Opinion
Case No. 2:03-cv-539-FtM-29SPC.
August 25, 2004
ORDER
This matter comes before the Court on defendants' Motion to Dismiss (Doc. #27), filed on March 12, 2004. Plaintiff filed a Motion to Strike Defendants [sic] Motion to Dismiss (Doc. #35) and Memorandum of Law and points and authorities in support (Doc. #36) on April 7, 2004, which were construed as a response to defendants' Motion to Dismiss. (See Order, Doc. #43). The Motion to Dismiss is now ripe for consideration.
I.
In deciding a motion to dismiss, the Court must accept all factual allegations in a Complaint as true and take them in the light most favorable to plaintiff. Christopher v. Harbury, 536 U.S. 403, 406 (2002); Hill v. White, 321 F.3d 1334, 1335 (11th Cir. 2003). A Complaint should not be dismissed unless it appears beyond doubt that plaintiffs can prove no set of facts that would entitle them to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957) (footnote omitted); Marsh v. Butler County, Ala., 268 F.3d 1014, 1022 (11th Cir. 2001) (en banc). To satisfy the pleading requirements of Fed.R.Civ.P. 8, a complaint must simply give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002). However, dismissal is warranted under Fed.R.Civ.P. 12(b)(6) if, assuming the truth of the factual allegations of plaintiff's complaint, there is a dispositive legal issue which precludes relief. Neitzke v. Williams, 490 U.S. 319, 326 (1989); Brown v. Crawford County, Ga., 960 F.2d 1002, 1009-10 (11th Cir. 1992). The Court need not accept unsupported conclusions of law or of mixed law and fact in a Complaint. Marsh, 268 F.3d at 1036 n. 16. If matters outside the pleading are presented to and not excluded by the Court, the motion may be treated as one for summary judgment pursuant to Fed.R.Civ.P. 56, if notice is given. See Fed.R.Civ.P. 12(b); Jones v. Automobile Ins. Co. of Hartford, Conn., 917 F.2d 1528, 1532 (11th Cir. 1990).
II.
The Complaint for Declaratory and Injunctive Relief (Doc. #1) alleges that the Internal Revenue Service has failed or otherwise refused to produce records relating to deficiency assessments made for tax years 1987, 1988, and 1989 in response to Freedom of Information Act (FOIA) requests. Plaintiff alleges that numerous attempts, numbering about 65, have been made to obtain the records through the FOIA requests to no avail. Plaintiff further alleges that his retirement funds, as a result, have been held for over ten years. (See Doc. #1).
The IRS asserts that there are three FOIA requests dated August 14, 2003; August 28, 2003; and September 9, 2003. (Doc. #28, p. 1). Defendants argue that plaintiff has failed to exhaust his administrative remedies with respect to the 3 FOIA requests; that the issue is now moot because the IRS has in fact provided plaintiff with the requested documents; and that the named employees should be dismissed for lack of jurisdiction. Defendants' arguments are based on three Declarations by employees. (Docs. #29, #30, #31). Defendants' arguments are based on documents outside the pleadings, and are more appropriate on summary judgment. See Miscavige v. Internal Revenue Service, 2 F.3d 366, 367 (11th Cir. 1993). At this stage of the proceedings, the Court does not find that the motion to dismiss should be converted to one for summary judgment, even if notice were provided. Comparing the allegations in the Complaint with the Declarations demonstrates there are material factual disputes which would defeat a summary judgment motion. This portion of defendants' motion to dismiss will be denied.
With regard to the individually named defendants, the Court agrees that these parties are due to be dismissed. Under 5 U.S.C. § 552, the agency itself is the only properly named party, and the FOIA does not create a cause of action against individual employees of an agency. See Petrus v. Bowen, 833 F.2d 581, 582 (5th Cir. 1987).
Accordingly, it is now
ORDERED:
1. Defendants' Motion to Dismiss (Doc. #27) is GRANTED to the extent that defendants Constance Lewis, Charles Scheiner, C. Sills, Deborah G. Macmillan, Melanie Romano, Ms. Walters, the Disclosure Office — Fort Myers, Florida, the Disclosure Office — Atlanta, Georgia, and the Disclosure Office — Jacksonville, Florida, are DISMISSED with prejudice. The Clerk shall enter judgment accordingly as to these defendants. The Commissioner of the Internal Revenue Service shall remain as the only named defendant. The motion is otherwise DENIED.
2. The Commissioner of the Internal Revenue Service shall file an Answer to the Complaint within TEN (10) DAYS of the date of this Order.