"No Warrant, No Levy" Argument Loses

[The Observer]

JOHN CRISTY,
Plaintiff,
v.
WELLS FARGO,
Defendant.

Release Date: FEBRUARY 06, 2012

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA

ORDER

Currently pending before the Court are: Defendant's Motion to Dismiss (Doc. 1-1 Ex. C), which was originally filed in Maricopa County Justice Court State of Arizona, Arrowhead Division; Plaintiff's Motion to Proceed (Doc. 12) and Motion to Produce the Levy (Doc. 14); and Defendant's Motion to Strike (Doc. 15). The Court now rules on the Motions.

BACKGROUND

Plaintiff John Cristy filed his Complaint in Maricopa County Justice Court State of Arizona, Arrowhead Division, on May 17, 2011. (Doc. 1-1 Ex. A.) Plaintiff marked on his Complaint that his claim arises from contract. Plaintiff alleges that Defendant Wells Fargo unlawfully confiscated his property, i.e. money in his bank account, by surrendering it to the Internal Revenue Service (the "IRS") without a warrant or court order. Plaintiff claims that a notice of levy is insufficient and that a warrant of distraint is required.

Defendant filed the pending Motion in state court on June 13, 2011. Defendant then removed to this Court on June 24, 2011 (Doc. 11), along with a notification of the pending Motion to Dismiss. When Plaintiff did not respond to the Motion, Defendant filed a Motion for Summary Disposition (Doc. 6). The Court denied the Motion for Summary Disposition without prejudice and gave Plaintiff until September 26, 2011 to file a response to the Motion to Dismiss.

Plaintiff filed a "Motion to Dismiss; Response & Disclosure" on September 23, 2011. (Doc. 11.) Plaintiff also filed a "Motion to Proceed" on October 13, 2011 (Doc.12) and a "Motion to Proceed: And Request to Produce the Levy" on November 14, 2011 (Doc. 14.) Defendant filed a Motion to Strike Plaintiff's Motion to Proceed and request to Produce the Levy on November 18, 2011. (Doc. 15.)

LEGAL STANDARD

The Court may dismiss a complaint for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) for two reasons: 1) lack of a cognizable legal theory and 2) insufficient facts alleged under a cognizable legal theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).

To survive a 12(b)(6) motion for failure to state a claim, a complaint must meet the requirements of Federal Rule of Civil Procedure 8(a)(2). Rule 8(a)(2) requires a "short and plain statement of the claim showing that the pleader is entitled to relief," so that the defendant has "fair notice of what the . . . claim is and the grounds upon which it rests." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)(quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).

Although a complaint attacked for failure to state a claim does not need detailed factual allegations, the pleader's obligation to provide the grounds for relief requires "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555 (internal citations omitted). The factual allegations of the complaint must be sufficient to raise a right to relief above a speculative level. Id. Rule 8(a)(2) "requires a 'showing,' rather than a blanket assertion, of entitlement to relief. Without some factual allegation in the complaint, it is hard to see how a claimant could satisfy the requirement of providing not only 'fair notice' of the nature of the claim, but also 'grounds' on which the claim rests." Id. (citing 5 C. Wright & A. Miller, Federal Practice and Procedure section 1202, pp. 94, 95(3d ed. 2004)).

Rule 8's pleading standard demands more than "an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009)(citing Twombly, 550 U.S. at 555). A complaint that offers nothing more than naked assertions will not suffice. To survive a motion to dismiss, a complaint must contain sufficient factual matter, which, if accepted as true, states a claim to relief that is "plausible on its face." Iqbal, 129 S.Ct. at 1949. Facial plausibility exists if the pleader pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Id. Plausibility does not equal "probability," but plausibility requires more than a sheer possibility that a defendant has acted unlawfully. Id. "Where a complaint pleads facts that are 'merely consistent' with a defendant's liability, it 'stops short of the line between possibility and plausibility of entitlement to relief.'" Id. (citing Twombly, 550 U.S. at 557).

In deciding a motion to dismiss under Rule 12(b)(6), the Court must construe the facts alleged in the complaint in the light most favorable to the drafter of the complaint and the Court must accept all well-pleaded factual allegations as true. See Shwarz v. United States, 234 F.3d 428, 435 (9th Cir. 2000). Nonetheless, the Court does not have to accept as true a legal conclusion couched as a factual allegation. Papasan v. Allain, 478 U.S. 265, 286 (1986).

In Arizona, courts assess the sufficiency of a claim under Arizona Rule of Civil Procedure 8, which mirrors Federal Rule of Civil Procedure 8. 1 Cullen v. Auto-Owners Ins. Co., 189 P.3d 344, 346 (Ariz. banc 2008). Arizona courts follow a notice pleading standard. Id. Under that standard, a pleading must give the adverse party fair notice of the nature and basis of the claim and indicate generally the type of litigation involved. Id.

If a pleading does not meet the standards of Rule 8, a party may move to dismiss for failure to state a claim pursuant to Arizona Rule of Civil Procedure 12(b)(6). When deciding a Rule 12(b)(6) motion, Arizona courts consider only the pleading itself and the well-pleaded allegations contained therein. Id. The courts assume the truth of all well-pleaded factual allegations and reasonable inferences therefrom. Id. "Because Arizona courts evaluate a complaint's well-pled facts, mere conclusory statements are insufficient to state a claim upon which relief can be granted . . . a complaint that states only legal conclusions . . . does not satisfy Arizona's notice pleading standard under Rule 8." Id.

Arizona courts did not adopt the Supreme Court's admonition in Conley v. Gibson, 355 U.S. 41 (1957) that complaints should not be dismissed unless it appears beyond doubt that the plaintiff could prove no set of facts in support of her claim. Id. at 346-47. Arizona trial courts may not speculate about hypothetical facts that might entitle a plaintiff to relief. Id. at 347. Instead, they are limited to considering the well-pleaded allegations and reasonable inferences from those allegations. Id.

ANALYSIS AND CONCLUSION

Defendant attached to its Motion to Dismiss the Notice of Levy served on Defendant by the IRS. 2 The IRS issued the Notice of Levy on April 24, 2011 to Wells Fargo "to collect money owed by the taxpayer." (Ex. 1 to Compl.) The Notice indicates that Plaintiff owed $ 180,660.52 in unpaid taxes.

Section 6332(a) of the Internal Revenue Code (the "Code") obligates an entity holding a taxpayer's property to "surrender such property or rights" to the IRS "upon demand" of an IRS official. 26 U.S.C. section 6332(a). A bank account is a species of property subject to levy within the meaning of section 6332. United States v. Nat'l Bank of Comm., 472 U.S. 713, 721 (1985).

Once an entity complies with a demand by surrendering property to the IRS, the entity is "discharged from any obligation or liability to the delinquent taxpayer and any other person with respect to such property or rights to property arising from such surrender or payment." 26 U.S.C. section 6332(e). Courts, including the United States Supreme Court, have interpreted section 6332(e) to mean that if a bank honors a levy, it is "discharged from any obligation or liability to the delinquent taxpayer with respect to such property." Nat'l Bank of Comm., 472 U.S. at 721; United States v. Hemmen, 51 F.3d 883, 887-88 & n.3 (9th Cir. 1995)(" section 6332(a) imposes a duty on third parties to honor the Service's notice of levy" and "section 6332(e) provides the third party an absolute defense against any subsequent claim by a delinquent taxpayer or any other person."). A taxpayer is not without remedies, however, because the Code provides administrative and judicial remedies against the government.

Contrary to Plaintiff's belief, banks do not require a warrant or court order before complying with a notice of levy. Section 3692 of the 1939 Code formerly required that a warrant of distraint accompany a notice of levy. But this section was repealed in 1954, and was replaced with section 6331, which does not require a warrant of distraint.

Per the Code, banks holding a delinquent taxpayer's property must comply with a levy. 3 In fact, if a bank fails to comply with a levy, the bank may incur substantial liability to the government, including penalties. Nat'l Bank of Comm., 471 U.S. at 721; Hemmen, 51 F.3d at 887.

When Defendant Wells Fargo complied with the Notice of Levy by turning over Plaintiff's property, Defendant did nothing more than what was required of it by the Code. And because pursuant to 26 U.S.C. section 6332(e) Defendant is discharged from any liability to Plaintiff for turning over his property to the IRS, Plaintiff's claim against Defendant necessarily fails as a matter of law. The Court therefore will grant the Motion to Dismiss, and the Court will not grant leave to amend because amendment would be futile.

Accordingly,

IT IS ORDERED Granting Defendant's Motion to Dismiss (Doc. 1-1). This case is dismissed in its entirety.

IT IS FURTHER ORDERED Denying as moot Plaintiff's Motion to Proceed (Doc. 12) and Motion to Produce the Levy (Doc. 14) and Defendant's Motion to Strike (Doc. 15).

DATED this 6th day of February, 2012.

James A. Teilborg
United States District Judge

FOOTNOTES:

/1/ The Court notes that Plaintiff filed his Complaint in Arizona state court, which has not adopted Twombly. The Court does not need to decide which pleading standard applies, federal or state, because the Complaint fails to state a claim under either standard.

/2/ The Court may consider the Notice of Levy without converting the Motion to Dismiss to a motion for summary judgment because the Plaintiff references and necessarily relies on the Notice in his Complaint and does not dispute its authenticity, even though he did not attach the Notice as an exhibit to the Complaint. Coto Settlement v. Eisenberg, 593 F.3d 1031, 1038 (9th Cir. 2010).

/3/ The term "levy" includes the power of distraint and seizure by any means, including a notice of levy. See 26 U.S.C. section 6331(b). And a levy is made by serving a notice of levy on the party in possession of the property. See Treas.Reg. section 301.633-1(a)(1); United States v. Donahue Indus. Inc., 905 F.2d 1325, 1330 (9th Cir. 1990).

[LPC]

From the Tax Protester FAQ:

There are some older court decisions, decided under the Internal Revenue Code of 1939 (which was repealed when the Internal Revenue Code of 1954 was enacted), which refer to a “warrant of distraint.” See, for example, United States v. O’Dell, 160 F.2d 304, 307 (6th Cir. 1947) [...]. Because “search warrants” must be issued by a court, tax protesters leap to the conclusion that a “warrant of distraint” must also be issued by a court but a “warrant” is simply a document granting authority to do something and not all kinds of warrants require court approval. In the case of “warrants for distraint,” section 3692 of the 1939 Code stated that “the collector may levy, or by warrant may authorize a deputy collector to levy, upon all property and rights to property....”). A “collector” is an employee of the IRS, and so collectors had the power to levy on property, or had the power to issue “warrants” to deputy collectors to levy on property. No court approval is needed for a collector to levy or issue a warrant for a levy.

[The Observer]

Another pro se litigant tries the "no-levy-without-a-court-order" approach.

JERRY A. AL-SHARIF,
Plaintiff,
v.
EPES TRANSPORT SYSTEM, INC.,
Defendant.

Release Date: FEBRUARY 17, 2012

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
AUGUSTA DIVISION

ORDER

Presently pending before the Court are EPES Transport System, Inc.'s ("Defendant") Motion to Dismiss Plaintiff's Amended Complaint (doc. no. 7) and Motion to Dismiss Plaintiff's Second Amended Complaint (doc. no. 24), as well as Jerry A. Al-Sharif's ("Plaintiff") Motion for Joinder of Parties (doc. no. 20)

I. BACKGROUND

This case arises from the garnishment of Plaintiff's wages. Plaintiff is employed by Defendant as a commercial truck driver. (Am. Compl. paragraph IV.) On February 11, 2011, Defendant received a notice of levy (the "Notice of Levy") from the Internal Revenue Service ("IRS") relating to Plaintiff's wages, salary, and other income. 1 (Id. paragraph V.) The Notice of Levy requires Defendant to turn over to the IRS the taxpayer's wages and salary that have been earned but not paid, as well as wages and salary earned in the future, until the levy is released. (Id., Ex. A.) The Notice of Levy seeks payment for taxes owed for the years of 2001 through 2004 in an amount totaling $ 65,893.89. (Id.) Defendant has complied with the Notice of Levy, despite Plaintiff's protests. (Id. paragraph VIII.)

On February 14, 2011, Plaintiff filed a pro se complaint in the Superior Court of Richmond County, Georgia. (Doc. no. 1, Ex. 2.) On March 7, 2011, Plaintiff amended his Complaint. (Doc. no. 1, Ex. 4.) On March 18, 2011, Defendant removed this case to the United States District Court for the Southern District of Georgia, Augusta Division. (Doc. no. 1.)

In the Amended Complaint, Plaintiff seeks a declaratory judgment against Defendant and requests injunctive relief to prevent Defendant from complying with the Notice of Levy. (Id.) On March 18, 2011, Defendant filed a Motion to Dismiss Plaintiff's Amended Complaint for failure to state a claim. (Doc. no. 7.) On May 16, 2011, Plaintiff filed a motion for joinder requesting that the Court add employees of Defendant, Michael W. Dunlap and Sharon Farris, to this case. (Doc. no. 20.) Shortly thereafter, on June 8, 2011, Plaintiff filed a Second Amended Complaint. (Doc. no. 23.) The Second Amended Complaint added claims for breach of contract and requested damages in the amount of $ 445,000. (Id.) On June 22, 2011, Defendant filed a motion to dismiss Plaintiff's Second Amended Complaint. (Doc. no. 24.) Each of these motions will now be addressed in turn.

II. LEGAL STANDARD

In considering a motion to dismiss under Rule 12(b)(6), the court tests the legal sufficiency of the complaint, not whether the plaintiff will ultimately prevail on the merits. Scheur v. Rhodes, 416 U.S. 232, 236 (1974). The court must accept as true all facts alleged in the complaint and construe all reasonable inferences in the light most favorable to the plaintiff. See Hoffman-Pugh v. Ramsey, 312 F.3d 1222, 1225 (11th Cir. 2002). The court, however, need not accept the complaint's legal conclusions as true, only its well-pled facts. Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949-50 (2009).

A complaint also must "contain sufficient factual matter, accepted as true, 'to state a claim to relief that is plausible on its face.'" Id. at 1940 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The plaintiff is required to plead "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. Although there is no probability requirement at the pleading stage, "something beyond . . . mere possibility . . . must be alleged." Twombly, 550 U.S. at 556-57 (citing Durma Pharm., Inc. v. Broudo, 544 U.S. 336, 347 (2005)).

III. DISCUSSION

A. Defendant's Motion to Dismiss Plaintiff's Amended Complaint

Plaintiff's Amended Complaint alleges that Defendant illegally garnished Plaintiff's wages in violation of his constitutional rights. Plaintiff alleges that the garnishment proceedings are invalid because there has been no court order issued concerning the validity of the lien on his wages. (Am. Compl. paragraphs VI-VIII.) Accordingly, Plaintiff seeks a declaratory judgment against Defendant, a temporary restraining order, and injunctive relief compelling Defendant to cease all garnishment proceedings against his wages, income, and salary on behalf of the IRS. (Id. paragraph IX.)

Plaintiff is not entitled to injunctive relief as a matter of law. The Anti-Injunction Act provides generally that "no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person." 26 U.S.C. section 7421(a). The purpose of the Act is "to permit the United States to assess and collect taxes alleged to be due without judicial intervention, and to require that the legal right to the disputed sums be determined in a suit for refund." Enochs v. Williams Pacing & Navigation Co., 370 U.S. 1, 7 (1962). The statute specifies a number of exceptions, none of which are applicable in this case. 2

Plaintiff's remedy for an allegedly wrongful assessment is "to bring a timely suit in the tax court under 26 U.S.C. section 6212 and 6213 or to pay the tax and sue for a refund in district court or [court of Federal Claims] under 26 U.S.C. section 7422 and 28 U.S.C. section 1346(a)(1) and 1491." Leves v. Internal Revenue Service, Comm'r, 796 F.2d 1433, 1435 (11th Cir. 1986) (finding that Anti-Injunction Act precluded suit by taxpayers to enjoin IRS from placing tax liens on their property and to require IRS to return money already collected). This Court lacks jurisdiction to entertain Plaintiff's claims for injunctive relief as to the Notice of Levy. McLaurine, II. v. Mid South Rests., Inc., No. 3:07-cv-049-MHT, 2007 WL 1893318, at *1, 3 (M.D. Ala. April 23, 2007) (finding that plaintiff's requests for injunctive relief against his employer for wrongful levy of his wages were barred by the Anti-Injunction Act); see also Enax v. U.S., 243 Fed. Appx. 449, 451 (11th Cir. 2007) ("nless [the plaintiff] qualifies for a statutory or judicial exception to the [Anti-Injunction Act], we must affirm the district court's determination that the Act stripped it of the jurisdiction necessary to issue the requested relief."); Taylor v. Simonetta, No. 1:99-CV-665, 2000 WL 641615, at *2 (N.D. Ga. Mar. 20, 2000) (finding employees who complied with notice of levy could not be subject to injunction pursuant to Anti-Injunction Act). Accordingly, since Plaintiff's Amended Complaint only contains claims for injunctive relief that are barred by the Anti-Injunction Act, the Amended Complaint must be dismissed. 3

B. Leave to Amend

Plaintiff filed a Second Amended Complaint on June 8, 2011, without leave of court. However, "[w]here it appears that a more carefully drafted complaint might state a claim, the district court should give a pro se plaintiff an opportunity to amend his complaint instead of dismissing it." Schmitt v. U.S. Office of Pers. Mgmt., 403 Fed. Appx. 460, 462 (11th Cir. 2010); see also Duff v. Steub, 378 Fed. Appx. 868, 872 (11th Cir. 2010) (vacating district court's dismissal of pro se plaintiff's complaint after court failed to allow him an opportunity to amend); Clark v. Maldonado, 288 Fed. Appx. 645, 647 (11th Cir. 2008) (same); Habib v. Bank of Am. Corp., No. 1:10-cv-04079, 2011 WL 2580971, at *4-*5 (N.D. Ga. Mar. 15, 2011) (allowing pro se plaintiff an opportunity to amend prior to dismissal with prejudice). With this in mind, the Court will consider Plaintiff's Second Amended Complaint.

C. Defendant's Motion to Dismiss Plaintiff's Second amended Complaint

Plaintiff's Second Amended Complaint is based largely on the same allegations contained in Plaintiff's Amended Complaint. In the Second Amended Complaint, Plaintiff alleges that Defendant breached its at-will contract with Plaintiff when it garnished his wages in accordance with the Notice of Levy. Plaintiff alleges that he never agreed to the taking of his wages, and that since Defendant was not acting pursuant to a court order, the garnishment breached the at-will contract between Plaintiff and Defendant. (Second Am. Compl. at 4.) Plaintiff claims damages in the amount of $ 445,000 based on lost wages, lost investments, loss of the ability to pay normal bills, and the mental anguish associated with these losses. (Id. at 5.)

Plaintiff's claims for damages in the Second Amended Complaint must fail because Defendant is immune from liability for complying with the Notice of Levy. The Secretary of the Treasury may collect unpaid taxes by levy on any property belonging to the delinquent taxpayer or upon which there is a tax lien. 26 U.S.C. section 6331(a); U.S. v. Speir, 808 F. Supp. 829, 832 (S.D. Ga. 1992). Section 6332(a) of the Internal Revenue Code provides that "any person in possession of . . . property or rights to property subject to levy upon which a levy has been made shall, upon demand of the Secretary [of Treasury], surrender such property or rights . . . to the Secretary." 26 U.S.C. section 6332(a). If the taxpayer's property is held by another, the IRS customarily serves a notice of levy upon the custodian. U.S. v. Nat'l Bank of Commerce, 472 U.S. 713, 720 (1985). This notice not only gives the IRS the right to all property levied upon, it creates a "custodial relationship" between the third party and the IRS so that the United States has constructive possession of the property. Id.

Pursuant to section 6332(e), "[a]ny person in possession of . . . property or rights to property subject to levy upon which a levy has been made who, upon demand by the Secretary, surrenders such property or rights to property . . . to the Secretary . . . shall be discharged from any obligation or liability to the delinquent taxpayer and any other person." 26 U.S.C. section 6332(e) (emphasis added). If, however, the custodian refuses to surrender property subject to levy, he or she becomes personally liable to the United States for the value of the property. 26 U.S.C. section 6332(d)(1); U.S. v. Metro. Life Ins., 874 F.2d 1497, 1499 (11th Cir. 1989). A third party recipient of a notice of levy has a legal obligation under section 6332(a) to turn over the subject property to the IRS; it cannot challenge the validity of the levy. Busby v. Internal Revenue Service & Principal Mut. Life Ins. Co., No. 96-6566-CIV, 1997 WL 364507, at *4 (S.D. Fla. Feb. 23, 1997). A third party "served with notice of levy has two, and only two, possible defenses for failure to comply with the demand: that it is not in possession of the property of the taxpayer, or that the property is subject to a prior judicial attachment or execution." Nat'l Bank of Commerce, 472 U.S. at 727.

Here, Plaintiff does not dispute that Defendant received an IRS Notice of Levy requiring Defendant to remit to the IRS certain non-exempt portions of his wages. Thus, Plaintiff's allegations are barred because section 6332(e) expressly immunizes a third party custodian such as Defendant from liability for honoring a levy. Moreover, Plaintiff does not allege that Defendant was not in possession of his wages or that his wages were subject to prior judicial attachment or execution by a third party. Therefore, Defendant does not fall into the narrow exception created for custodians to refuse to comply with a notice of levy. Furthermore, immunity is provided under 6332(e) regardless of whether the levy is valid. Davis v. U.S. Airways, No. 1:99-CV-02260, 2000 WL 1367635, at *1 n. 1 (N.D. Ga. Aug. 1, 2000)

Despite these facts and law, Plaintiff asserts that because the Notice of Levy is not accompanied by a court order, the garnishment proceedings deny him due process and equal protection of the law pursuant to the Fourteenth Amendment of the United States Constitution. (Doc. no. 27 at 4-6.) This argument is without merit. It is well-established that the Internal Revenue Code provides two principal tools for the purpose of enforcing a federal tax lien. Nat'l Commerce Bank, 472 U.S. at 720. One tool is an administrative levy pursuant to section 6331, and the other tool is a lien foreclosure suit pursuant to section 7403. Id. Section 7403 states that "whether or not levy has been made, the Attorney General or his delegate, at the request of the [Treasury] Secretary, . . . may direct a civil action to be filed in a district court of the United States to enforce a lien of the United States." 26 U.S.C. section 7403(a). However, the use of a notice of levy pursuant to section 6331 does not require a court order or judicial intervention. Nat'l Commerce Bank, 472 U.S. at 720. Accordingly, no court order was necessary to confirm the validity of the Notice of Levy at issue here.

In sum, Plaintiff's allegations fail to state a claim because Defendant is immune from liability for complying with the Notice of Levy pursuant to 26 U.S.C. section 3662(e). Plaintiff failed to assert any allegations of actions by Defendant, other than compliance with the Notice of Levy, that could form the basis of a claim against Defendant. Accordingly, Plaintiff's Second Amended complaint should be dismissed for failure to state a claim upon which relief could be granted.

D. Motion for Joinder

On May 16, 2011, Plaintiff filed a self-styled Motion for Joinder. (Doc. no. 20.) Plaintiff argues in his motion that both Michael Dunlap ("Dunlap") and Sharon Farris ("Farris"), as employees of Defendant, are necessary parties pursuant to Federal Rule of Civil Procedure 19. Rule 19 provides that

[a] person who is subject to service of process
and whose joinder will not deprive the court of subject-matter
jurisdiction must be joined as a party if: (A) in
that person's absence, the court cannot accord complete
relief among existing parties; or (B) that person
claims an interest relating to the subject of the
action and is so situated that disposing of the action
in the person's absence may: (i) as a practical matter
impair or impede the person's ability to protect
the interest; or (ii) leave an existing party subject
to a substantial risk of incurring double, multiple,
or otherwise inconsistent obligations because of
the interest.

Fed. R. Civ. P. 19(a). Plaintiff simply restates the language of Rule 19 in his motion and provides no evidence that without either Dunlap or Farris this Court cannot provide complete relief or that either has an interest in this litigation. 4 Accordingly, this Court cannot find that Dunlap and Farris are required parties under Rule 19.

Further, because pro se pleadings are to be construed broadly, this Court will construe Plaintiff's motion as a motion to amend his complaint to add Dunlap and Farris as party defendants. Federal Rule of Civil Procedure 15 provides that when a party requests to amend its complaint, "[t]he court should freely give leave when justice so requires." "A proposed amendment may be denied for futility 'when the complaint as amended would still be properly dismissed.'" Coventry First, LLC v. McCarty, 605 F.3d 865, 870 (11th Cir. 2010) (quoting Cockrell v. Sparks, 510 F.3d 1307, 1310 (11th Cir. 2007)).

Here, Plaintiff seeks to amend his pleadings by adding two individuals acting within their capacity as employees for Defendant. Plaintiff does not state any specific claims against either Dunlap or Farris. Thus, to the extent that Plaintiff is seeking injunctive relief to prevent these employees from complying with the Notice of Levy, the addition of Dunlap and Farris would be futile because any claims for injunctive relief are barred by the Anti-Injunction Act. Furthermore, to the extent that Plaintiff seeks to add Dunlap and Farris to assert claims of liability for their actions in complying with the Notice of Levy, such claims would fail as a matter of law as previously explained.

For these reasons, if the Court were to grant Plaintiff's motion to add Dunlap and Farris to the case, all claims against the proposed new parties would have to be dismissed. It would therefore be futile to grant Plaintiff's motion (doc. no. 20), and it will thus be denied.

IV. CONCLUSION

Upon the foregoing, Defendant's Motion to Dismiss Plaintiff's Amended Complaint (doc. no. 7) is GRANTED, Plaintiff's Motion for Joinder (doc. no. 20) is DENIED, and Defendant's Motion to Dismiss Plaintiff's Second Amended Complaint (doc. no. 24) is GRANTED. Accordingly, Plaintiff's claims are DISMISSED WITH PREJUDICE. The Clerk is DIRECTED to CLOSE this case and TERMINATE all pending motions.

ORDER ENTERED at Augusta, Georgia, this 17 day of February, 2012.

Honorable J. Randal Hall
United States District Judge
Southern District of Georgia

FOOTNOTES:

/1/ The Notice of Levy is attached to Plaintiff's Complaint and Amended Complaint. The Notice of Levy is central to Plaintiff's claim and is therefore appropriate to consider on a motion to dismiss. See Financial Sec. Assur., Inc. v. Stephens, Inc., 500 F.3d 1276, 1284 (11th Cir. 2007) (noting the court will consider the complaint and documents attached thereto when analyzing a motion to dismiss).

/2/ The enumerated exceptions relate to proceedings before the Tax Court (26 U.S.C. section 6015(e), 6212 (a),(c)), injunctions of assessments related to partnerships (section 6225(b), 6246(b)), suspension of collection during a hearing by the IRS Office of Appeals and appeal of that decision (section 6330(e)(1)), collection of unpaid divisible employment taxes (section 6331(i)), collection of penalties against a tax preparer or for failure to collect and account for taxes (section 6694(c), 6672(c)), expedited review of jeopardy levies and assessments (section 7429(b)), proceedings for determination of employment status of individuals working for a taxpayer (section 7436), and civil actions filed by persons other than the taxpayer (section 7426(a), (b)(1)). Plaintiff also has not alleged or demonstrated that his claims fall within the judicial exception set forth in Enochs, supra (exception applies where the plaintiff establishes that the United States cannot prevail under any circumstances, "under the most liberal view of the law and the facts" and collection would cause irreparable harm). The limited exception set forth in South Carolina v. Regan, 465 U.S. 367, 373 (1984) (applying where "Congress has not provided the plaintiff with an alternative legal way to challenge the validity of a tax"), is likewise inapplicable.

/3/ To the extent that Plaintiff's Amended Complaint could be construed as stating a claim for damages, these claims must also fail due to the immunity given to third parties who comply with an IRS notice of levy. See 26 U.S.C. section 3662(e).

/4/ Plaintiff baldly asserts that Dunlap claims an interest in this litigation; however, there is no indication that Dunlap has any such interest.

[LPC]

In the Second Amended Complaint, Plaintiff alleges that Defendant breached its at-will contract with Plaintiff when it garnished his wages in accordance with the Notice of Levy.

"At-will" means that the employer can fire the idiot for any reason at all, or no reason.

I hope that the employer eliminated the levy problem by eliminating the wages.

It's a win-win.