United States District Court, N.D. Oklahoma
BRENDAN M. MCHUGH, Plaintiff,
JASON CARINI, individually and in his official capacity; and DAVID WALLIS, individually, Defendants.
OPINION AND ORDER
GREGORY K. FRIZZELL, CHIEF JUDGE.
the court is defendants' Motion to Dismiss [Doc. No. 23]
plaintiff Brendan McHugh's Second Amended Complaint. For
the reasons set forth below, the motion is granted in part
and denied in part.
dispute arises from a tax debt owed by Mr. McHugh, and the
seizure and threatened seizure of his property to satisfy the
same. On November 29, 2016, Mr. McHugh entered into a payment
agreement with the Rogers County Treasurer's Office for
“delinquent personal tax.” The parties dispute
the meaning of that agreement-specifically, the portion that
Mr. McHugh would “pay the oldest year of delinquent
personal tax to [ ] Rogers County” on a monthly basis
over “a period of 7 consecutive months.” [Doc.
No. 22-1]. Mr. McHugh interprets the agreement to allow
payment of the oldest year of tax delinquency in seven (7)
monthly installments, [Doc. No. 22, p. 2, ¶ 14]; Rogers
County interprets the agreement to require payment of the
entire amount of the oldest tax debt still owing on a monthly
basis-that is to say, it obligated Mr. McHugh to pay all
seven (7) years of outstanding tax debt over the course of
seven (7) months, [Doc. No. 23, p. 1]. Because of that
difference in interpretation, a dispute arose when Mr. McHugh
tendered an amount of money-$300-which was less than Rogers
County believed was owed.
Jason Carini-the Rogers County Treasurer-refused to accept
the $300 offered by Mr. McHugh on December 19, 2016. Mr.
Carini issued a tax warrant, canceled the payment schedule,
and accelerated the total amount of tax plus costs to become
immediately due. On January 10, 2017, defendant David
Wallis-a deputy sheriff-arrived at Mr. McHugh's home to
seize his vehicle pursuant to the tax warrant issued by the
Rogers County Treasurer's Office, [Doc. No. 17-1]; Mr.
Wallis did not have a judicial warrant. As alleged, Mr.
Wallis also threatened to seize bank assets, including tax
exempt veteran's benefits, and previously had threatened
to seize office furniture not belonging to Mr. McHugh at Mr.
Carini's behest. [Doc. No. 22, pp. 4, 6-7, ¶¶
19, 25]. Mr. Carini is also alleged to have denied Mr. McHugh
the benefit of a grace period on the payment of delinquent
taxes in effect through January 20, 2017. [Id. at
6-7, ¶ 25]. Mr. McHugh disputed the above behavior in
person and in writing to the county treasurer.
January 18, 2017, Mr. McHugh filed suit, bringing claims for
conversion, trespass, invasion of privacy, fraud, violations
of 42 U.S.C. § 1983, and a permanent injunction. Shortly
thereafter, defendants filed a motion to dismiss, which Mr.
McHugh mooted by filing a First Amended Complaint on April
25, 2017. The First Amended Complaint contained the same
causes of action as the original Complaint, except that it
sought relief from Mr. Carini in his official capacity as
well. Defendants against moved to dismiss on May 9, 2017,
arguing, among other things that the Tax Injunction Act
(“TIA”) and principles of comity and federalism
divested this court of jurisdiction over Mr. McHugh's
court dismissed the First Amendment Complaint on June 13,
2017. McHugh v. Carini, Case No. 17-CV-35-GKF-FHM,
2017 WL 2568936 (N.D. Okla. June 13, 2017). Though it
declined to apply the TIA, the court held: (1) principles of
comity and federalism barred Mr. McHugh's § 1983
tax-related damages claims because he has an adequate remedy
at state law; (2) as pled, the First Amended Complaint did
not allege or plausibly allege violations of the First,
Fourth, or Fifth Amendments; and (3) absent federal question
jurisdiction, it would decline to exercise supplemental
jurisdiction over Mr. McHugh's state law claims.
Id. The court granted Mr. McHugh ten (10) days to
file a Second Amended Complaint, which he did on June 22,
Second Amended Complaint alleges claims for conversion,
trespass, invasion of privacy, breach of contract, and
violations of § 1983 under the First and Fourth
Amendments; it does not contain a request for an injunction
and sues defendants only in their individual capacities. This
the Federal Rules of Civil Procedure, a plaintiff must allege
facts that-taken as true-give rise to jurisdiction and
actionable claims. Fed.R.Civ.p. 12(b)(1), (6); Holt v.
United States, 46 F.3d 1000, 1002 (10th Cir. 1995);
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007). Specifically, Rule 12(b)(1) allows dismissal of a
case where subject matter jurisdiction is lacking, Fenix
Constructors, Inc. v. Sheltering Palms-Tulsa I, LLC, No.
06-CV-546-GKF-FHM, 2007 WL 2323432, at *1 (N.D. Okla. Aug. 9,
2007); Rule 12(b)(6) requires a complaint contain
“enough facts to state a claim to relief that is
plausible on its face.” Twombly, 550 U.S. at
570. Ordinarily, federal courts address subject-matter
jurisdiction before the merits of a claim. United States
v. Fisher, 805 F.3d 982, 990 n. 2 (10th Cir. 2016),
cert. denied, 136 S.Ct. 1528 (2016); Ruhrgas AG
v. Marathon Oil Co., 526 U.S. 574, 587-88 (1999).
argue that Mr. McHugh's claims are barred by: (1) the
TIA; (2) principles of comity and federalism; and (3)
qualified immunity. The court addresses each argument in
Tax Injunction Act
bars federal courts from “enjoin[ing], suspend[ing] or
restrain[ing] the assessment, levy or collection of any tax
under [s]tate law.” 28 U.S.C. § 1341. To that end,
it “divest[s] the federal courts of subject matter
jurisdiction over claims challenging state taxation
procedures.” See Marcus v. Kan. Dep't of
Rev., 170 F.3d 1305, 1309 (10th Cir. 1999) (quotation
marks and citation omitted). But not all claims. “[A]
suit cannot be understood to ‘restrain' the
‘assessment, levy or collection' of a state tax if
it merely inhibits those activities.” See Direct
Mktg. Ass'n v. Brohl, 135 S.Ct. 1124, 1133 (2015);
accord McHugh v. Carini, Case No. 17-CV-35-GKF-FHM,
2017 WL 2568936, at *4 (N.D. Okla. June 13, 2017). Rather, an
action must “to some degree s ...