                        UNITED STATES DISTRICT COURT
                        FOR THE DISTRICT OF COLUMBIA
____________________________________
                                     )
STEPHEN J. LINDSEY                   )
and PATRICIA L. LINDSEY,             )
                                     )
                   Plaintiff,        )
                                     )
      v.                             )   Civil Action No. 05-1761 (RBW)
                                     )
UNITED STATES OF AMERICA,            )
                                     )
                   Defendant.        )
____________________________________)


                                  MEMORANDUM OPINION

       Steven J. Lindsey and Patricia L. Lindsey, the plaintiffs in this civil suit, allege that the

United States government, through the Internal Revenue Service (the “IRS”), “recklessly,

intentionally[,] or by reason of negligence disregarded and continue to disregard provisions of

Title 26 of the United States Code [(the “Internal Revenue Code”)] and the regulations

promulgated thereunder.” Complaint, Petition, and Claim in the Nature of a Complaint, Petition,

and Claim under the Authority of 26 U.S.C. § 7433 (the “Compl.”) ¶ 1. On August 22, 2006, the

Court issued a memorandum opinion and accompanying order addressing both the defendant’s

motion to dismiss for lack of proper service and its supplemental motion to dismiss for lack of

subject-matter jurisdiction. See generally Lindsey v. United States, 448 F. Supp. 2d 37 (D.D.C.

2006) (Walton, J.). In that memorandum opinion, the Court held that it had to deny the

defendant’s motion to dismiss for lack of proper service “because the pro se plaintiffs were not

provided advance notice of the necessity of complying with the precise terms of [Federal Rule of

Civil Procedure] 4,” had to grant the defendant’s supplemental motion “because [the Court]

lack[ed] jurisdiction over three forms of relief sought by the plaintiffs and because the plaintiffs
ha[d] failed to exhaust their administrative remedies with respect to the only other type of relief

requested,” and would “grant the plaintiffs limited leave to amend their complaint” to include “a

facial challenge to 26 C.F.R. § 301.7433-1” if the plaintiffs so desired. Id. at 63.

       When the plaintiffs failed to timely file an amended complaint raising such a challenge,

the Court entered an order dismissing the plaintiff’s complaint with prejudice and closing this

case (the “Dismissal Order”). Dismissal Order at 1. Thereafter, on March 12, 2007, the

plaintiffs filed a motion for reconsideration of that order pursuant to Federal Rule of Civil

Procedure 60. Ultimately, the Court granted in part and denied in part that motion in a

memorandum opinion issued on February 1, 2008. Lindsey v. United States, 532 F. Supp. 2d

144, 149 (D.D.C. 2008) (Walton, J.). Specifically, the Court held that it had erred in dismissing

the plaintiffs’ claims filed under 28 U.S.C. § 7433 for failure to exhaust the administrative

remedies required by 26 C.F.R. § 301.7433-1 because the failure to exhaust such remedies was

an affirmative defense that could not be invoked in a motion to dismiss pursuant to Federal Rule

of Civil Procedure 12(b)(6). Id. at 148-49.

       The Court therefore vacated its Dismissal Order with respect to those claims and re-

opened the plaintiffs’ case, but, consistent with the service requirements of Federal Rule of Civil

Procedure 4, separately directed the plaintiffs “to show cause why the Court should not dismiss

their complaint without prejudice unless [they] file[d] proof of proper service on the defendant

within sixty days” of the order effectuating the Court’s memorandum opinion. Id. at 149. The

Court further explained that if the plaintiffs “file[d] proof of proper service in a timely manner,”

id., the Court would “permit the defendant an opportunity to file a motion to dismiss for failure

to state a claim under Rule 12(b)(6) or for summary judgment under Rule 56 before directing the

Clerk of the Court to schedule an initial scheduling conference in this case,” id. at 150.




                                                  2
         The plaintiffs timely filed proof of executed service of process on the defendant on

March 27, 2008. In response to the plaintiffs’ service of process, the defendant filed another

motion to dismiss the plaintiffs’ remaining claims on May 23, 2008. In support of that motion,

the defendant argues that “[a]ll but three of [the] plaintiffs’ allegations [in their complaint] relate

to non-collection activities, and thus[] are not cognizable under [§] 7433.” Memorandum in

Support of United States’[s] Third Motion to Dismiss Complaint at 5. The defendant further

argues that “all” of the plaintiffs’ remaining allegations “must be dismissed because they are too

conclusory to satisfy the notice pleading standards of [Federal Rule of Civil Procedure] 8(a).”

Id. at 6. According to the defendant, “[the p]laintiffs’ complaint is completely devoid of any

factual assertions, and thus[] fails to provide either notice of the basis of their claims or the

grounds upon which they rest.” Id. at 7. The defendant therefore requests that the plaintiffs’

complaint be dismissed in its entirety. Id. at 8.

         The plaintiffs do not contest the defendant’s argument that all but three of the allegations

in the plaintiffs’ complaint are unrelated to collection activities under § 7433; therefore, the

Court deems this argument to be conceded. 1 With respect to the remaining three allegations, the



1
  “It is understood in this Circuit that when a plaintiff files an opposition to a dispositive motion and addresses only
certain arguments raised by the government, a court may treat those arguments that the plaintiff failed to address as
conceded.” Buggs v. Powell, 293 F. Supp. 2d 135, 141 (D.D.C. 2003) (Walton, J.). The Court’s authority to treat
unopposed arguments as conceded derives from Local Civ. R. 7.1(b), which states as follows:

                  Within 11 days of the date of service or at such other time as the court may
                  direct, an opposing party shall serve and file a memorandum of points and
                  authorities in opposition to the motion. If such a memorandum is not filed
                  within the prescribed time, the court may treat the motion as conceded.

(Emphasis added.)

“Courts have interpreted this local rule to apply to specific arguments within a memorandum opposing a motion,”
United States v. Real Prop., 287 F. Supp. 2d 45, 61 (D.D.C. 2003) (Walton, J.), and the District of Columbia Circuit
“‘ha[s] yet to find that a district court’s enforcement of this rule constituted an abuse of discretion,’” Buggs, 293 F.
Supp. 2d at 141 (quoting FDIC v. Bender, 127 F.3d 58, 67-68 (D.C. Cir. 1997) (internal citations omitted)). The
Court therefore declines “to act as an advocate for [ ] the [plaintiffs] and construct their legal arguments on [their]
(continued . . . )


                                                           3
plaintiffs assert that they have satisfied the minimal requirements of notice pleading under Rule

8, Memorandum in Support of Plaintiffs’ Response to Defendant’s Third Motion and

Memorandum to Dismiss Complaint (the “Pls.’ Opp’n”) ¶¶ 1-2, 5, 7-9, 13-14, and that the

defendant’s motion should be construed instead as a motion for a more definite statement under

Federal Rule of Civil Procedure 12(e), id. ¶¶ 6, 10-12. The plaintiffs therefore request that the

Court either order the defendant to clarify that its current motion to dismiss is actually intended

to be a motion for a more definite statement or compel the defendant to file such a motion. Id. at

11-12.

         The plaintiffs’ position is entirely without merit. While it is true that a complaint need

only set forth a “short and plain statement of the claim showing that the pleader is entitled to

relief” to survive a motion to dismiss under Rule 12(b)(6), Fed. R. Civ. P. 8(a), 2 “a plaintiff’s

obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and

conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). “Without some factual allegation in the

complaint,” the plaintiffs cannot “satisfy the requirement of providing not only ‘fair notice’ of

the nature of the claim, but also ‘grounds’ on which the claim rests.” Id. at 556 n.3. 3



behalf in order to counter those in the motion to dismiss.” Real Prop., 287 F. Supp. 2d at 61 (internal citation and
quotation marks omitted).
2
  The Court recognizes that the plaintiffs’ complaint, having been filed by the plaintiffs pro se, must be held to “less
stringent standards than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520 (1972).
“Nonetheless, a pro se complaint, like any other, must present a claim upon which relief can be granted by the
court.” Henthorn v. Dep’t of Navy, 29 F.3d 682, 684 (D.C. Cir. 1994). For the reasons set forth below, the
plaintiffs’ allegations fail to state a claim for relief under even the most generous of interpretations, and their
complaint must therefore be dismissed pursuant to Rule 12(b)(6).
3
  The plaintiffs’ reliance on Conley v. Gibson, 355 U.S. 41(1957) (cited in Pls.’ Opp’n ¶ 2), is unavailing in light of
the Supreme Court’s observation in Bell Atlantic that the expansive language in Conley to the effect that a
complaint should not be dismissed “unless it appears beyond doubt that the plaintiff can prove no set of facts in
support of his claim which would entitle him to relief,” id. at 45-46, actually “described the breadth of opportunity
to prove what an adequate complaint claims, not the minimum standard of adequate pleading to govern a
(continued . . . )


                                                           4
         The “allegations” set forth in the plaintiffs’ complaint consist almost entirely of legal

arguments regarding the Internal Revenue Code. See Compl. ¶¶ 8-25 (setting the forth the

putative legal bases for the plaintiffs’ claims). Only one paragraph in the entire complaint—

paragraph 7—alleges any wrongdoing by the IRS at all, and that paragraph consists of nothing

more than a bare-bones assertion that the IRS “intentionally, or by reason of negligence[,]

disregarded” numerous provisions of the Internal Revenue Code, which the plaintiffs then list.

Id. ¶ 7. And though the plaintiffs purport to explain how the IRS violated these various

provisions, these explanations consist of nothing more than blanket assertions that various

provisions of these statutes have been violated. Id. ¶¶ 7(a)-7(r). In other words, there are no

facts alleged in the complaint at all, just unsupported assertions of statutory violations.

         As the Court explained in a case involving similar claims against the IRS, such

“allegations” are “just the sort of ‘labels and conclusions’ proscribed by the Supreme Court in

Bell Atlantic.” Shane v. United States, Civil Action No. 07-577 (RBW), 2008 WL 101739, at *8

(D.D.C. Jan. 9, 2008) (Walton, J.). Absent any indication as to “where, when, and how” the IRS

engaged in the behavior ostensibly challenged by the plaintiffs, the defendant cannot be said to

have received “fair notice” of the “grounds” on which the plaintiffs’ claims rest. Bell Atl., 550

U.S. at 556 n.3. Thus, the plaintiffs’ claims fail to satisfy even the minimal requirements of Rule

8(a).

         Nor would it be appropriate to treat the defendant’s motion as a motion for a more

definite statement pursuant to Rule 12(e). Such motions “are typically disfavored by courts,”

Rahman v. Johanns, 501 F. Supp. 2d 8, 19 (D.D.C. 2007), and in any event are properly filed

where a plaintiff’s complaint is “unintelligib[le],” not where a complaint suffers for “lack of

complaint’s survival,” and had, “after puzzling the profession for 50 years, . . . earned its retirement,” Bell Atl., 550
U.S. at 563.



                                                            5
detail.” Towers Trent Ass’n v. Towers Ltd. P’ship, 563 F. Supp. 566, 569 (D.D.C. 1983). In

this case, the problem with the plaintiffs’ complaint is not any ambiguity as to the meaning of

their allegations, see Fed. R. Civ. P. 12(e) (permitting a party to request a more definite

statement where the pleading in question “is so vague or ambiguous that the party cannot

reasonably prepare a response”), but rather that the complaint fails to allege “enough facts to

state a claim that is plausible on its face.” Bell Atl., 550 U.S. at 570. Accordingly, dismissal,

rather than a more definite statement, is the appropriate remedy. See id. (“Because the plaintiffs

have not nudged their claims across the line from conceivable to plausible, their complaint must

be dismissed.”)

         SO ORDERED this 27th day of April, 2009. 4


                                                                         REGGIE B. WALTON
                                                                         United States District Judge




4
   This memorandum opinion accompanies an earlier order issued by the Court (1) granting the defendant’s motion
to dismiss, (2) dismissing the plaintiffs’ complaint in its entirety and closing this case, and (3) specifying that the
order would be stayed until the Court issued this memorandum opinion. Thus, the earlier order entered by the Court
is no longer stayed as of the date of the issuance of this memorandum opinion.



                                                           6
