Opinion
Case No. 5:04-Cv-152-Oc-10GRJ
September 27, 2001
REPORT AND RECOMMENDATION
Specific written objections may be filed in accordance with 28 U.S.C. § 636, and Rule 6.02, Local Rules, M.D.Fla., within ten (10) days after service of this report and recommendation. Failure to file timely objections shall bar the party from a de novo determination by a district judge and from attacking factual findings on appeal.
Pending before the Court is the Motion to Dismiss and Memorandum in Support Thereof (Doc. 10) filed by the United States, on behalf of the named Defendant. Plaintiff has not filed a response to Defendant's Motion to Dismiss, and the time in which to do so timely has since expired. Accordingly, this matter is ripe for resolution by the Court.
Procedural History and Facts
The Plaintiff, proceeding pro se, filed an action in state court entitled "Complaint `in rem and quasi in rem'" against Defendant One Record of Lien on April 23, 2001. (Doc. 2.) Plaintiff's Complaint alleges that on April 11, 2001, a Notice of Federal Tax Lien was filed against the Plaintiff in Marion County. Plaintiff challenges the validity of the Notice of Federal Tax Lien and claims that the lien is fraudulent and constitutes a "complete defense" in relation to the claims of lien as filed. Plaintiff contends that the Defendant has not revealed a legitimate foundation for the claims of lien and requests an "Order of Cancellation" to discharge all claims of lien.
On May 16, 2001, the Defendant timely filed a Notice of Removal (Doc. 1) with this Court removing the action pursuant to 28 U.S.C. § 1441(a) and 1446(b). Thereafter, on May 21, 2001, the Plaintiff filed "Complainant's First Amended Complaint "in rem and quasi in rem'" (Doc. 9) in the state court. Plaintiff's Amended Complaint (Doc. 9) names "Robert A. Butterworth, Office of the Attorney General of Florida" and "Brad King, Office of the State Attorney for the Fifth Judicial Circuit of Florida" as plaintiffs, and "Paul H. O'Neill, The Office of the Secretary of the Treasury of the United States" and "Candace R. Donaldson, Delegate of the Secretary" as defendants. Plaintiff alleges in the Amended Complaint that there is no legitimate foundation for the claim of lien, that the lien is fraudulent, and that the lien is "void from inception for failure to reveal the legitimate subject of taxation." Thus, Plaintiff seeks an "Order of Cancellation" from the Court cancelling the lien.
Motion to Dismiss Standard
In passing on a motion to dismiss under Rule 12(b)(6), the Court is mindful that "[d]ismissal of a claim on the basis of barebones pleadings is a precarious disposition with a high mortality rate." 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 in support of his claim which would entitle him to relief." The threshold of sufficiency that a complaint must meet to survive a motion to dismiss is exceedingly low. A complaint is sufficiently pled "if it shows that the plaintiff is entitled to any relief which the Court can grant, regardless of whether it asks for the proper relief." Also, a court must accept a plaintiff's well-pled facts as true and construe the complaint in the light most favorable to the plaintiff.
International Erectors, Inc., v. Wilhoit Steel Erectors Rental Servs., 400 F.2d 465, 471 (5th Cir. 1968).
Conley V. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02 (1957);see also Cook Nichol, Inc., v. The Plimsoll Club, 451 F.2d 505, 506 (5th Cir. 1971) ("a motion to dismiss for failure to state a claim should not be granted unless it appears to a certainty that the plaintiff would not be entitled to recover under any state of facts which could be proved in support of his claim").
Ancata v. Prison Health Servs., 769 F.2d 700, 703 (11th Cir. 1985) (citation omitted).
Dotschay v. National Mut. Ins. Co., 246 F.2d 221 (5th Cir. 1957) (emphasis added).
Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); Howry V. Nisus, Inc., 910 F. Supp. 576 (M.D.Fla. 1995).
Motion to Dismiss
Defendant's Motion to Dismiss (Doc. 10) states that although this action was nominally brought as an action against a federal tax lien record and the federal employees who are the alleged "lienors," the action should be treated as one against the Internal Revenue Service.Id. at 3-4. Accordingly, the Defendant argues that the Court lacks subject matter jurisdiction over this proceeding because the relief sought by the Plaintiff would be obtained against the sovereign, the United States, and to proceed with such suit would require a waiver of sovereign immunity, which has not been alleged. Id. at 4.Further, Defendant suggests that the Plaintiff's Complaint seeks relief pursuant to Florida Statutes § 713.21, which sets forth the methods for discharging liens such as construction and other miscellaneous liens specified in the statute. Id. at 4-5. Defendant contends that the statute is inapplicable to this cause because federal tax liens may be released only pursuant to federal law. Id.; see 26 U.S.C. § 6325(a) (providing, in part, that the Secretary of the Treasury shall release a federal tax lien within thirty days of finding that the underlying liability has been fully paid, is unenforceable as a matter of law, or that a bond has been furnished); see also Ted L. Williams v. One `Claim of Lien' Record, Case No. 2001-02024-CA (Fla.Cir.Ct. Apr. 17, 2001) (holding that Florida's construction lien law has no application to the federal tax lien the plaintiff sought to cancel). Therefore, Defendant argues that because the Plaintiff's Complaint does not make the factual assertions necessary to support a duty to release the federal tax lien, the Complaint fails to state a claim upon which relief may be granted pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Id. at 5-6.
Defendant also argues that the Plaintiff's efforts to obtain an injunction requiring the discharge of the underlying tax and cancellation of the lien are frivolous because the Anti-Injunction Act does not permit suits that operate to restrain the assessment or collection of any tax.Id. at 6. Finally, Defendant suggests that Plaintiff's remedy is well established, he may file a refund suit to recover any taxes he believes were improperly assessed and collected from him, and that Plaintiff cannot show that the Defendant has no possibility of prevailing in this situation. Id. at 7.
Discussion
Plaintiff's Complaint seeks an order discharging Plaintiff's tax debts, and cancelling liens for such debts. In this case, Plaintiff has brought an action against a federal tax lien and the federal employees involved who are the alleged "lienors." The appropriate defendant in this matter is actually the Internal Revenue Service, which is the entity imposing the lien against Plaintiff, and not the actual federal tax lien or those federal employees who were acting within their official capacity for the Internal Revenue Service. A suit against an Internal Revenue Service employee in his official capacity is, in essence, a suit against the United States. Therefore, the Court concludes that the United States is the proper party defendant in this case, and the doctrine of sovereign immunity applies.
Rosado v. Curtis, 885 F. Supp. 1538, 1542 (M.D.Fla. 1995), aff'd 84 F.3d 437 (11th Cir. 1996).
Plaintiff's Complaint is based upon claims under Florida Statutes § 713.21, which addresses the discharge and duration of construction liens in Florida. However, the United States has not expressly waived its sovereign immunity with respect to suit initiated pursuant to this state law and, under the doctrine of sovereign immunity, the United States is immune from suit unless it expressly waives its immunity and consents to be sued. Additionally, the United States' waiver of sovereign immunity must be "unequivocally expressed" to be effective.
Rosado, 885 F. Supp. at 1542; see also United States v. Dalm, 494 U.S. 596, 608 (1990) (finding that the United States, as sovereign, is immune from suit unless it has consented to be sued); United States v. Testan, 424 U.S. 392, 399 (1976) (holding that waivers of sovereign immunity are to be strictly construed and exceptions are not implied).
United States v. Nordic Village, Inc., 503 U.S. 30, 33 (1992).
In the instant case, the United States has not "unequivocally expressed" a waiver of its sovereign immunity and has not consented to be sued under Florida Statutes § 713.21. Thus, this Court lacks subject matter jurisdiction over this cause. Accordingly, pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, the Court concludes that Defendant's Motion to Dismiss (Doc. 10) is due to be GRANTED.
Additionally, the Court determines that it would be futile to permit the Plaintiff to amend his First Amended Complaint because the United States has not expressly waived its sovereign immunity to permit suit against it. This case is significantly similar in nature to a group of tax protest cases that have been filed in both state and federal courts contemporaneously and which contain virtually identical pleadings and papers. (Doc. 3, Notice of Pendency of Other Actions.)
Under Rule 15(a) of the Federal Rules of Civil Procedure the court may permit a plaintiff to amend his complaint. However, the decision of a court to deny leave to amend is not an abuse of discretion when leave to amend would prejudice the defendant, follows undue delay, or would be futile. Foman v. Davis, 371 U.S. 178, 182-83 (1962); see Campbell v. Emory Clinic, 166 F.3d 1157, 1162 (11th Cir. 1999) (citing Technical Resource Servs., Inc. v. Dornier Medical Sys., Inc., 134 F.3d 1458, 1463-64 (11th Cir. 1998)).
See also Militello v. O'Neal, No. 8:00-Cv-1635-T-17A, 2000 WL 1607319, at *1 (M.D.Fla. Sept. 29, 2000) (holding that it would be futile to permit plaintiff to amend the complaint in a case in which the United States has not expressly waived its sovereign immunity to permit suit against it).
For the foregoing reasons it is, therefore, respectfully RECOMMENDED that:
(1) The Motion to Dismiss (Doc. 10) filed by Defendant be GRANTED and the Complaint be DISMISSED with prejudice.