Opinion
Case No. 1:02cv156 MMP
January 29, 2003
ORDER
This matter is before the Court Respondent's Motion to Dismiss (doc. 3). Petitioner did not file a response to the Motion to Dismiss within the time period specified by Local Rule 7.1(C)(1). However, Petitioner has filed a motion entitled "Notice of Error in Alleged Removal and Challenge of Jurisdiction" (doc. 6), which the Clerk of the Court has construed as a Motion to Remand this case to state court. For the reasons given below, Respondent's Motion to Dismiss is GRANTED, and Petitioner's Motion to Remand is DENIED.
Petitioner has also filed a motion for "Joinder of Indispensable Parties and Request for Certification of Scope of Office" an "Amended Complaint" (doc. 13). For the reasons set forth herein these motion will also be DENIED. federal court, noting the Internal Revenue Service "Executive in Charge" was named as the Respondent, and therefore the action should be treated as one against the United States. See Dugan v. Rank, 372 U.S. 609, 620 (1963); Rosado v. Curtis, 885 F. Supp. 1538, 1542 (M.D.Fla. 1995) aff'd 84 F.3d 437 (11th Cir. 1996) (holding that a suit against an IRS employee in their official capacity is a suit against the United States). Such an action is removable under 28 U.S.C. § 1442(a)(1). Respondent then moved to dismiss, arguing that 713.21(4) applied only to construction liens, and that the United States has not waived its sovereign immunity for a suit such as this one.
Petitioner filed suit in state court seeking to have the state court discharge a single federal tax lien under the auspices of Fla. Stat. 713.21(4). Respondent subsequently removed the case to
The Court agrees with the government that the Complaint clearly does not state a claim and therefore declines to answer the sovereign immunity question. The Florida statutory provision that plaintiff relies on, Fla. Stat. 713.21, states as follows:
713.21 Discharge of Lien A lien properly perfected under this chapter may be discharged by any of the following methods: * * * * (4) By an order of the circuit court of the county where the property is located, as provided in this subsection. Upon filing a complaint therefore by any interested party the clerk shall issue a summons to the lienor to show cause within 20 days why his lien should not be enforced by action or vacated and canceled of record. Upon failure of the lienor to show cause why his lien should not be enforced or his failure to commence such action before the return date of the summons the court shall forthwith order cancellation of the lien.
The first sentence of 713.21 points out that it applies only to a "lien properly perfected under this chapter." Chapter 713 is entitled "Construction Liens" and section 713.02 sets out the "Types of Lienors and Exemptions" covered by the chapter. The individuals who are entitled to perfect a lien under Chapter 713 are those who "render professional services," such as an "architect, landscape architect, interior designer, engineer, or surveyor and mapper." Fla. Stat. 713.03; a person who "performs services or furnishes material to real property for the purpose of making it suitable as the site for the construction of an improvement or improvements." Fla. Stat. 713.04; or "a materialman or laborer . . . or a contractor who complies with the provisions of this part." Fla. Stat. 713.05-06. Nowhere in Chapter 713 is a tax lien mentioned as one "perfected under this chapter."
In short, with regard to tax liens, Fla. Stat. 713.21 does not provide the method of relief the plaintiff seeks. Therefore, the Court agrees with the United States that the plaintiff's complaint fails to state a claim upon which relief can be granted.
Furthermore, under the doctrine of sovereign immunity, the United States is immune for suit unless it expressly and unequivocally waives its immunity and consents to be sued. United States v. Nordic Village, Inc., 503 U.S. 30 (1992). Absent such a waiver, the action should be dismissed for lack of jurisdiction. United States v. Mitchell, 445 U.S. 535, 538-39 (1980). It is well established that the United States has not waived it sovereign immunity over lawsuits regarding the assessment and collection of taxes by the IRS. See 28 U.S.C. § 2680(c) (the Federal Tort Claims Act's waiver of sovereign immunity does not apply to "[a]ny claim arising in respect to the assessment of collection of any tax"); see also Rosado v. Curtis, 885 F. Supp. 1538, 1542 (M.D.Fla. 1995), aff'd, 84 F.3d 437 (11th Cir. 1997), cert. den., 519 U.S. 1058 (1997). On this second basis, Petitioner's claims will be dismissed.
In a last effort of defeat jurisdiction, Petitioner has filed a motion for "Joinder of Indispensable Parties and Request for Certification of Scope of Office" an "Amended Complaint" (doc. 13). In the motion, Petitioner argues that the Government has failed to properly substitute the United States as the Defendant in this action, and therefore jurisdiction is defective, and sovereign immunity inapplicable. This argument is flawed. First, Petitioner sues the "Executive in Charge" of the IRS, which is — without ambiguity — a suit against an IRS employee in his official capacity. Therefore, the instant action is by operation of law a suit against the United States. Rosado, 885 F. Supp. at 542 (M.D.Fla. 1995) aff'd 84 F.3d 437 (11th Cir. 1996). No substitution of parties in necessary in this instance. Recognizing this defect, Petitioner seeks to add additional Defendants in their individual capacities through joinder or amendment of the Complaint (doc. 13). Notwithstanding the fact that Petitioner has failed to file a motion seeking leave of the Court to amend his Complaint, see Fed.R.Civ.P. 15, both motions are denied as frivolous.
Accordingly, it is hereby
ORDERED AND ADJUDGED:
1. Respondent's Motion to Dismiss (doc. 3) is GRANTED.
2. All remaining motions (docs. 6, 13) is DENIED.
3. The Clerk shall enter judgment in favor of Respondent and is directed to close this case.