Piedmont Gardens, LLC v. LeBlanc

168 F. Supp. 3d 391, 2016 U.S. Dist. LEXIS 24191, 2016 WL 2946140
CourtDistrict Court, D. Connecticut
DecidedFebruary 29, 2016
DocketCivil No. 3:14-CV-337(AWT)
StatusPublished
Cited by3 cases

This text of 168 F. Supp. 3d 391 (Piedmont Gardens, LLC v. LeBlanc) is published on Counsel Stack Legal Research, covering District Court, D. Connecticut primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Piedmont Gardens, LLC v. LeBlanc, 168 F. Supp. 3d 391, 2016 U.S. Dist. LEXIS 24191, 2016 WL 2946140 (D. Conn. 2016).

Opinion

RULING ON MOTION TO DISMISS

Alvin W. Thompson, United States District Judge

Plaintiffs Piedmont Gardens, LLC, Samuel Pollack, Back Bone, LLC, and Barbara Yale bring a four-count Amended Complaint against defendants Michael LeBlanc, Frank Caruso, Karen Mulcahy, and the City of Waterbury. The defendants have moved to dismiss the Amended Complaint [393]*393arguing, inter alia, that the court lacks subject matter jurisdiction as to all counts.

For the reasons set forth below, the defendant’s motion to dismiss is being granted.

I. FACTUAL ALLEGATIONS

“The complaint, which [the court] must accept as true for purposes of testing its sufficiency, alleges the following circumstances.” Monsky v. Moraghan, 127 F.3d 243, 244 (2d Cir.1997). The plaintiffs are all owners of real property within the City of Waterbury. At all times pertinent to this action, defendant Michael LeBlanc has been the Director of Finance for Waterbury; defendant Frank Caruso has been the Tax Collector for Waterbury; and defendant Karen Mulcahy has been the Deputy Tax Collector for Waterbury. The plaintiffs also name as defendants ten unnamed state marshals and/or constables (Hereafter “marshal” means “marshal and/or constable”).

The plaintiffs allege that the defendants violated the requirements of Connecticut statutes and of provisions in the City of Waterbury’s charter related to the collection of delinquent taxes. The plaintiffs allege that these violations affected each of them in one or more of the following ways:

a. If a tax alias warrant was issued relating to a parcel of real property, the Office of Tax Collections for the City of Waterbury would refuse to accept payments for taxes owed on such parcel, instead telling persons attempting to pay such taxes that they were required to deal with the [marshal] that had served such alias tax warrant. ...
b. If a tax alias warrant was issued relating to a parcel of real property, and the Office of Tax Collections for the City of Waterbury received a payment for the payment of taxes on said parcel, the Office of Tax Collection would give all or a portion of the payment to the [marshal] who had served such alias tax warrant. ...
c. If a tax alias warrant was issued relating to a parcel of real property, and the Office of Tax Collections for the City of Waterbury received a mailed check for the payment of taxes on said parcel, the Office of Tax Collection would give the check to the [marshal] that had served such alias tax warrant uncashed.
d. The website for the Office of Tax Collection provided for the on-line payment of taxes. If a tax alias warrant was issued relating to a parcel of real property the website was configured or designed so that no online payment of that delinquent tax could be made.
e. Upon statement and belief, if an alias tax warrant was issued related to a delinquent tax payment, the record for the [ ] tax bill was marked with a “W” and that was an indication to employees of the Office of Tax Collection that they should not accept payment for that tax bill and should inform anyone inquiring about the tax bill that they had to talk to the [marshal] who served said alias tax warrant.
f. Once one of the [marshals] had possession of monies intended for the payment of delinquent taxes, th[e marshal] would retain approximately 15% of the amount and turn the remainder over to the Office of Tax Collections for the City of Waterbury.

(Pis.’ Third Am. Compl. (“Compl.”), Doc. No. 38, at ¶ 34(a)-(f); see also id. at ¶ 4.) The plaintiffs also allege that they received a demand for immediate payment of taxes on real property not yet due without notice that a determination had been made that collection of said tax was in jeopardy, but that allegation does not seem to be the basis for any cause of action pled.

[394]*394The plaintiffs’ complaint seeks declaratory and injunctive relief, as well as damages pursuant to 42 U.S.C. § 1988 and Connecticut General Statutes § 52-564, in connection with the assessment and collection procedures of the defendants regarding taxes on the plaintiffs’ real property.

II. LEGAL STANDARD

A claim is properly dismissed for lack of subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1) when the court lacks the statutory or constitutional power to adjudicate the claim. Nowak v. Ironworkers Local 6 Pension Fund, 81 F.3d 1182, 1187 (2d Cir.1996). On a Rule 12(b)(1) motion to dismiss, the party asserting subject matter jurisdiction “bears the burden of proving subject matter jurisdiction by a preponderance of the evidence.” Aurecchione v. Schoolman Transp. Sys., Inc., 426 F.3d 635, 638 (2d Cir.2005).

“[T]he standards for reviewing dismissals granted under 12(b)(1) and 12(b)(6) are identical.” Moore v. PaineWebber Inc., 189 F.3d 165, 169 n. 3 (2d Cir.1999). When deciding a motion to dismiss under Rule 12(b)(6), the court must accept as true all factual allegations in the complaint and must draw inferences in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). Although a complaint “does not need detailed factual allegations, a plaintiffs obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (citing Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986) (on a motion to dismiss, courts “are not bound to accept as true a legal conclusion couched as a factual allegation”)). “Nor does a complaint suffice if it tenders ‘naked assertion^]’ devoid of ‘further factual enhancement.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 557, 127 S.Ct. 1955). “Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all allegations in the complaint are true (even if doubtful in fact).” Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (citations omitted). However, the plaintiff must plead “only enough facts to state a claim to relief that is plausible on its face.” Id. at 570, 127 S.Ct. 1955. “The function of a motion to dismiss 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.’” Mytych v. May Dept. Stores Co., 34 F.Supp.2d 130, 131 (D.Conn.1999) (quoting Ryder Energy Distrib. v.

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Bluebook (online)
168 F. Supp. 3d 391, 2016 U.S. Dist. LEXIS 24191, 2016 WL 2946140, Counsel Stack Legal Research, https://law.counselstack.com/opinion/piedmont-gardens-llc-v-leblanc-ctd-2016.