Opinion
Case No.: 6:01-cv-135-Orl-28JGG
April 17, 2001
ORDER
This cause came on for consideration without oral argument on Plaintiffs' "Administrative Notice, Notice of Non-Acceptance o[f] Removal, Notice of Default, Notice of Lack of Jurisdiction, and Demand that Removal be Revoked and Case Remanded" (Doc. 8, filed February 8, 2001) and Defendant's Motion to Dismiss (Doc. 14, filed February 23, 2001).
The pro se Plaintiffs initially instituted this action in state court, pursuant to Section 713.21, Florida Statutes, seeking the discharge of their tax debts and cancellation of the liens for those debts. Because the named Defendant in this suit is employee of the United States Internal Revenue Service, removal to this court is proper pursuant to 28 U.S.C. § 1442(a)(1) and 1444.
A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts that would entitle him to relief. See Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Thus, when ruling on a motion to dismiss the trial court is required to view the complaint in the light most favorable to the plaintiff. See Scheuer v. Rhodes, 416 U.S. 232 (1974). Furthermore, courts are charged with liberally construing the complaints of pro se litigants, who are held to less stringent standards for drafting pleadings than lawyers. See Estelle v. Gamble, 429 U.S. 97, 106 (1976).
A suit against IRS employees in their official capacity is, in essence, a suit against the United States. See Rosado v. Curtis, 885 F. Supp. 1538, 1542 (M.D. Fla. 1995), aff'd, 84 F.3d 437 (11th Cir. 1996). Therefore, the United States is the proper defendant in this case, and the doctrine of sovereign immunity applies. Under this doctrine, the United States is immune from suit unless it expressly waives its immunity and consents to be sued. See Rosado, 855 F. Supp. at 1542. Additionally, the Government's waiver of sovereign immunity must be "unequivocally expressed" to be effective. See United States v. Nordic Village, Inc., 503 U.S. 30, 33 (1992).
In the instant case, the United States has not expressly waived its sovereign immunity or consented to be sued pursuant to Section 713.12, Florida Statutes. Therefore, this Court lacks subject matter jurisdiction over this case. Accordingly, it is ORDERED and ADJUDICATED as follows:
1. Plaintiffs' "Administrative Notice, Notice of Non-Acceptance o[f] Removal, Notice of Default, Notice of Lack of Jurisdiction, and Demand that Removal be Revoked and Case Remanded" (Doc. 8, filed February 8, 2001) is DENIED.
2. Pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, Defendant's Motion to Dismiss (Doc. 14, filed February 23, 2001) is GRANTED.
3. This case is DISMISSED with prejudice.
4. The Clerk is DIRECTED to close the file.
5. All pending motions are DENIED as moot.
DONE and ORDERED in Chambers.