Ashcroft v. Iqbal, 556 U.S. 662, 679
(2009). First, plaintiffs legal conclusions and
"[t]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements," are
not entitled to the assumption of truth and are thus not
sufficient to withstand a motion to dismiss. Id. at
678; Hayden v. Paterson, 594 F.3d 150, 161 (2d Cir.
2010). Second, "[w]hen there are well-pleaded factual
allegations, a court should assume their veracity and then
determine whether they plausibly give rise to an entitlement
to relief." Ashcroft v. Iqbal, 556 U.S. at 679.
survive a Rule 12(b)(6) motion, the allegations in the
complaint must meet a standard of "plausibility."
Id. at 678; Bell Atl. Corp. v. Twombly, 550
U.S. 544, 564 (2007). A claim is facially plausible
"when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant
is liable for the misconduct alleged." Ashcroft v.
Iqbal, 556 U.S. at 678. "The plausibility standard
is not akin to a 'probability requirement,' but it
asks for more than a sheer possibility that a defendant has
acted unlawfully." Id.
Court must liberally construe submissions of pro se
litigants, and interpret them "to raise the strongest
arguments that they suggest." Triestman v.
Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006)
(per curiam) (internal quotation marks and citation omitted).
Applying the pleading rules permissively is particularly
appropriate when, as here, a pro se plaintiff alleges civil
rights violations. See Sealed Plaintiff v. Sealed
Defendant, 537 F.3d 185, 191 (2d Cir. 2008). "Even
in a pro se case, however . . . threadbare recitals of the
elements of a cause of action, supported by mere conclusory
statements, do not suffice." Chavis v.
Chappius, 618 F.3d 162, 170 (2d Cir. 2010) (internal
quotation marks and citation omitted). Nor may the Court
"invent factual allegations" plaintiff has not
Judgment on the Pleadings At any time after the
pleadings close and before trial commences, a party may move
for judgment on the pleadings under Rule 12(c). See
Citibank, N.A. v. Morgan Stanley & Co.
Int'l,PLC, 724 F.Supp.2d 407, 414
(S.D.N.Y. 2010). "The standard for addressing a Rule
12(c) motion for judgment on the pleadings is the same as
that for a Rule 12(b)(6) motion to dismiss ...