Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Petrunak v. Krofta

United States District Court, S.D. Indiana, Indianapolis Division

September 17, 2019

CHARLES PETRUNAK, Plaintiff,
v.
JILL ANN KROFTA, MANUEL A. VICARIO, KEVIN MCSHANE, Defendants.

          REPORT AND RECOMMENDATION

          MARK J. DINSMORE UNITED STATES MAGISTRATE JUDGE.

         This matter is before the Court on Defendants Jill Krofta and Manuel Vicario's motion to dismiss the Amended Complaint [Dkt. 34], Defendant Kevin McShane's motion to dismiss the Amended Complaint [Dkt. 36], and Plaintiff's motion to file a surreply in opposition to the motions to dismiss [Dkt. 41]. On September 5, 2019, District Judge Richard L. Young designated the undersigned Magistrate Judge to issue a report and recommendation regarding these motions pursuant to 28 U.S.C. § 636(b)(1)(B). [Dkt. 50.] For the reasons set forth below, the Magistrate Judge recommends that the motions to dismiss be GRANTED. The Magistrate Judge also recommends that Plaintiff's motion to file a surreply in opposition to the motions to dismiss [Dkt. 41] be GRANTED, and the Magistrate Judge has considered Plaintiff's surreply, found at [Dkt. 42], in reviewing the motions to dismiss.

         I. Procedural Background

         On March 5, 2019, Defendants Krofta and Vicario filed a motion to dismiss the original complaint in this case. [Dkt. 17.] Defendant McShane filed a motion to dismiss the following day. [Dkt. 19.] Plaintiff requested and was granted an extension of time to file a response April 26, 2019, [Dkt. 24], but instead he filed an amended complaint on April 8, 2019.[1] [Dkt. 32.]

         The Defendants filed motions to dismiss the amended complaint on April 19, 2019, and April 22, 2019. [Dkt. 34 & Dkt. 36]. Plaintiff's responses to these motions were due on May 13, 2019, and May 16, 2019, respectively;[2] Plaintiff filed a combined response on May 15, 2019. The Magistrate Judge has considered the response as to both motions to dismiss, despite the fact that it was untimely as to the earlier filed motion.

         II. Factual Background

         Plaintiff alleges in his Amended Complaint that, in 2001, Defendants Krofta and Vicario, acting in their capacity as inspectors with the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”), recommended revocation of Plaintiff's user of high explosives permit and manufacturer of theatrical flash powder license following an inspection of Plaintiff's fireworks business, Abyss Special FX. Plaintiff alleges that the inspection took place after he contacted the ATF and spoke with Krofta regarding the fact that he had procured fireworks for a show that was cancelled at the last minute, leaving Plaintiff with “a truckload of fireworks which he could neither return nor lawfully dispose of.” [Dkt. 32 at 2.] Krofta's inspection report, however, states that Krofta found the illegally stored fireworks “by happenstance.” Both Krofta and Vicario testified at a June 2003 hearing regarding the recommendation that Petrunak's licenses be revoked. Plaintiff alleges that Krofta gave false testimony which was relied upon by the ALJ in her decision to revoke Plaintiff's license. This caused Plaintiff to lose his business, which resulted in financial loss to Plaintiff.

         Plaintiff alleges that in 2009, he “determined, possibly correctly, that he was required to deduct his loss-which he determined to be approximately $500, 000-from his taxes, and to attribute that loss to its first proximate cause, the perjury of Inspectors Krofta and Vicario.” [Dkt. 32 at 6.] Plaintiff then sent Krofta and Vicario each an IRS Form 1099 “which apportioned the $500, 000 equally between [them], and by which he believed he was assigning his personal and business losses in accordance with the law.” Id. He also filed the two IRS 1099 forms and an IRS 1096 form with the IRS and claimed the $500, 000 loss on his corporate and personal tax returns.

         In May 2014, Plaintiff was indicted by a federal grand jury on three counts of making and subscribing false and fraudulent IRS forms. Defendant McShane represented him in the criminal case, which went to trial in December 2015. Plaintiff alleges that McShane's representation was deficient in numerous respects, including his refusal to assert that Krofta committed perjury and to impeach her testimony because “doing so could ‘ruin her career.'” Id. at 8. On December 15, 2015, the jury returned a verdict of guilty on all three counts; Plaintiff was sentenced to 24 months in prison followed by one year of supervised release and was ordered to pay restitution in the amount of $2, 512.00. Plaintiff appealed; his conviction was upheld by the Seventh Circuit Court of Appeals on May 4, 2017. Plaintiff was released from prison on July 31, 2018.

         III. Discussion

         Plaintiff filed this suit on November 13, 2018. In his Amended Complaint, he asserts the following causes of action:

• Count One: Krofta deprived Plaintiff of his right to administrative due process of law as guaranteed by the Fifth Amendment by perjuring herself at the ATF hearing;
• Count Two: Vicario deprived Plaintiff of his right to administrative due process of law as guaranteed by the Fifth Amendment by perjuring himself at the ATF hearing;
• Count Three: Krofta and Vicario conspired to deprive Plaintiff of his right to administrative due process of law as guaranteed by the Fifth Amendment by ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.