Haver v. U.S. Internal Revenue Service et al

MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM

D. Mass.January 25, 2017

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS EASTERN DIVISION (BOSTON) CHRISTINE HAVER, ) ) Plaintiff, ) ) v. ) C.A. NO.: 1:16-cv-12605-DJC ) COMMISSIONER, UNITED STATES ) INTERNAL REVENUE SERVICE, ) COMMONWEALTH OF MASSACHUSETTS ) DEPARTMENT OF REVENUE, CKM-HAVER, ) LLC, PARAGON LIVERY, INC., THOMAS ) MARTYN HAVER, WILLIAM HAVER, TOWN ) OF MAYNARD, THOMAS BABAIAN, CPA, ) CLU, SUSAN M. STRICKLAND, CPA, and ) JOHN / JANE DOES A-Z, ) ) Defendants. ) ) MOTION OF THE DEFENDANT, SUSAN M. STRICKLAND, CPA, TO DISMISS AND LOCAL RULE 7.1(a)(2) CERTIFICATION The defendant, Susan M. Strickland (“Strickland”), hereby moves to dismiss the Plaintiff’s Complaint pursuant to Fed. R. Civ. P. 12(b)(6). As described in detail in the Memorandum of Law filed herewith, the Complaint simply does not allege a plausible or viable claim for relief against Strickland. Moreover, a reading of the Complaint confirms the Plaintiff has no basis for any allegation against Strickland and that the Plaintiff filed her Complaint against Strickland in order to conduct a classic “fishing expedition.” The only relief sought by the Plaintiff against Strickland is a request that the Court order Strickland to “immediately provide plaintiff with copies of absolutely any and all documents and work papers involving either plaintiff and / or Case 1:16-cv-12605-DJC Document 9 Filed 01/25/17 Page 1 of 3 2 any of the cited defendants, including any and all tax returns.” Furthermore, to the extent the plaintiff is attempting to assert a negligence claim, the Complaint does not sufficiently allege either a timely or a viable cause of action, and fails to include, inter alia, any viable allegations that Strickland owed the Plaintiff a duty of care or that the action against Strickland is timely. For these reasons, the Plaintiff’s Complaint against Strickland should be dismissed. WHEREFORE, the defendant, Susan M. Strickland, CPA, requests that the Court dismiss the Complaint and enter Judgment in her favor. LOCAL RULE 7.1(a)(2) CERTIFICATION Counsel for Strickland hereby certifies that on January 24, 2017, at 11:05 a.m., I attempted to contact Ms. Haver by telephone at the number listed on the Court’s docket. Ms. Haver did not answer her telephone. An unidentified person answered the telephone and I informed that person that I represented Strickland, that I was filing a motion to dismiss on her behalf, and that I wanted to speak with Ms. Haver. The person stated that Dr. Haver was in surgery all day, that he would give her the message, and that she would “jingle” me right back. Also on January 24, 2017, at 11:32 a.m., I sent an e-mail to Ms. Haver at the address listed in the addendum to her Complaint stating that I represented Strickland and that I wanted to speak with her concerning the motion to dismiss I was filing on behalf of Strickland. I did not hear from the Plaintiff on January 24, 2017. On January 25, 2017, I called Ms. Haver again using the telephone number listed on the docket (which appears in the schedule appended to her Complaint) and the same person answered the phone. He identified himself as Egon Cholakian. I again stated that I was filing a motion to dismiss and that I wanted to speak with the plaintiff about it. Mr. Cholakian stated the plaintiff was in surgery all day but that he would give her the message. He also stated Case 1:16-cv-12605-DJC Document 9 Filed 01/25/17 Page 2 of 3 3 that a Jeffrey Denner would be representing her in this matter, and he gave me telephone number for attorney Denner. I called attorney Denner at the number given, (617) 816-0800, at 9:03 a.m. on January 25, 2017. Attorney Denner stated he would call me back in 45 minutes. I have waited all day for a call or any other communication from him. I have not received any notice that Mr. Denner has entered an appearance on behalf of the Plaintiff. Furthermore, I did not receive a call or message back from Mr. Denner, the Plaintiff, or Mr. Cholakian. The Plaintiff’s Complaint was served on Strickland on January 7, 2017 and, as a result, the response is due. Respectfully submitted, Susan M. Strickland, CPA, by her attorneys, DATED: 1/25/2017 /s/ Alan D. Hoch Alan D. Hoch, BBO# 548645 Email: alan@alanhochlaw.com Alan D. Hoch, Esq. 106 Peabody Street Groton, MA 01450 Phone: (978) 448-0409 Fax: (978) 448-3733 CERTIFICATE OF SERVICE I hereby certify that this document filed through the CM/ECF system will be sent electronically to the registered participants as identified on the Notice of Electronic Filing (NEF) and to the Plaintiff by first-class mail, postage prepaid at Apt. 604, 8301 Bay Parkway, Apartment 604, Brooklyn, NY 11214. /s/ Alan D. Hoch, BBO# 548645 Case 1:16-cv-12605-DJC Document 9 Filed 01/25/17 Page 3 of 3