Opinion
Case Number: 03-61956-CIV-MARTINEZ
January 13, 2004
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS
THIS CAUSE came before the Court upon Defendant's Motion to Dismiss ( D.E. No. 3-1), filed on November 4, 2003 .
I. Procedural History
On or about September 9, 2003, the Plaintiff filed suit against the United States in the Seventeenth Judicial Circuit in and for Broward County, Florida, and served process upon the United States on or about October 2, 2030. See D.E. No. 1-1, filed on October 28, 2003. Defendant timely and properly removed this case to federal court pursuant to 28 U.S.C. § 1441 and 1444. Id. Subsequently, on November 4, 2003, the United States filed the instant motion to dismiss. The time to respond to the motion has passed, and Plaintiff has not filed a response to the motion. Accordingly, Defendant's Motion to Dismiss is ripe for adjudication.
1I. Standard of Review
A complaint should be dismissed under Federal Rule of Civil Procedure 12(b)(6) only when it is clear that a Plaintiff can prove no set of facts in support of the claim, which would entitle him to relief FED. R. CIV. P. 12(b)(6). Hishon v. King Spalding, 467 U.S. 69, 73 (1984). In considering a motion to dismiss, the Court must accept the Plaintiff's allegations as true and view them in the light most favorable to the plaintiff. Peterson v. Atlanta Hous. Auth., 998 F.2d 904, 912(11th Cir. 1993). Furthermore, the court has held that under this standard, the moving party sustains a very high burden. Jackman v. Hospital Corp. of America Mideast, Ltd., 800 F.2d 1577, 1579 (11th Cir. 1986).
III. Analysis
In its motion, the United States argues that the United States has not waived its sovereign immunity. Federal courts have no jurisdiction to hear a claim against the United States absent a waiver of sovereign immunity. See FDIC v. Meyer, 510 U.S. 471, 475 (1994) (holding that "[a]bsent a waiver, sovereign immunity shields the Federal government and its agencies from suit"); United States v. Sherwood, 312 U.S. 584, 586 (1941) (holding that "[t]he United States, as sovereign, is immune from suit save as it consents to be sued . . ., and the terms of its consent to be sued in any court define that court's jurisdiction to entertain the suit). Waivers of sovereign immunity must be unequivocally expressed. United States v. King, 395 U.S. 1, 4 (1969); United States Dep't of Energy v. Ohio, 503 U.S. 607, 615 (1992). Waivers of sovereign immunity must be narrowly construed in favor of the sovereign. McMahon v. United States, 342 U.S. 25, 27 (1951); United States v. Idaho, 508 U.S. 1, ___, 113 S.Ct. 1893, 1897 (1993).
The Court has reviewed the Plaintiff's Complaint and finds no reference or allegations concerning the United States' waiver of sovereign immunity. Plaintiff's allegations are insufficient to establish jurisdiction and withstand a motion to dismiss.
Accordingly, for the reasons stated more fully herein, it is hereby:
ORDERED AND ADJUDGED that
Defendant's Motion to Dismiss (D.E. No. 3-1) is GRANTED. Plaintiff shall have ten (10) days from the date of this Order to file an Amended Complaint or this case shall be dismissed without prejudice.
DONE AND ORDERED.