United States District Court, W.D. Oklahoma
MILES-LAGRANGE, UNITED STATES DISTRICT JUDGE.
the Court is defendants' Motion to Dismiss Second Amended
Complaint, filed November 15, 2017. On December 5, 2017,
plaintiff filed her response, and on December 12, 2017,
defendants filed their reply.
November 1, 2017, plaintiff filed her Second Amended
Complaint. In her complaint, plaintiff alleges the following
causes of action: (1) breach of contract and conversion, (2)
breach of fiduciary duty and negligence, and (3) tortious
breach of contract, misrepresentation, deceit, and fraud.
Defendants now move, pursuant to Federal Rule of Civil
Procedure 12(b)(6), to dismiss plaintiff's Second Amended
the standard for determining whether to dismiss a claim
pursuant to Rule 12(b)(6) for failure to state a claim upon
which relief may be granted, the United States Supreme Court
To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to state a claim
to relief that is plausible on its face. A claim has facial
plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged. 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. 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.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(internal quotations and citations omitted). Further,
“where the well-pleaded facts do not permit the court
to infer more than the mere possibility of misconduct, the
complaint has alleged - but it has not shown - that the
pleader is entitled to relief.” Id. at 679
(internal quotations and citations omitted). Additionally,
“[a] pleading that offers labels and conclusions or a
formulaic recitation of the elements of a cause of action
will not do. Nor does a complaint suffice if it tenders naked
assertion[s] devoid of further factual enhancement.”
Id. at 678 (internal quotations and citations
omitted). A court “must determine whether the complaint
sufficiently alleges facts supporting all the elements
necessary to establish an entitlement to relief under the
legal theory proposed.” Lane v. Simon, 495
F.3d 1182, 1186 (10th Cir. 2007) (internal quotations and
citation omitted). Finally, “[a] court reviewing the
sufficiency of a complaint presumes all of plaintiff's
factual allegations are true and construes them in the light
most favorable to the plaintiff.” Hall v.
Bellmon, 935 F.2d 1106, 1109 (10th Cir. 1991).
assert that plaintiff's claims are based upon
defendants' turnover of contract proceeds pursuant to an
Internal Revenue Service (“IRS”) tax levy.
Defendants further assert that even if the proceeds turned
over to the IRS were not actually subject to levy or owned by
the delinquent taxpayer as plaintiff alleges, federal law,
and particularly 26 U.S.C. § 6332(e) and 26 C.F.R.
§ 301.6332-1(c)(2), provides defendants with a complete
defense in this case. Specifically, defendants contend that
so long as the delinquent taxpayer appeared to have some
interest in the property at issue, defendants are protected
and have no liability to plaintiff. Defendants further
contend that the allegations set forth in plaintiff's
Second Amended Complaint show that the delinquent taxpayer,
Mr. Cabelka, had, at a minimum, an apparent interest in the
disputed funds. In her response, plaintiff asserts that her
Second Amended Complaint seeks to recover funds still held by
defendants; funds that were not turned over to the IRS, and,
thus, any claimed immunity would not apply to these funds.
carefully reviewed the parties' submissions, as well as
plaintiff's Second Amended Complaint, the Court finds
that plaintiff's Second Amended Complaint should not be
dismissed. Specifically, the Court finds that in her Second
Amended Complaint, plaintiff is seeking, in part, the
recovery of funds still held by defendants. In her complaint,
40. Defendants have held on to Plaintiffs' wheat proceeds
for in excess of two years and have no valid ownership claim
to the wheat proceeds.
* * *
46. Upon information and belief, Defendants held on to
Plaintiff's money after the time matured for payment and
subsequently paid, according to the testimony of IRS agent,
Thirty to Forty Thousand Dollars ($30, 000.00 to $40, 000.00)
of the money to the Internal Revenue Service which would
leave a balance of approximately Thirty-Five Thousand Dollars
($35, 000.00) being wrongfully held by the Defendants.
Amended Complaint at ¶¶ 40, 46. The Court finds
that any immunity defendants would have under 26 U.S.C.
§ 6332(e) and 26 C.F.R. § 301.6332-1(c)(2) would
not apply to the funds that were not turned over to the IRS
and that are still being held by defendants. The Court further
finds that plaintiff has alleged sufficient facts to state a
claim for breach of contract and conversion, breach of
fiduciary duties and negligence, and tortious breach of
contract, misrepresentation, deceit, and fraud.
the Court DENIES defendants' Motion to Dismiss Second
Amended Complaint [docket no. 25].