United States District Court, W.D. Washington, Seattle
ORDER DENYING MOTION TO DISMISS
J. Pechman United States District Judge
Court, having received and reviewed:
Defendant's Motion to Dismiss for Failure to State a
Claim and/or Lack of Personal Jurisdiction and/or to Strike
Amended Complaint (Dkt. No. 19);
Plaintiff's Response in Opposition to Defendant's
Motion to Dismiss Amended Complaint (Dkt. No. 21); all
attached declarations and exhibits; and relevant portions of
the records, rules as follows:
ORDERED that the motion to dismiss is DENIED.
FURTHER ORDERED that the motion to strike portions of the
amended complaint is DENIED.
United States brings this action to collect civil penalties
assessed against Defendant Jeffrey Pomerantz for failing to
timely report his financial interest in foreign bank accounts
during the years 2007 through 2009. Defendant allegedly owes
$860, 300.35 in penalties.
Pomerantz brings a motion (1) to dismiss the amended
complaint for lack of personal jurisdiction under Federal
Rule of Civil Procedure 12(b)(2); or (2) failure to state a
claim under Rule 12(b)(6), and; (3) to strike portions of the
amended complaint under Rule 12(f). Mr. Pomerantz also argues
the amended complaint is barred by the doctrines of res
judicata and collateral estoppel.
13, 2016, the United States filed a complaint against Mr.
Pomerantz, seeking to collect civil penalties for
Defendant's alleged failure to timely file a Treasury
Form TD F 90-22.1 (“FBAR Form”) reporting his
interest in foreign bank accounts on his annual United States
tax filings during the years 2007 through 2009. Mr. Pomerantz
is a United States citizen currently residing in British
Columbia, Canada. Dkt. # 17 (“Amend. Compl.”),
¶ 2-3; Dkt. # 19 at 2.
foreign bank accounts at issue in this action include both
Mr. Pomerantz's personal accounts-two checking accounts
opened with the Canada Imperial Bank of Commerce (“CIBC
Accounts”)-and accounts opened by Chafford Limited
(five accounts with Sal Oppenheim JR & CIE AG in
Switzerland; “Chafford Limited Accounts”).
Id. ¶¶ 5, 8-10. The Government alleges
that Chafford Limited is a corporation formed in the Turks
and Caicos Islands that conducted no active business, but was
simply a shell company used to hold and manage Mr.
Pomerantz's personal investments. Amend. Compl. ¶ 7.
8, 2017, the Government's first complaint was dismissed
pursuant to Federal Rule of Civil Procedure 12(b)(6) for
failing to state a claim upon which relief can be granted.
Dkt. # 16. The Court, the Honorable James L. Robart
presiding, held that the Government did not sufficiently
allege that Mr. Pomerantz acted “willfully” in
his failure to file FBAR Forms regarding his personal, CIBC,
checking accounts. In particular, there were no allegations
in the original complaint that Mr. Pomerantz had actual or