Opinion
No. 8:00-cv-2332-T-23TGW
January 12, 2001
ORDER
Before the Court is the plaintiff's motion to remand (Doc. 7), the defendant's motion to vacate an order of the state court entered after removal of this action (Doc. 11), and the defendant's motion to dismiss (Doc. 12). As the defendant's "Notice of Pendency of Other Actions" (Doc. 4) reflects, this action is substantially identical to several other actions brought by persons seeking to discharge federal income tax liens.
The plaintiff's motion to remand (Doc. 7) is DENIED. The defendant is an employee of the Internal Revenue Service (Doc. 10). When a plaintiff asserts a claim against an individual defendant for actions performed in the individual's official capacities as an employee of the United States, the action is in reality against the United States. See Hawaii v. Gordon, 373 U.S. 57, 58(1963). Pursuant to 28 U.S.C. § 1442(a)(1), the United States is entitled to remove this action to federal court.
The defendant's "Motion to Vacate the Order of the Florida Circuit Court Entered After the Removal of this Case" (Doc. 11) merits some discussion. Although the defendant filed a notice of removal in this Court on November 14, 2000, the notice to the state court of the removal of this action was not docketed by the state court until November 22, 2000. Accordingly, when Circuit Court Judge Ralph Steinberg signed the plaintiff's proposed "Order of Cancellation" on November 16, 2000, the court was unaware of the November 14 removal.
Theoretically, some debate exists whether removal of an action to federal court is accomplished at the moment the notice is filed in federal court (in this case, November 14, 2000) or at the moment of completion of the required statutory notices to the parties and the state court (in this case, November 22, 2000), in which case the removal relates back to the filing of the original notice. See Wright, Miller Cooper, Federal Practice and Procedure: Jurisdiction 3d § 3737. No matter; the practical result is the same. "[A]ny further proceedings in the state court are considered coram non judice and will be vacated by the federal court." Wright, Miller Cooper, Federal Practice and Procedure: Jurisdiction 3d § 3737 n. 8 (citing numerous cases). Accordingly, the plaintiff is ordered to show cause on or before January 29, 2001, why the defendant's motion to vacate (Doc. 11) the state court's November 16, 2000 "Order of Cancellation" should not be granted and why this action should not be dismissed.
ORDERED