Opinion
Case No. EDCV 02-00495-VAP (SGLx)
July 8, 2002
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS PETITION FOR LACK OF SUBJECT MATTER JURISDICTION
The Court has received and considered all papers filed in support of Defendant's Motion to Dismiss for Lack of Subject Matter jurisdiction. NO opposition has been filed. The Motion is appropriate for resolution without oral argument. See Fed.R.Civ.P. 78; Local Rule 7-15. For the reasons set forth below, the Motion is GRANTED without leave to amend.
I. BACKGROUND
Petitioner Cecil B. Swim, Jr. ("Plaintiff") commenced this action by filing a "Verified Petition for Writ of Mandamus" in the California Superior Court, County of San Bernardino, on May 6, 2002, alleging the District Director, California Internal Revenue Service ("IRS"), acted unlawfully in the collection of taxes for the year 1998, and has failed to release various levies and liens involving the taxable year 1998. [Respondent's Motion to Dismiss ("Respt's Mot.") at 3.] Respondent IRS ("Respondent") removed this action to this Court on May 22, 2002. Respondent now brings the current Motion to Dismiss for Lack of Subject Matter Jurisdiction and Lack of Personal Jurisdiction.
The Court need not consider whether it has personal jurisdiction as subject matter jurisdiction is lacking.
II. LEGAL STANDARD
A. 12(b)(1)Pursuant to Federal Rule of Civil Procedure 12(b)(1), a district court must dismiss an action if the court lacks jurisdiction over the subject matter of the suit. Fed.R.Civ.P. 12(b)(1). The party seeking to invoke federal jurisdiction bears the burden of establishing that jurisdiction exists. Scott v. Breeland, 792 F.2d 925, 927 (9th Cir. 1986). A complaint will be dismissed under Rule 12(b)(1) for lack of subject matter jurisdiction if (1) the cause does not "arise under" any federal law or the United States Constitution, (2) there is no cause or controversy within the meaning of that constitutional term, or (3) the cause is not one described by any jurisdictional statute. Baker v. Carr, 369 U.S. 186, 198 (1962). A 12(b)(1) Motion is appropriate when a Plaintiff's claim is barred by sovereign immunity. See Porter ex rel. Porter v. Board of Trustees of Manhatten Beach Unified School Dist., 123 F. Supp.2d 1187, 1194 (C.D. Cal. 2000); Wright, Miller Cooper, Federal Practice Procedure: Civil § 1350 (3d ed. 1998).
B. Timely Opposition Required
This Motion is unopposed. Under Local Rule 7-9, a party must file opposition papers no later than 14 days before the date designated for the hearing of the motion. Failure to do so, under Local Rule 7-12, may result in a finding that the party has consented to granting the motion. Despite Plaintiff's failure to file Opposition, the Court considers the merits of Defendant's Motion to Dismiss.
III. DISCUSSION
Although Petitioner attempts to sue the District Director of the IRS in his individual capacity, this is a suit against the United States. Gilbert v. DaGrossa, 756 F.2d 1455, 1458 (9th Cir. 1985) (holding suit against IRS employee acting in official capacity suit against government). Consequently, "absent express statutory consent to sue, dismissal is required." Id.
"The general rule is that a suit is against the sovereign if `the judgment sought would expend itself on the public treasury or domain, or interfere with the public administration,' or if the effect of the judgment would be `to restrain the Government from acting, or to compel it to act.'" Dugan v. Rank, 372 U.S. 609, 620 (1963) (quoting Land v. Dollar, 330 U.S. 731, 738 (1947), and Larson v. Domestic Foreign Corp., 337 U.S. 682, 704 (1949)). The United States, as a sovereign, may not be sued without its consent; "[w]aivers of [its] sovereign immunity, to be effective, must be `unequivocally expressed.'" U.S. v. Nordic Village Inc., 503 U.S. 30, 33-34 (1992) (quoting Irwin v. Department of Veterans Affairs, 498 U.S. 89, 95 (1990) (quoting U.S. v. Mitchell, 445 U.S. 535, 538 (1980), and United States v. King, 395 U.S. 1, 4 (1969)); Cominotto v. U.S., 802 F.2d 1127, 1129 (9th Cir. 1986) ("[W]aiver of immunity must be demonstrated by the party suing the United States.").
This action is against the United States even though Petitioner names an individual as Respondent. Gilbert, 756 F.2d 1458 ("[S]overeign immunity cannot be avoided by naming officers and employees of the United States as defendants.") (citing Larson, 337 U.S. at 688). Petitioner sues for acts done by federal employees in their official capacities; namely, the assessment and collection of Petitioner's unpaid federal income tax liabilities. [Respt's Mot. at 7.] As such, absent a waiver by Respondent, the Petition must be dismissed.
Petitioner has not demonstrated that the United States waived its sovereign immunity. Petitioner did not file opposition to Respondent's Motion, and it does not appear from the face of his Petition that he alleges a waiver. Accordingly, the Petition is dismissed.
This failure alone may be deemed his assent to the dismissal of his action. See Local Rule 7-12.
IV. DISMISSAL WITHOUT LEAVE TO AMEND
"Dismissal without leave to amend is improper unless it is clear that the complaint could not be saved by any amendment." Polich v. Burlington Northern, Inc., 942 F.2d 1467, 1472 (9th Cir. 1991). Plaintiff did not file opposition to Defendant's Motion, and thus has failed to set forth any facts which he could add to save his Counterclaim. See In re Silicon Graphics Inc. Sec. Litig., 183 F.3d 970, 991 (9th Cir. 1999) (citing In re VeriFone Sec. Litig., 11 F.3d 865, 872 (9th Cir. 1993) (dismissing without leave to amend when plaintiffs failed to allege additional facts which might cure defects in complaint)).
Plaintiff's pro se status does not affect the Court's capacity to dismiss without leave to amend. "Pro se litigants in the ordinary civil case should not be treated more favorably than parties with attorneys of record." Jacobsen v. Filler, 790 F.2d 1362, 1364 (9th Cir. 1986).