     18‐2422‐cv
     Vidurek v. Koskinen


                               UNITED STATES COURT OF APPEALS
                                   FOR THE SECOND CIRCUIT

                                            SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION
TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS
GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S
LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH
THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PARTY
CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT
REPRESENTED BY COUNSEL.

 1         At a stated term of the United States Court of Appeals for the Second Circuit,
 2   held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the
 3   City of New York, on the 15th day of October, two thousand nineteen.
 4
 5          PRESENT: PIERRE N. LEVAL,
 6                           RAYMOND J. LOHIER, JR.,
 7                           RICHARD J. SULLIVAN,
 8                                   Circuit Judges.
 9          ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐
10          JOHN VIDUREK, KIMBERLY VIDUREK,
11
12                          Plaintiffs‐Appellants,
13
14                  v.                                                           No. 18‐2422‐cv
15
16          JOHN KOSKINEN, Commissioner, IRS;
17          BRENDA DIAL, assumed robo‐signer;
18          JOHN/JANE DOE, Tax Examiner MS 4388 ID
19          #1000099691; J. MELENDEZ, ID#0708622,
20          MARYELLEN BENECKE, Revenue Agent
21          ID#1001022543; LINDA PIACK, Revenue Agent,
22          IRS ID#1001023196; JEANETTE WILLET, Group
 1   Manager, IRS; DANIEL H. SCHULMAN, Pres,
 2   CEO, Pay Pal Holdings Inc.; GUY CHIARELLO,
 3   Pres, First Data Merchant Serv Corp.; MARY
 4   MADDEN, Pres, CEO Hudson Valley Credit
 5   Union; MICHAEL J QUINN, Pres, CEO,
 6   Rhinebeck Savings Bank; JACK DORSEY, Pres,
 7   CEO, Square Inc.; UNITED STATES INTERNAL
 8   REVENUE SERVICE, aka IRS,
 9
10                    Defendants‐Appellees.
11   ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐
12
13   FOR APPELLANT:                                            John Vidurek, Kimberly
14                                                             Vidurek, pro se, Hyde Park,
15                                                             NY.
16
17   FOR APPELLEES:                                            Charles S. Jacob, Christopher
18                                                             Connolly, Assistant United
19                                                             States Attorneys, for Geoffrey
20                                                             S. Berman, United States
21                                                             Attorney for the Southern
22                                                             District of New York, New
23                                                             York, NY, for the Internal
24                                                             Revenue Service (“IRS”), John
25                                                             Koskinen, Brenda Dial,
26                                                             John/Jane Doe, J. Melendez,
27                                                             Maryellen Benecke, Linda
28                                                             Piatek, Janette Willet;
29
30                                                             John W. Bailey, Bailey, Johnson
31                                                             & Peck, P.C., Albany, NY, for
32                                                             Michael J. Quinn;




                                                  2
 1                                                         John W. Peterson, Polsinelli
 2                                                         PC, Nashville, TN, for Guy
 3                                                         Chiarello;
 4
 5                                                         Daniel C. Stafford, McCabe &
 6                                                         Mack, LLP, Poughkeepsie, NY,
 7                                                         for Mary Madden.
 8
 9      Appeal from an order of the United States District Court for the Southern

10   District of New York (Vincent L. Briccetti, Judge).

11      UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

12   AND DECREED that the judgment of the District Court is AFFIRMED.

13      John Vidurek and Kimberly Vidurek, pro se, appeal from a judgment of the

14   District Court (Briccetti, J.), granting the Defendants‐appellees’ motions to dismiss

15   under Rules 12(b)(1), (5), and (6) of the Federal Rules of Civil Procedure, declining

16   to exercise supplemental jurisdiction over the Vidureks’ state law claims, denying

17   them leave to amend their complaint, and imposing an injunction barring them

18   from filing future complaints absent court permission. We assume the parties’

19   familiarity with the underlying facts and the record of prior proceedings, to

20   which we refer only as necessary to explain our decision to affirm.




                                               3
 1      1. Sovereign Immunity

 2      The Vidureks sued the Internal Revenue Service (IRS) and several IRS

 3   employees, as well as officers of financial institutions where the Vidureks held

 4   accounts, alleging that the IRS falsely accused John Vidurek of not paying his

 5   taxes in 2008 and 2009, and that the banks illegally shared his financial

 6   information with the IRS without his consent. The Vidureks alleged violations of

 7   their civil rights and conspiracy to violate their civil rights under 18 U.S.C. §§ 241,

 8   242, 1983, 1985, and 1986, as well as violations of and conspiracy to violate the

 9   Racketeer Influenced and Corrupt Organizations Act (RICO). They also filed

10   federal claims of mail fraud and a Fourth Amendment violation, as well as state

11   law claims for trespass, fraud, negligence, vindictive recklessness, abuse of

12   process, and harassment.

13      As relevant to this appeal, the District Court granted the Defendants‐appellees’

14   motions to dismiss, holding that the Vidureks’ claims against the IRS and its

15   employees were barred by sovereign immunity, that all but one of the remaining

16   defendants were not properly served, and that the Vidureks failed to state a claim

17   against the remaining defendant, Michael J. Quinn, a top executive at one of the


                                                4
 1   financial institutions where the Vidureks had an account. The District Court

 2   further denied the Vidureks leave to amend their complaint, declined to exercise

 3   supplemental jurisdiction over their remaining state law claims, and enjoined

 4   them from filing additional complaints regarding their 2008 and 2009 tax liability

 5   and subsequent lien absent court permission.

 6      “The doctrine of sovereign immunity is jurisdictional in nature.” Makarova

 7   v. United States, 201 F.3d 110, 113 (2d Cir. 2000). When the district court

 8   dismisses a claim under Rule 12(b)(1) of the Federal Rules of Civil Procedure for

 9   lack of subject matter jurisdiction, we review its factual findings for clear error

10   and its legal conclusions de novo. Id. The district court “may refer to evidence

11   outside the pleadings,” and “[a] plaintiff asserting subject matter jurisdiction has

12   the burden of proving by a preponderance of the evidence that it exists.” Id.

13      “Absent an unequivocally expressed statutory waiver, the United States, its

14   agencies, and its employees (when functioning in their official capacities) are

15   immune from suit based on the principle of sovereign immunity.” Cty. of

16   Suffolk v. Sebelius, 605 F.3d 135, 140 (2d Cir. 2010) (quotation marks omitted).

17   To survive a Rule 12(b)(1) motion to dismiss, then, “the plaintiff bears the burden


                                                5
 1   of establishing that her claims fall within an applicable waiver.” Makarova, 201

 2   F.3d at 113.

 3      The Vidureks failed to satisfy this burden. Even if we construed their

 4   complaint liberally to allege that any of the defendants were liable under the

 5   Federal Torts Claims Act, that act does not apply to “[a]ny claim arising in respect

 6   of the assessment or collection of any tax.” 28 U.S.C. § 2680(c); see Aetna Cas. &

 7   Sur. Co. v. United States, 71 F.3d 475, 477 (2d Cir. 1995). Similarly, a claim for

 8   damages for unauthorized tax collection under 26 U.S.C. § 7433(a) required the

 9   Vidureks to exhaust their administrative remedies before bringing an action in

10   federal court. See 26 U.S.C. § 7433(d)(1). But the Vidureks failed to demonstrate

11   that they exhausted their administrative remedies. We therefore affirm the

12   District Court’s dismissal of their claims against the IRS and its employees acting

13   in their official capacities.

14      2. Insufficient Service of Process

15      We review the District Court’s “dismissal under Rule 12(b)(5) based on

16   insufficient service of process for abuse of discretion.” Dickerson v. Napolitano,

17   604 F.3d 732, 740 (2d Cir. 2010). “[W]hen a defendant moves to dismiss under


                                               6
 1   Rule 12(b)(5), the plaintiff bears the burden of proving adequate service.” Id. at

 2   752 (quotation marks omitted). Rule 4(e) generally provides that individuals

 3   may be served by either (1) following the relevant state law procedures for service

 4   of the State where the district court is located or where service is made, or (2)

 5   personal delivery, leaving a copy at the individual’s dwelling or usual abode with

 6   a person who resides there, or delivering a copy to an agent authorized to receive

 7   process. Fed. R. Civ. P. 4(e); see Fed. R. Civ. P. 4(i)(3).

 8       In their affidavit of service, the Vidureks stated that they mailed the

 9   defendants the “Summons[,] Action at law pages i‐iv, pages 1‐47[,] Memorandum

10   of Law in Support of Jurisdiction pages 1‐10[, and] Affidavits” by “depositing a

11   true copy in the United States Post Office.” Dist. Ct. Dkt. No. 4, at 1. But these

12   methods of service do not satisfy any of the methods of service described in Rule

13   4(e)(2) or comply with the service procedures for any of the relevant States. See

14   Cal. Civ. Proc. Code §§ 415.10, 415.20, 415.30; Colo. R. Civ. P. 4(e), (g); N.Y.

15   C.P.L.R. §§ 308, 312‐a(a); Utah R. Civ. P. 4(d)(1), (d)(2)(A). We therefore agree

16   that the Vidureks’ method of service was insufficient.1


     1 The Vidureks argue that service was proper under N.Y. C.P.L.R. § 2103. But
     that provision applies to “papers,” not the service of a summons and complaint.
                                                7
 1      The Vidureks also argue that they should have received an opportunity to cure

 2   any errors in service of process. Their argument is without merit. “[W]e

 3   generally will not reverse a district courtʹs dismissal of an action for lack of

 4   service unless the appellant can advance some colorable excuse for neglect.”

 5   Meilleur v. Strong, 682 F.3d 56, 61 (2d Cir. 2012) (quotation marks omitted). The

 6   Vidureks have not presented a colorable excuse here.

 7      3. Failure to State a Conspiracy Claim Under § 1985(3)

 8      The Vidureks also challenge the District Court’s dismissal of their claims

 9   against the defendants under 42 U.S.C. § 1985(3) for conspiracy to interfere with

10   their civil rights and under 42 U.S.C. § 1986, which is predicated upon a valid

11   § 1985 claim. Among other elements of a § 1985 claim, there must be some

12   “racial, or perhaps otherwise class‐based, invidiously discriminatory animus

13   behind the conspirators’ action.” Carter v. Inc. Vill. of Ocean Beach, 759 F.3d

14   159, 164 (2d Cir. 2014) (quotation marks omitted). But even assuming that

15   actions animated by animus against the “Tea Party” and its members would

16   violate § 1985(3), but see Gleason v. McBride, 869 F.2d 688, 695 (2d Cir. 1989)


     See N.Y. C.P.L.R. § 2103; Happy Age Shops, Inc. v. Matyas, 513 N.Y.S.2d 710, 710
     (2d Dep’t 1987).
                                                8
 1   (citing Keating v. Carey, 706 F.2d 377, 386–88 (2d Cir. 1983)), the Vidureks’

 2   allegations that the Defendants‐appellees’ actions were motivated by such animus

 3   are conclusory, as the District Court determined. We therefore affirm the District

 4   Court’s dismissal of both the § 1985 and § 1986 claims. See Graham v.

 5   Henderson, 89 F.3d 75, 82 (2d Cir. 1996).

 6      4. Failure to State a Claim Against Michael Quinn

 7      The Vidureks also challenge the District Court’s dismissal of the remaining

 8   claims against Quinn. We review de novo the dismissal of a complaint pursuant

 9   to Rule 12(b)(6), accepting the factual allegations of the complaint as true. Forest

10   Park Pictures v. Universal Television Network, Inc., 683 F.3d 424, 429 (2d Cir.

11   2012). A pro se complaint must be “liberally construe[d] . . . to raise the strongest

12   arguments it suggests.” Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007).

13      We conclude that the District Court appropriately dismissed those claims

14   against Quinn that were based on alleged violations of 18 U.S.C. §§ 241, 242, and

15   1341, as well as RICO and 42 U.S.C. § 1983. Neither 18 U.S.C. § 242 nor 18 U.S.C.

16   § 1341 provides a private right of action. See Robinson v. Overseas Military Sales

17   Corp., 21 F.3d 502, 511 (2d Cir. 1994); Official Publ’ns, Inc. v. Kable News Co., 884


                                                 9
 1   F.2d 664, 667 (2d Cir. 1989). Similarly, nothing in the language of § 241 suggests

 2   that Congress intended to create a private right of action under that provision.

 3   See Cent. Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A., 511 U.S.

 4   164, 190 (1994). And as to Quinn’s alleged violation of RICO, we agree with the

 5   District Court that the Vidureks did not plausibly allege that the individuals

 6   shared a “common purpose” and “work[ed] together” to achieve this purpose.2

 7   First Capital Asset Mgmt., Inc. v. Satinwood, Inc., 385 F.3d 159, 174 (2d Cir. 2004)

 8   (“[F]or an association of individuals to constitute an enterprise, the individuals

 9   must share a common purpose to engage in a particular fraudulent course of

10   conduct and work together to achieve such purposes.” (quotation marks

11   omitted)). We therefore also affirm the District Court’s dismissal of both the

12   substantive RICO and RICO conspiracy claims against Quinn. See id. at 182.

13   Nor do we discern any error in the District Court’s dismissal of the § 1983 claim

14   against Quinn. Such a claim requires that the “plaintiff . . . allege that he was



     2 RICO makes it unlawful “for any person employed by or associated with any
     enterprise . . . to conduct or participate, directly or indirectly, in the conduct of
     such enterprise’s affairs through a pattern of racketeering activity,” and also
     makes it unlawful “for any person to conspire to violate” this provision. 18
     U.S.C. § 1962(c), (d).
                                                10
 1   injured by either a state actor or a private party acting under color of state law.”

 2   Ciambriello v. Cty. of Nassau, 292 F.3d 307, 323 (2d Cir. 2002). As the District

 3   Court held, the complaint does not plausibly allege that Quinn satisfied this

 4   requirement.

 5      5. Filing Injunction

 6      We review the District Court’s decision to impose a filing injunction for abuse

 7   of discretion. Eliahu v. Jewish Agency for Israel, 919 F.3d 709, 713 (2d Cir. 2019).

 8   In deciding whether to impose such an injunction, district courts must consider:

 9   “(1) the litigant’s history of litigation and in particular whether it entailed

10   vexatious, harassing or duplicative lawsuits; (2) the litigant’s motive in pursuing

11   the litigation, e.g., does the litigant have an objective good faith expectation of

12   prevailing?; (3) whether the litigant is represented by counsel; (4) whether the

13   litigant has caused needless expense to other parties or has posed an unnecessary

14   burden on the courts and their personnel; and (5) whether other sanctions would

15   be adequate to protect the courts and other parties.” Id. at 714 (quotation marks

16   omitted). The District Court considered these factors here. While the District

17   Court recognized the Vidureks’ pro se status, it determined that their extensive


                                                11
 1   litigation history meant that a filing injunction was the appropriate means of

 2   protecting the court and other parties from further harassment and expense. The

 3   District Court did not abuse its discretion in reaching this conclusion. See id. at

 4   713–16.3

 5       We have considered all of the Vidureks’ remaining arguments and conclude

 6   that they are without merit. For the foregoing reasons, the order of the District

 7   Court is AFFIRMED.

 8                                         FOR THE COURT:
 9                                         Catherine O’Hagan Wolfe, Clerk of Court
10




     3The Vidureks also argue that the District Court issued the injunction without a
     hearing, in violation of their due process rights. But they were on notice of the
     possibility of a filing injunction through Quinn’s motion, and were afforded an
     opportunity to respond to that motion.
                                              12
