1

IN THE UNITED STATES DISTRICT COURT 

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

DAVID F. SPENCER, : No. 4:CV 06-0427

:

Plaintiff : Judge Jones

:

v. :

:

MARK SPEESE, JOYCE ANDERSON, :

SUZANNE FERGUSON, :

RENT-A-CENTER :

Defendants :

MEMORANDUM AND ORDER

October 24, 2006

THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:

Pending before the Court is a Motion to Dismiss (“the Motion”) (doc. 12) of

Defendants Mark Speese, Joyce Anderson, Suzanne Ferguson and Rent-A-Center

(collectively “Defendants”) filed with the Court on September 12, 2006.

For the following reasons, the Motion will be granted and the action

dismissed.

FACTUAL BACKGROUND/PROCEDURAL HISTORY:

On or about December 14, 2004, the New York Department of Taxation and

Finance (“NYSDTF”) issued a Tax Warrant against Plaintiff. Thereafter, on or

about February 19, 2004, the NYSDTF, through its Warrant Officer, served an

Case 4:06-cv-00427-JEJ Document 16 Filed 10/24/06 Page 1 of 7
1 Spencer v. Eristoff, et.al, 4:CV-06-174.

2

Income Execution Order (“Order”) on Defendant Rent-A-Center, Plaintiff David

Spencer’s (“Plaintiff”) employer at the time. The Order required Defendant RentA-Center to withhold up to 10% of the Plaintiff’s gross salary, wages, overtime,

commissions, and other regular and irregular income in order to satisfy the Order. 

The Defendant Rent-A-Center commenced garnishment of Plaintiff’s wages.

On or about February 7, 2006, Plaintiff faxed a letter to Defendant Suzanne

Ferguson, Payroll Garnishment Representative for Defendant Rent-A-Center,

informing her of his lawsuit against Commissioner Andrew Eristoff of the NYSDTF

for various UCC violations in connection with the Order.1 Defendant Ferguson

then called the NYSDTF to confirm the Order was on record and to obtain a copy

of the original garnishment Order. Defendant Ferguson conveyed this information

to Plaintiff. Later that same day, Defendant Ferguson received a copy of the

original Order from NYSDTF, confirmed that it matched the Order that Rent-ACenter had on file for Plaintiff, and informed Plaintiff of the same. On February 27,

2006, Plaintiff filed the present action against Defendants, alleging that the

Defendants unlawfully garnished his wages pursuant to an illegal Order from the

NYSDTF.

The instant Motion and supporting brief was filed on September 12, 2006. 

Case 4:06-cv-00427-JEJ Document 16 Filed 10/24/06 Page 2 of 7
3

To date, the Plaintiff has not filed a brief in opposition to the Motion. Pursuant to

Local Rule 7.6, a party who fails to file a responsive brief within fifteen days after

service of the movant’s brief shall be deemed not to oppose the Motion, and

accordingly the Motion will be granted. However, for the sake of completeness

and in the interests of justice, we shall undertake a brief analysis of the merits of the

Motion. 

STANDARD OF REVIEW:

In considering a motion to dismiss pursuant to Fed. R. Civ. Pro. 12(b)(6), a

court must accept the veracity of a plaintiff's allegations. See Scheuer v. Rhodes,

416 U.S. 232, 236 (1974); see also White v. Napoleon, 897 F.2d 103, 106 (3d Cir.

1990). In Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996), our Court of Appeals for

the Third Circuit added that in considering a motion to dismiss based on a failure to

state a claim argument, a court should "not inquire whether the plaintiffs will

ultimately prevail, only whether they are entitled to offer evidence to support their

claims." Furthermore, "a complaint should not be dismissed for failure to state a

claim unless it appears beyond doubt that the plaintiff can prove no set of facts in

support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S.

41, 45-46 (1957); see also District Council 47 v. Bradley, 795 F.2d3 310 (3d Cir.

1986). 

Case 4:06-cv-00427-JEJ Document 16 Filed 10/24/06 Page 3 of 7
4

DISCUSSION:

A. UCC Claims

In the complaint, Plaintiff makes a blanket allegation that Defendants violated

Uniform Commercial Code provisions without reference to a specific provision or

provisions. Moreover, Plaintiff does not make sufficient factual averments to

support his purported claims, and accordingly he has failed to state a claim under

the UCC against the Defendants. 

B. “Conspiracy Against Rights” - 18 U.S.C. § 241 Claim

Section 241 makes it illegal to conspire to “injure, oppress, threaten, or

intimidate any person” from exercising his right or privilege of a constitutionally or

federally protected law. A noted by Defendants, Plaintiff’s claim under Section

241 necessarily fails because he cannot establish the existence of a conspiracy. 

The Defendants acted in accordance with a legal NYSDTF order. By definition, a

conspiracy is an agreement to work together to effectuate an illegal act. Inasmuch

as the Defendants participated in no illegal conduct with respect to the NYSDTF

order, Plaintiff cannot state a claim against them pursuant to 18 U.S.C. § 241.

C. “Deprivation of Rights Under Color of Law” - 18 U.S.C. § 242 

Claim

Section 242 prohibits individuals acting under ‘color of law’ to deprive a

Case 4:06-cv-00427-JEJ Document 16 Filed 10/24/06 Page 4 of 7
5

person of any “rights, privileges, or immunities secured or protected by the

Constitution or laws of the United States . . .” 18 U.S.C. § 242. Inasmuch as the

Defendants are private individuals working for a private employer, they have not

acted under ‘color of law,’ and accordingly the Plaintiff has failed to state a claim

pursuant to Section 242.

D. “Frauds & Swindles” - 18 U.S.C. § 1341 Claim

Section 1341 protects against schemes to defraud, the use of false pretenses

to obtain money or property, and other such illegal means of engaging in white

collar crimes through the use of mail services. Plaintiff has alleged no evidence to

support any claim that the Defendants engaged in any type of fraud or scheme

against him. Defendants effectuated the NYSDTF order against the Plaintiff, which

was a legitimate, legal order, and accordingly, Plaintiff has not stated a claim under

Section 1341.

E. “Fraud by Wire, Radio or Television” - 18 U.S.C. § 1343

Section 1343 prohibits schemes to defraud or obtain money or property

through the use of wire, radio or television. Pursuant to the NYSDTF order, the

Defendants mailed Plaintiff’s garnished wages through the United States Postal

Service, and accordingly this statute is wholly inapplicable.

F. “Definitions” - 18 U.S.C. § 1961

Case 4:06-cv-00427-JEJ Document 16 Filed 10/24/06 Page 5 of 7
6

In the complaint Plaintiff states that Defendants violated Section 1961. 

However, 1961 is merely a definitions section, and accordingly, no claim can be

stated thereunder.

G. “RICO” - 18 U.S.C. § 1961 et seq.

The civil RICO statute provides relief against any person who engages in a

“pattern of racketeering activity or through a collection of an unlawful debt . . . to

use or invest, directly or indirectly, any part of such income, or the proceeds of

such income.” Inasmuch as Defendants received no income that it withheld from

Plaintiff, but relinquished the money to the NYSDTF, this statute is inapplicable

and is not a claim upon which Plaintiff can seek relief.

H. “Offenses by Officers and Employees of the United States” - 26 

U.S.C. § 7214

Section 7214 only applies to United States officers and employees. 

Defendants are private individuals and a private corporation, and accordingly,

Plaintiff may not maintain a claim against them pursuant to Section 7214.

CONCLUSION:

We shall grant the Defendants’ Motions on the merits, for the reasons stated

herein, as well as for Plaintiff’s failure to file a responsive brief as required by L.R.

7.6., and dismiss the complaint against the Defendants.

Case 4:06-cv-00427-JEJ Document 16 Filed 10/24/06 Page 6 of 7
7

NOW, THEREFORE, IT IS HEREBY ORDERED THAT:

1. The Defendants’ Motion to Dismiss (doc. 12) is GRANTED.

2. The complaint is DISMISSED as against the Defendants.

3. The Clerk is directed to CLOSE the file on this case.

4. There is no basis for the issuance of a certificate of appealability in

this case.

s/ John E. Jones III

John E. Jones III

United States District Judge

Case 4:06-cv-00427-JEJ Document 16 Filed 10/24/06 Page 7 of 7