Opinion
Case No. 3:02cv276/LAC
October 10, 2002
ORDER
THIS CAUSE comes before the Court on a motion to dismiss filed by The United States of America on behalf of the named Defendant (Doc. 12), pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. Plaintiff has not filed a response.
Notwithstanding this Court's local rule providing that "failure to file a responsive memorandum may be sufficient cause to grant the motion," the Court considers Defendant's motion on the merits. See N.D. FLA. Loc. R. 7.1(C)(1).
Plaintiff, proceeding pro se, filed an action in state court entitled "Complaint To Show Cause Pursuant To F.S. 713.21(4)" against Defendant One Record of Lien on June 21, 2002 (Doc. 1). Plaintiff alleges that on April 30, 1998. a Notice of Federal Tax Lien was filed against him by the Internal Revenue Service (IRS) in Escambia County, resulting in a cloud upon his title to property. Plaintiff challenges the validity of the lien on grounds that tax lien judgments filed against him in various United States District Courts do not exist, that the imposition of the lien did not comply with Florida law, that the lien is "outside the territorial jurisdiction of Congress," and that no lawful foundation for the lien has been provided. As relief, Plaintiff requests that the lien be "canceled of record forthwith."
Florida Statutes Section 713.21, upon which Plaintiff bases his complaint, concerns the discharge and duration of construction liens in Florida. Although the named Defendant is "One Record Lien," it is clear that the action should be treated as against the United States. See Dugan v. Rank, 372 U.S. 609, 620, 83 S.Ct. 999, 1006, 10 L.Ed.2d 15 (1963). Under the doctrine of sovereign immunity, the United States is immune from suit unless it expressly and unequivocally waives its immunity and consents to be sued. See United States v. Nordic Village, Inc., 503 U.S. 30, 112 S.Ct. 1011, 1013-14, 117 L.Ed.2d 181 (1992); United States v. Daim, 494 U.S. 596, 110 S.Ct. 1361, 1368. 108 L.Ed.2d 548 (1990). Absent such a waiver, the action should be dismissed for lack of jurisdiction. See United States v. Mitchell, 445 U.S. 535, 538-39, 100 S.Ct. 1349, 1351-52, 63 L.Ed.2d 607 (1980). It is well established that the United States has not waived its 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 of the assessment or collection of any tax"); see also Perkins v. United States, 55 F.3d 910, 913 (4th Cir. 1995); Crisp v. United States, 966 F. Supp. 973, 975 (E.D. Cal. 1997); Rosado v. Curtis, 885 F. Supp. 1538, 1542 (M.D. Fla. 1995), aff'd, 84 F.3d 437 (11th Cir. 1996), cert. denied, 519 U.S. 1058, 117 S.Ct. 689, 136 L.Ed.2d 612 (1997).
Accordingly, the Court's ruling in this mailer may be summarized as follows, and IT IS HEREBY ORDERED:
1. Defendant's motion to dismiss (Doc. 12) is GRANTED.
2. This cause is dismissed with prejudice pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure.
ORDERED on this day of October, 2002.