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Leitner v. United States

July 22, 2010

MARK DANIEL LEITNER, PLAINTIFF,
v.
UNITED STATES, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge

MEMORANDUM OPINION

Plaintiff Mark Daniel Leitner, acting pro se, initially filed the above-captioned action in the Superior Court for the District of Columbia. The case was subsequently removed to this Court pursuant to 28 U.S.C. §§ 1441(b) and 1442(a)(1). Although the exact contours of Plaintiff's claims are difficult to discern, Plaintiff's lawsuit appears to be principally aimed at challenging his criminal indictment in the United States District Court for the Northern District of Florida for federal tax violations. To that end, Plaintiff seeks declaratory and injunctive relief vacating his indictment in the United States District Court for the Northern District of Florida, enjoining all further proceedings in that criminal action, and declaring his pretrial conditions to be void; a writ of habeas corpus regarding pretrial conditions placed upon him by the Honorable M. Casey Rodgers, United States District Judge for the Northern District of Florida; and damages of $525,000 stemming from his incarceration in connection with those criminal charges. Now pending before the Court is Defendants' Motion to Dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Upon consideration of the Motion, the parties' responsive briefings, the relevant case law, and the record of this case as a whole, the Court shall GRANT Defendants' [10] Motion to Dismiss for the reasons set forth below.

I. BACKGROUND

The above-captioned action was originally filed in the Superior Court for the District of Columbia on November 13, 2009, and was subsequently removed to this Court on December 9, 2009. See Notice of Removal, Docket No. [1]. Plaintiff has named as Defendants in this action a) United States Attorney General Eric Holder, b) Tiffany Eggers, Assistant United States Attorney, whose assigned post of duty is in Pensacola, Florida, c) Thomas Kirwin, Acting United States Attorney for the Northern District of Florida, d) Michael John Watling, a Trial Attorney within the Criminal Enforcement Section Southern Region of the Tax Division, United States Department of Justice, e) William M. McCool, Clerk of Court for the United States District Court in the Northern District of Florida, f) the Honorable M. Casey Rodgers, United States District Court Judge in the Northern District of Florida, Pensacola Division (collectively, "Individual Defendants"), and g) the United States (together with the Individual Defendants, "Defendants").

Given the largely incoherent nature of Plaintiff's pro se Complaint, it is difficult to ascertain the exact relief Plaintiff now seeks. From the Court's own review of the Complaint, it appears that Plaintiff's lawsuit is primarily directed at challenging his criminal indictment in the Northern District of Florida for federal tax violations, see United States v. Hirmer, et al., Crim. Act. No. 3:08-cr-00079-MCR-11. Specifically, Plaintiff seeks injunctive and declaratory relief vacating his indictment in the United States District Court for the Northern District of Florida, enjoining all further proceedings in that criminal action, and declaring his pretrial conditions to be void. See Notice of Removal, Docket No. [1], Ex. A at pp. 6-57 (hereinafter, "Complaint"). In addition, he seeks a writ of habeas corpus regarding pretrial conditions placed upon him by Judge Rodgers, monetary damages in the amount of $525,000 stemming from his incarceration in connection with the Florida criminal proceedings, and the return of certain unspecified property allegedly taken from him by Defendants. See id. Finally, although less than clear, Plaintiff also appears to have alleged several additional claims premised upon various legal theories, including: the Trading with the Enemy Act, unspecified hate crimes statutes; the Racketeer Influenced Corrupt Organizations Act (RICO); the Freedom of Information Act (FOIA); the District of Columbia Constitution; fraud; bank fraud; conspiracy/obstruction of justice; tax fraud; money laundering; wire fraud; perjury; and civil rights violations. See id. With the exception of Plaintiff's FOIA-related allegations, he has failed to allege any facts in support of these additional claims. See generally id.

Plaintiff has not clearly specified in his Complaint whether he intended to sue the Individual Defendants in their official or individual capacities or both. Upon review of the Complaint, it is readily apparent that Plaintiff has asserted claims against the Individual Defendants in their official capacities only. Plaintiff repeatedly asserts that he is suing the Individual Defendants for their "actions by and through" the United States and also alleges that the Individual Defendants were each "acting as [the United States'] authorized agent and or employee" at the time they allegedly engaged in the conduct of which Plaintiff now complains. Compl. at pp. 7-8. Plaintiff further asserts that the Individual Defendants "are presumed to be working for and or were employees and/or authorized agents of the main Defendant, 'the United States'" and that "[i]t [was] through gross misuse of their position[s] as such, that Petitioner was and is currently being damaged." Id. at p. 8. There is no suggestion in the Complaint that Plaintiff has sued the Individual Defendants for actions taken in their individual capacities. See generally id. As such, it is apparent that he has sued the Individual Defendants in their official capacities only.

On December 3, 2009, while this case remained pending in Superior Court, Plaintiff filed a "Motion Request for Emergency Injunction." See Notice of Removal, Docket No. [1], Ex. A at pp. 58-73 (hereinafter, "Pl.'s Mot. for P.I."). As set forth therein, Plaintiff sought an "emergency injunction" pursuant to Federal Rule of Civil Procedure 65 enjoining "all proceedings relating to Petitioner specifically in regards to alleged indictment/case No. 3:08-cr-0079 MCR out of the United States District Court Northern District of Florida, Pensacola Division." See id. In addition, shortly after the case was removed to this Court, Plaintiff filed an "Objection to Notice of Removal," which the Court, cognizant of Plaintiff's pro se status, construed as a motion for remand pursuant to 28 U.S.C. § 1447(c). See Jan. 5, 2010 Order at 2. By Memorandum Opinion and Order dated January 18, 2010, the Court denied both Plaintiff's motion to remand and his request for a preliminary injunction. See Leitner v. United States, 679 F. Supp. 2d 37 (D.D.C. 2010).

The matter now comes before the Court on Defendants' [10] Motion to Dismiss. As set forth therein, Defendants urge that Plaintiff's Complaint should be dismissed both for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1) and for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). See generally Defs.' MTD, Docket No. [10]. On January 18, 2010, the Court advised Plaintiff that Defendants had filed a Motion to Dismiss and set a schedule for the filing of Plaintiff's opposition; the Court further advised Plaintiff that if he failed to timely respond, the Court would treat Defendants' Motion as conceded and dismiss Plaintiff's Complaint. See Jan. 18, 2010 Order, Docket No. [16].

In response, Plaintiff filed a pleading entitled "Rejection of Defendants [sic] Motion to Dismiss Dated January 14th, 2010." See Docket No. [18], (hereinafter, "Pl.'s Opp'n"). Rather than respond to Defendants' substantive arguments in favor of dismissal, however, Plaintiff simply reasserted his position - already rejected by the Court - that this action must be remanded to the Superior Court for the District of Columbia. See id. Defendants in turn filed a Reply in support of their Motion to Dismiss,noting that Plaintiff had wholly failed to address the arguments contained in Defendants' Motion and urging the Court to therefore grant the Motion as conceded. See Defs.' Reply, Docket No. [19]. Briefing on Defendants' Motion to Dismiss was therefore fully complete at that time.

Nonetheless, on February 12, 2010, Plaintiff filed an additional pleading with this Court purporting to respond to Defendants' Reply, in which Plaintiff once again reiterates his position that this Court must remand this case back to the Superior Court for the District of Columbia. See Pl.'s Rejection of Defendants' Reply Memorandum Dated January 28th, 2010, Docket No. [20], (hereinafter, "Pl.'s Surreply"). Significantly, Plaintiff did not seek prior leave of the Court to file the pleading nor has he at anytime since filed an appropriate motion seeking the Court's permission to file the surreply memorandum. The filing is therefore not in compliance with the local rules of this Court. Notwithstanding this error, given Plaintiff's pro se status, the Court has in its discretion reviewed the filing and shall consider it, to the extent relevant, in ruling upon Defendants' Motion to Dismiss.*fn1

Finally, the Court takes judicial notice that, on March 31, 2010, after briefing on Defendant's Motion to Dismiss was completed, Plaintiff was convicted of conspiracy to defraud the Internal Revenue Service and to commit wire fraud. See United States v. Hirmer, et al., Crim. Act. No. 3:08-cr-00079-MCR-11, Docket No. [1166]. Plaintiff is currently scheduled to appear before Judge Rodgers for sentencing on July 29, 2010. See id., Docket No. [1204].

II. LEGAL STANDARDS

A. Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(1)

A court must dismiss a case when it lacks subject matter jurisdiction pursuant to Rule 12(b)(1). In evaluating a motion to dismiss under Rule 12(b)(1), a court may "consider the complaint supplemented by undisputed facts evidenced in the record, or the complaint supplemented by undisputed facts plus the court's resolution of disputed facts." Coalition for Underground Expansion, 333 F.3d at 198 (citations omitted); see also Jerome Stevens Pharm., Inc. v. Food & Drug Admin., 402 F.3d 1249, 1253 (D.C. Cir. 2005) ("[T]he district court may consider materials outside the pleadings in deciding whether to grant a motion to dismiss for lack of jurisdiction."); Vanover v. Hantman, 77 F. Supp. 2d 91, 98 (D.D.C. 1999), aff'd, 38 F. App'x 4 (D.C. Cir. 2002) ("[W]here a document is referred to in the complaint and is central to plaintiff's claim, such a document attached to the motion papers may be considered without converting the motion to one for summary judgment.") (citing Greenberg v. The Life Ins. Co. of Va., 177 F.3d 507, 514 (6th Cir. 1999)). "At the motion to dismiss stage, counseled complaints, as well as pro se complaints, are to be construed with sufficient liberality to afford all possible inferences favorable to the pleader on allegations of fact." Settles v. U.S. ...


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