From: cmecfautosender@flsd.uscourts.gov

Sent: Monday, June 19, 2017 3:29 PM

To: flsd_cmecf_notice@flsd.uscourts.gov

Subject: Activity in Case 9:16-cv-81928-RLR Baker v. Batmasian et al Order on Motion to Dismiss for Failure to State a Claim

 

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U.S. District Court

Southern District of Florida

Notice of Electronic Filing


The following transaction was entered on 6/19/2017 at 3:28 PM EDT and filed on 6/19/2017

Case Name:

Baker v. Batmasian et al

Case Number:

9:16-cv-81928-RLR

Filer:

WARNING: CASE CLOSED on 06/19/2017

Document Number:

104(No document attached)

Docket Text:
PAPERLESS ORDER granting Defendants' Motion to Dismiss [42]. Plaintiff's sole federal cause of action, Count I, alleges that Defendants are liable under 26 U.S.C. 7434 because Defendants "issued an information return to (Plaintiff) James Baker and the information was fraudulent." DE 32 at 39. That is incorrect. As Defendants point out, the information return, attached to Plaintiff's Amended Complaint, was not issued to Plaintiff. The information return was issued to a corporation-Yawkey Consulting Group, Inc.-that is not a party to this suit. DE 32-1 at 2. Defendants therefore argue that Plaintiff does not have standing to bring Count I as the alleged fraudulent return was not issued to him personally. Associated Builders, Inc. v. Ala. Power Co., 505 F.2d 97, 100 (5th Cir. 1974) (noting that when exhibits contradict allegations, exhibits govern); see also Warth v. Seldin, 422 U.S. 490 (1975) (holding that a plaintiff must allege a distinct injury to himself). In response to Defendants' argument, Plaintiff is completely silent-Plaintiff offers no argument whatsoever. As a result, this Court grants Defendants' Motion to Dismiss as to Count I for two reasons. First, the Motion is granted by default on this point pursuant to Local Rule 7.1(c). Second, the Motion is granted based upon the plain wording of 26 U.S.C. 7434(a) ("If any person willfully files a fraudulent information return with respect to payments made to any other person, such other person [Yawkey Consulting Group, Inc.] may bring a civil action...."). Count I is therefore dismissed solely as to Plaintiff James Baker. This dismissal is with prejudice because although Plaintiff has requested leave to amend in lieu of argument on this matter, the Court denies this request. The Court denies Plaintiff's request for leave to amend because (1) Plaintiff has already amended his complaint, (2) Plaintiff was aware of Defendants' argument on this matter as early as January 6, 2017, (3) Plaintiff amended his complaint after becoming so aware, (4) Plaintiff failed to add as a party-plaintiff the corporation to which the information return was issued, (5) Plaintiff has failed to provide any legal argument why the corporation need not be the plaintiff in this matter and (6) the amended pleadings deadline expired on March 4, 2017. Notably, Plaintiff's failure to respond to Defendants' argument on the issue of standing stands in stark contrast to the very extensive motion practice in this case. Because the Court is unaware of any basis for diversity jurisdiction and because the Court exercises its discretion not to exercise supplemental jurisdiction over Plaintiff's state law claim, Count II, that count is dismissed without prejudice. See Parker v. Scrap Metal Processors, Inc., 468 F.3d 733, 742 (11th Cir. 2006). The Clerk of the Court shall close this case and all other pending motions are denied as moot. Signed by Judge Robin L. Rosenberg on 6/19/2017. (bkd)

NOTICE: If there are sealed documents in this case, they may be unsealed after 1 year or as directed by Court Order, unless they have been designated to be permanently sealed. See Local Rule 5.4 and Administrative Order 2014-69.


9:16-cv-81928-RLR Notice has been electronically mailed to:

Chelsea A. Lewis     clewis@gkemploymentlaw.com, ckleppin@gkemploymentlaw.com, dcano@gkemploymentlaw.com, essclair@aol.com

Chris Kleppin     ckleppin@gkemploymentlaw.com, , essclair@aol.com

George Louis Sigalos     glsassistant@simonsigalos.com, info@simonsigalos.com

Heather Elise Kruzyk     hkruzyk@simonsigalos.com

Jennifer Boussy Carroll     jcarroll@simonsigalos.com

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