United States District Court, D. Maryland, Southern Division
J. HAZEL, UNITED STATES DISTRICT JUDGE
5050 Tuxedo. LLC. brings this case against Defendant Stephen
W. Neal. seeking to enforce a statutory right to redeem real
property seized by the Internal Revenue Service
("IRS") and subsequently sold to Defendant at a
public tax sale. ECF No. 1. Pending before the Court are the
following motions: Defendant's Motion to Dismiss, or in
the Alternative, for Summary Judgment. ECF No. 6;
Defendant's Motion to Strike Plaintiffs Response in
Opposition to Defendant's Motion to Dismiss, or in the
Alternative, for Summary Judgment. ECF No. 8: and
Defendant's Motion to Strike Tyrone Pate's Affidavit,
ECF No. 10. These issues have been lull briefed and a
hearing is unnecessary. Loc. R. 105.6 (D. Wd, 2016). For the
reasons staled below, the Court will convert Defendant's
Motion to Dismiss into a Motion for Summary Judgment and
grant it in full. Furthermore, the Court will grant
Defendant's Motion to Strike Plaintiffs Response in
Opposition and will deny as moot Defendant's Motion to
Strike Tyrone Pate's Affidavit.
seeks ownership of real property, presently in the
Defendant's possession. located at 5050 Tuxedo Road.
Hyattsville. Maryland 20781 ("the Property"). ECF
No. 1 ¶ 51. The Property was previously owned by Wamo
Welding. Inc. ("Wamo"). Id. 11. Because Wamo
failed to pay state and federal taxes, the Property was
subject to several tax liens, Id. ¶ 12.
Pursuant to its authority under 26 U.S.C. § 6331(a)-(b).
the IRS provided notice of its intent to seize and sell the
Property to collect sufficient funds to re-coup the unpaid
federal taxes. Id. *' 13. The IRS held a sale of
the Property on October 21. 2015. ECF No. 6-4 at 2; ECF No.
6-5 at 2? Defendant was the successful bidder and
was issued a "Certificate of Sale of Seized
Property" from the IRS. ECF No. 1 ¶ 15.
to the tax sale, on October 2. 2015. Wamo and Winston
Marshall executed a "Commercial Contract of
Sale" with Plaintiff, to provide Plaintiff with an
assignment and interest in the Property sufficient to redeem
the Property pursuant to federal law. Id.
¶¶ 9-10. On October 24. 2015, a few days after
the public auction. Plaintiff entered into an agreement to
lease the Property to Mr. Marshall. Id. ¶ 16.
to the Complaint, the IRS identified April 18. 2016 as the
final date to redeem the Property, but "the
parties" agreed to extend the time for redemption beyond
this deadline to allow Plaintiff to "close the
transaction." Id. ¶¶ 18-19.
Specifically. Plaintiff alleges that on April 18. 2016. David
Carris. Esq. presumably on behalf of the
Plaintiff, emailed Defendant. requesting instructions for
where to wire money in order to redeem the Property.
Id. ¶ 20. Defendant forwarded the email to his
employee, Sharon Neal. who provided the hank and wiring
information to Plaintiff at 5:27 p.m. that same day.
Id. ¶ 22. On the following day. April 19. 2016,
Plaintiff paid Defendant $244, 145.74. which the IRS had
determined was the amount needed to redeem the property,
Id. ¶ 23. However. Defendant rejected
Plaintiffs attempt to redeem the property and returned the
transferred funds stating that Plaintiffs attempted
redemption occurred after the 180-day statutory redemption
period had expired. Id. ¶ 25.
initiated this case on June 3. 2016. claiming that
Defendant's refusal to accept its redemption breached
their agreement to extend the statutory redemption period,
and thus. violated its right to redeem the property pursuant
to 26 U.S.C. § 6337. Id. % 39. In addition to
requesting damages for their breach of contract claim.
Plaintiff alternatively argues that it has "no adequate
remedy at law." and requests that the Court specifically
enforce the contract and order Defendant to transfer title
and possession of the Property to Plaintiff. Id.
¶ 40. Plaintiff also brings a state law claim for quiet
title, alleging that its claim is superior to that of
Defendant and requesting that the Court declare Plaintiff the
"absolute owner* of the Property. Id.
29. 2016. Defendant filed a Motion to Dismiss, or in the
Alternative, for Summary Judgment. ECF No. 6-1 at 19-28.
Plaintiff responded on August 1. 2016. ECF No. 7. and
Defendant promptly filed a Motion to Strike Plaintiffs
Response as untimely. ECF No. 8. On August 1 8. 2016.
Defendant filed a Motion to Strike the affidavit of Tyrone
Pate, which had been submitted by Plaintiff with its
Response. ECF No. 10. That same day. Defendant also submitted
a Reply in Support of its Motion to Dismiss, or in the
Alternative, for Summary Judgment. ECF No. 11.
STANDARD OF REVIEW
survive a motion to dismiss invoking 12(b)(6). "a
complaint must contain sufficient factual matter, accepted as
true, to "state a claim to relief that is plausible on
its face."" Ashcroft v. Iqbal, 556 U.S.
662. 678 (2009) (citing Bell Atlantic Corp. v.
Twombly, 550 U.S. 544. 570 (2007)). "A claim has
facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged."
Iqbal, 556 U.S. at 678. "Threadbare recitals of
the elements of a cause of action, supported by mere
conclusory statements, do not suffice." Id.
(citing Twombly, 550 U.S. at 555) ("a
plaintiffs obligation to provide the 'grounds' of his
'entitle[ment] to relief requires more than labels and
conclusions, and a formulaic recitation of a cause of
action's elements will not do.").
Civ. P. 12(b)(6)"s purpose "is to test the
sufficiency of a complaint and not to resolve contests
surrounding the facts, the merits of a claim, or the
applicability of defenses." Presley v. City of
Charlottesville, 464 F.3d 480. 483 (4th Cir. 2006)
(citation and internal quotation marks omitted). When
deciding a motion to dismiss under Rule 12(b)(6). a court
"must accept as true all of the factual allegations
contained in the complaint." and must "draw all
reasonable inferences [from those facts] in favor of the
plaintiff." E. 1. du Pont de Nemours & Co. v.
Kolon Indus., Inc., 637 F.3d 435. 440 (4th Cir. 2011)
(citations and internal quotation marks omitted). The Court
need not, however, accept unsupported legal allegations,
see Reverie v. Charles County Comrn 'rs. 882
F.2d 870. 873 (4th Cir. 1989). legal conclusions couched as
factual allegations. Papasan v. Attain, 478 U.S.
265. 286 (1986). or conclusory factual allegations devoid of
any reference to actual events. United Black Firefighters
of Norfolk v. Hirst. 604 F.2d 844. 847 (4th Cir. 1979).
motion is styled as a Motion to Dismiss, or in the
Alternative, for Summary Judgment under Fed.R.Civ.P. 56. If
the Court considers materials outside the pleadings, as the
Court does here, the Court must treat a motion to dismiss as
one for summary judgment. Fed.R.Civ.P. 12(d). When the Court
treats a motion to dismiss as a motion for summary judgment.
"[a]ll parties must be given a reasonable opportunity to
present all the material that is pertinent to the
motion." Id. When the moving party styles its
motion as a "Motion to Dismiss, or in the Alternative,
for Summary Judgment." as is the case here, and attaches
additional materials to its motion, the nonmoving party is,
of course, aware that materials outside the pleadings are
before the Court, and the Court can treat the motion as one
for summary judgment. See Laughlin v. Metropolitan Wash.
Airports Auth., 149 F.3d 253, 260-61 (4th Cir. 1998).
Further, the Court is not prohibited from granting a motion
for summary judgment before the commencement of discovery.
See Fed. R. Civ. P. 56(a) (stating that the court
"shall grant summary judgment if the movant shows that
there is no genuine dispute as to any material fact"
without distinguishing pre-or post-discovery).
summary judgment should not be granted if the nonmoving party
has not had the opportunity to discover information that is
essential to his opposition to the motion. Anderson v.
Liberty Lobby. Inc.. 477 U.S. 242. 250 n.5. (1987). If
the nonmoving party feels that the motion is premature, that
party can invoke Fed. R. Civ. Pro. 56(d). See Celotex
Corp. v. Catrett. 477 U.S. 317. 326 (1986). Under Rule
56(d). the Court may deny a motion for summary judgment if
the non-movant shows through an affidavit that, for specified
reasons, he or she cannot properly present facts, currently
unavailable to him or her. that are essential to justify an
opposition. Fed. R. Civ. Pro. 56(d). ""[T]he
failure to file an affidavit... is itself sufficient grounds
to reject a claim that the opportunity for discovery was
inadequate."" Harrods Lid. v. Sixty Internet
Domain Names, 302 F.3d 214, 244 (4th Cir. 2002)
(citations omitted). But a failure to file an affidavit may
be excused "if the nonmoving party has adequately
informed the district court that the motion is premature and
that more discovery is necessary" and the
""nonmoving party's objections before the
district court served as the functional equivalent of an
affidavit." Id. at 244-45 (citations and
internal quotation marks omitted).
Plaintiff has not filed an affidavit under Rule 56(d) or made
an equivalent showing of the need for more discovery. Thus,
the Court will convert Defendant's Motion to Dismiss into
a Motion for Summary Judgment.
judgment is appropriate if "materials in the record,
including depositions. documents, electronically stored
information, affidavits or declarations, stipulations ....
admissions, interrogatory answers, or other materials."
Fed.R.Civ.P. 56(c). show that there is "no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law." Fed.R.Civ.P. 56(a);
see also Celolex Corp.. 477 U.S. at 322. The party
moving for summary judgment bears the burden of demonstrating
that no genuine dispute exists as to material facts.
Pulliam Inv. Co. v. Cameo Props.,810 F.2d 1282.
1286 (4th Cir. 1987). If the moving party demonstrates that
there is no evidence to support the nonmoving party's
case, the burden shifts to the nonmoving party to identify
specific facts showing that there is a genuine issue for
trial. See Celolex, 477 U.S. at 322-23. A material
fact is one that "might affect the outcome of the suit
under the governing law." Spriggs v. Diamond Auto
Glass.242 F.3d 179. 183 (4th Cir. 2001) (quoting
Anderson v. Liberty Lobby. Inc.,477 U.S. 242. 248
(1986)). A dispute of material fact is only
"genuine" If sufficient evidence favoring the
nonmoving party exists for the trier ...