Opinion
Case No. 6:02-cv-1350-Orl-31DAB
December 10, 2002
ORDER
This cause came on for consideration without oral argument on Defendant's Motion to Dismiss and Incorporated Memorandum (Doc. 4), Plaintiffs Notice of Non-Acceptance of Removal and Motion (Doc. 7), and Defendant's Memorandum in Opposition to Motion to Remand (Doc. 11). The Court has considered the motions and memoranda, and is otherwise advised in the premises.
I. PROCEDURAL HISTORY
On October 1, 2002, David H. Good II filed a Complaint: To Show Cause for Claim of Lien and to Discharge by Cancellation in the Ninth Judicial Circuit Court (Doc. 2) naming A. Silver, an officer of the Internal Revenue Service ("IRS"), as the defendant. In his Complaint, Good sought an order pursuant to section 713.21, Florida Statutes, discharging a federal tax lien lodged against him. A copy of the tax lien was attached to the Complaint.
Numerous other virtually identical suits have been filed in the state and federal courts. See Notice by A. Silver of Pendency of Other Actions (Doc. 3), attached as in Appendix A to this Order. These similar suits have been dismissed as meritless.
Sections 713.21 and 713.22 deal with construction liens.
The United States, on behalf of Silver, removed the case under 28 U.S.C. § 1442 to this Court as it is a suit against a federal officer for acts arising out of the collection of internal revenue. Subsequently, Silver filed the instant Motion to Dismiss the case asserting that the United States is the proper party and it has not waived sovereign immunity with respect to suits under sections 713.21 and 713.22. Good did not respond to the motion. Rather, he filed a petition to remand the case (Doc. 7).
II. STANDARD OF REVIEW
A court should not dismiss a complaint for failure to state a claim unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Hishon v. King Spalding, 467 U.S. 69, 73 (1984); see also Sea Vessel, Inc. v. Reyes, 23 F.3d 345, 347 (11th Cir. 1994) (citation omitted). In evaluating a motion to dismiss a complaint, the court must accept all the alleged facts as true, and draw all inferences from those facts in the light most favorable to the plaintiff. See. e.g., Cruz v. Beto, 405 U.S. 319 (1972); Hunnings v. Texaco, Inc., 29 F.3d 1480, 1483 (11th Cir. 1994). The court, however, does not generally accept as true conclusory allegations. South Fla. Water Mgmt. Dist. v. Montalvo, 84 F.3d 402, 408 n. 10 (11th Cir. 1996) (citing Associated Builders, Inc. v. Alabama Power Co., 505 F.2d 97, 100 (5th Cir. 1974)). A motion to dismiss for failure to state a claim merely tests the sufficiency of the complaint; it does not decide the merits of the case. Milburn v. United States, 734 F.2d 762, 765 (11th Cir. 1984).
Consideration of matters beyond the complaint is improper in the context of a motion to dismiss. Id. However, a written exhibit attached to a pleading becomes part of the pleading. Fed.R.Civ.P. 10(c); Taylor v. Appleton, 30 F.3d 1365, 1368 (11th Cir. 1994); see generally Grossman v. Nationsbank, N.A., 225 F.3d 1228, 1231 (11th Cir. 2000). "[I]n the event of conflict between the bare allegations of the complaint and any exhibit attached pursuant to Rule 10(c), the exhibit prevails."Fayetteville Investors v. Commercial Builders Inc., 936 F.2d 1462, 1465 (4th Cir. 1991) (citing 2A Moore's Federal Practice, ¶ 10.06, p. 10-24); Fladell v. Palm Beach County Canvassing Bd., 772 So.2d 1240, 1242 (Fla. 2000) (citation omitted).
III. ANALYSIS
In the Complaint, Good alleges that Silver filed Notices of Federal Tax Lien Under Internal Revenue Laws ("Notices") against him. Good seeks an order discharging the lien contending that the one-year period in which claims of lien or debt can be enforced under section 713.22(1) has expired.
Although neither Silver nor the United States has requested that the United States be substituted as the proper party defendant, it appears that Silver was acting in his official capacity as an officer of the IRS. "A suit against the IRS employees in their official capacities is, in essence, a suit against the United States." Rosado v. Curtis, 885 F. Supp. 1538, 1542 (M.D. Fla. 1995), aff'd, 84 F.3d 437 (11th Cir. 1996). Good avers that because Silver has not presented evidence that he was acting within the scope of his employment when he filed the Notices, this is not a suit against the United States.
"Traditionally, the courts have held that ultra vires acts of an agent of the sovereign are not those of the sovereign. . . Thus, a suit is not violative of the doctrine of sovereign immunity if (1) the officer's powers are limited by statute and he acts in excess of that authority . . ."Alabama Rural Fire Ins. v. Naylor, 530 F.2d 1221, 1226 (5th Cir. 1976). Here, the Notices were filed pursuant to 26 U.S.C. § 6323 (a). The Complaint does not allege how Silver acted in excess of the authority conferred by that statute. Accordingly, the Court finds that this is a suit against Silver in his official capacity. As such, remand should be denied.
All decisions of the Fifth Circuit prior to October 1, 1981 are binding precedent on this Court. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc).
Furthermore, "[t]he United States is immune from suit unless it has expressly waived its immunity and has consented to suit." Rosado, 885 F. Supp. at 1542. "Waivers of the Government's sovereign immunity, to be effective, must be `unequivocally expressed.'" United States v. Nordic Vill., Inc., 503 U.S. 30, 33 (1992) (citations omitted). The United States has not expressly waived its sovereign immunity to permit suit against it under sections 713.21 and 713.22. Therefore, Good cannot maintain his suit.
IV. CONCLUSION
Based on the foregoing, it is therefore
ORDERED AND ADJUDGED that:
1) Defendant's Motion to Dismiss (Doc. 4) is GRANTED; and
2) Plaintiffs Motion to Remand (Doc. 7) is DENIED.
The Clerk is directed to close this file.
DONE and ORDERED