Opinion
Case No. 2:00-cv-407-FTM-29DNF
August 20, 2001
ORDER
This matter comes before the Court on Plaintiffs' Notice of Non-Acceptance of Removal and Petition to Remand to Original Jurisdiction (Doc. #14), filed October 24, 2000. Defendants Vicki Riley and S. Vecchione filed an Opposition (Doc. #27) on August 14, 2001, pursuant to this Court's Order (Doc. #25).
The Court previously entered an Order staying the instant case pending the entry of a final judgment in the related case, Case Number 2:99-cv-1-FTM-29DNF. (Doc. #16). A Judgment (Doc. #257) was entered in the related case, on July 26, 2001, and the stay on this case was lifted on August 1, 2001. (Doc. #25)
I Standard of Review:
On a motion to remand, the party seeking removal bears the burden of establishing jurisdiction in this Court by a preponderance of evidence.Diaz v. Sheppard, 85 F.3d 1502, 1505 (11th Cir. 1996); see also Triggs v. John Crump Toyota, Inc., 154 F.3d 1284, 1288 n. 4 (11th Cir. 1998);Burns v. Windsor Ins. Co., 31 F.3d 1092, 1094 (11th Cir. 1994). "`Under any manner of proof, the jurisdictional facts that support removal must be judged at the time of the removal, and any post-petition affidavits are allowable only if relevant to that period of time.'" Sierminski v. Transouth Fin. Corp., 216 F.3d 945, 949 (11th Cir. 2000) (citing Allen v. RH Oil Co., 63 F.3d 1326, 1335 (5th Cir. 1995)).
II. Issues on Motion to Remand:
A Notice of Removal (Doc. #1) was filed on September 26, 2000, on the basis of 28 U.S.C. § 1441, 1442(a)(1) or 1444, removing this action from the Circuit Court, Twentieth Judicial Circuit, in and for Lee County, Florida. The Complaint to Show Cause for Claim of Lien and to Discharge by Cancellation (Doc. #2), filed in United States District Court on September 26, 2000, seeks a hearing for defendants to show cause why the claims should not be canceled, and an order to discharge said liens if defendants fail to show cause.
Plaintiffs argue that the circuit courts have exclusive original jurisdiction over the federal tax liens pursuant to the Florida State Constitution and the Florida Statutes. In addition, plaintiffs argue that this Court does not have subject-matter jurisdiction. In support of their argument, plaintiffs cite to Fla. Stat. § 713.21(4) and Fla. Stat. § 48.193. Defendants counter that this Court has subject-matter jurisdiction under 28 U.S.C. § 1331, § 1340, and § 1346.
This section provides that "a lien properly perfected under this chapter may be discharged . . . [b]y an order of the circuit court of the county where the property is located . . . ."
Section 1331 states: "[t]he district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States."
Section 1340 provides that "[t]he district courts shall have original jurisdiction of any civil action arising under any Act of Congress providing for internal revenue, or revenue from imports or tonnage except matters within the jurisdiction of the Court of International Trade."
Section 1346 gives this Court concurrent original jurisdiction with the United States Court of Federal Claims over cases where the United States is a named defendant.
Having reviewed the Notice of Removal (Doc. #1) and all documents submitted relevant to that time, the Court finds that it does have jurisdiction over this matter and is due to deny the motion.
Accordingly, it is now
ORDERED:
Plaintiffs' Notice of Non-Acceptance of Removal and Petition to Remand to Original Jurisdiction (Doc. #14) is DENIED.