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Keszthelyi v. Tune

April 23, 2008

RUDOLPH P. KESZTHELYI, PLAINTIFF,
v.
TUNE, ENTREKIN & WHITE, P.C., AND PETER J. STRIANSE, DEFENDANTS.



The opinion of the court was delivered by: Chief Judge Curtis L. Collier

MEMORANDUM

Defendants Tune, Entrekin & White, P.C., and Peter J. Strianse ("Defendants") move the Court to dismiss the complaint of Plaintiff Rudolph P. Keszthelyi ("Plaintiff") for failure to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure ("Fed. R. Civ. P.") 12(b)(6) (Court File Nos. 12, 13). Plaintiff filed two responses (Court File Nos. 16, 17), and Defendants filed no reply.

In accordance with the following, the Court will GRANT Defendants' motion to dismiss (Court File No. 12), and will DISMISS Plaintiff's claims.

I. FACTS

On July 5, 2000, Plaintiff entered a plea agreement, pleading guilty to two counts of an indictment: knowingly engaging in a monetary transaction in criminally derived property, 18 U.S.C. § 1957; and, distributing cocaine hydrochloride, 21 U.S.C. § 841 (Court File No. 12, Exhibit C; United States v. Keszthelyi, No. 1:99-cr-100 (E.D. Tenn. filed Oct. 8, 1999) (Edgar, J)). In the plea agreement, Plaintiff agreed to forfeit funds he had in Hartford Mutual Funds and American General Annuity ("assets") in their entirety (Court File No. 12, Exhibit C). Although Plaintiff knew that most of the funds were actually money his father had given Plaintiff to invest on his father's behalf, Plaintiff agreed to forfeit all the money in the hope the Government would seek a lesser sentence as a result (Court File No. 16, Exhibit B, p. 2). Plaintiff believed, with a shorter prison sentence, he would have time to repay his father's money (id.).

On that same day, Plaintiff agreed to forfeit assets as proceeds of and property used to facilitate drug distribution activities in an Agreed Preliminary Order of Forfeiture (Court File No. 13, pp. 2-3). Also, during his plea colloquy on that same day, Plaintiff verbally agreed not to contest civil forfeiture of the assets (Court File No. 12, Exhibit B, p. 29). During the colloquy, Plaintiff asserted not all the assets were the product of illegal drug activity (id., p. 28). However, upon clarification, Plaintiff confirmed that a portion of the assets were drug-related, and Plaintiff expressly consented to not contest forfeiture of all the money in the accounts (id., pp. 28-29).

Plaintiff was sentenced on November 6, 2000. Keszthelyi, No. 1:99-cr-100, Court File No. 97.

On January 5, 2001, Plaintiff's wife, Kimberly Hawkins-Keszthelyi, to whom Plaintiff had given power-of-attorney (Court File No. 12, Exhibit E, p. 4), signed a Consent Decree for Forfeiture ("Consent Decree") of the assets. The Consent Decree contains the statement that Plaintiff "agree[s] that [the assets] constitute proceeds from the distribution of cocaine hydrocholoride . . ." (id., p. 1). The Consent Decree also states Plaintiff was the "true owner[]" of the assets and agreed to forfeit them (id., p. 2). This Consent Decree provided time for others with claims to the assets to be heard (id.). The Final Order of Forfeiture was entered on September 14, 2001 (Court File No. 12, Exhibit F). Shortly after the Final Order of Forfeiture was issued, Defendant Strianse ceased representing Plaintiff (Court File No. 13, p. 2).

On August 5, 2003,*fn1 Plaintiff filed a motion with the Court to set aside the civil forfeiture, alleging the money in the accounts belonged to his father (Keszthelyi, No. 1:99-cr-100, Court File Nos. 122-123). Judge R. Allan Edgar denied the motion on August 8, 2003 (id.).

Plaintiff asserts he did not know of the Consent Decree until December 21, 2005, when it was used by the Government to rebut his father's claim to have the forfeited money returned (Court File Nos. 1, p. 3; 17, p. 2). Plaintiff's father has a pending case in this court in which he is seeking to have the forfeited money restored. See Keszthelyi v. United States, No. 1:05-cv-303 (E.D. Tenn., filed Oct. 27, 2005) (Edgar, J.).

Plaintiff filed a complaint in the United States District Court for the Middle District of Tennessee at Nashville against Defendants*fn2 on April 13, 2006 (Court File No. 13, Exhibit A). The case was transferred to this court on May 2, 2006 (Court File No. 1).

II. STANDARD OF REVIEW

In reviewing a Fed. R. Civ. P. 12(b)(6) motion to dismiss, the Court construes the complaint in the light most favorable to the plaintiff, Bloch v. Ribar, 156 F.3d 673, 677 (6th Cir. 1998), accepts the complaint's factual allegations as true, Broyde v. Gotham Tower, Inc., 13 F.3d 994, 996 (6th Cir. 1994), and determines whether the plaintiff has pleaded "enough facts to state a claim to relief that is plausible on its face," Bell Atl. Corp. v. Twombly, __ U.S. __, 127 S.Ct. 1955, 1974 (May 21, 2007) (rejecting traditional Fed. R. Civ. P. 12(b)(6) standard set forth in Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). The Court may not grant a 12(b)(6) motion based upon its disbelief of a complaint's factual allegations, Miller v. Currie, 50 F.3d 373, 377 (6th Cir. 1995), nor should the Court weigh the evidence or evaluate the credibility of witnesses, id. (citing Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)). The question is not whether the plaintiff will ultimately prevail but whether "the claimant is entitled to offer evidence to support the claims." Kroll v. United States, 58 F.3d 1087 (6th Cir. 1995); Ecclesiastical Order of the Ism. of Am., Inc. v. Internal Revenue Serv., 725 F.2d 398, 403 (6th Cir. 1984). At ...


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