Opinion
CASE NO. 02-73324
October 6, 2003
ORDER
This matter is before the Court on Plaintiff Fifth Third Bank's Motion for Entry of Order and Entry of Default Judgment. Plaintiff filed a one-count Complaint for Judicial Mortgage Foreclosure in Wayne County Circuit Court on June 24, 2002. Defendant United States claimed an interest in the property Plaintiff is attempting to foreclose upon and removed the action to this Court on August 15, 2002. On August 26, 2003, the Court ordered the parties to show cause whether this matter should be remanded after Defendant United States disclaimed its interest in the property. Only the United States responded.
Defendant United States removed this case from Wayne County Circuit Court under 28 U.S.C. § 1444, which provides for removal of actions brought against the United States affecting property on which it asserts a lien under 28 U.S.C. § 2410. Because the United States claimed a tax lien on the property at the time the complaint was filed, Plaintiff properly named the United States as a Defendant under § 2410. Thus, the Court had subject matter jurisdiction at the time of removal, Defendant United States, however, subsequently disclaimed its interest in the property on November 27, 2002.
Absent an explicit waiver of sovereign immunity, the federal government cannot be sued and the district court lacks jurisdiction to hear a claim against the government. See United States v. Dalm, 494 U.S. 596, 608 (1990). Jurisdiction was proper in this case at the time of removal because § 2410 allows a plaintiff to sue the United States in instances where the United States "has or claims a, lien" on property the plaintiff seeks to foreclose upon. Thus, the issue arose as to whether the Court retained jurisdiction over the matter when the United States no longer claimed an interest in the property. A federal statute analogous to § 2410 explicitly divests the district court of jurisdiction when the United States disclaims its interest in property that is the subject of a quiet title action. See 28 U.S.C. § 2409a(e). It does not appear, however, that there is any similar provision divesting the Court of jurisdiction under § 2410 when the United States releases a tax lien. Therefore, the Court continues to have proper subject matter jurisdiction in this case. See Kabakjian v. United States, 267 F.3d 208, 212 (3d Cir. 2001) (holding that the district court had jurisdiction under § 2410 notwithstanding the United State's release of its tax lien on the property after the complaint was filed).
Defendant United States, in its response to the Court's order to show cause, suggested that the Court should grant Plaintiff a final judgment under Fed.R.Civ.P. 54(b) on its claim against the United States and then remand the remaining state law claims under either subsection (2) or subsection (3) of 28 U.S.C. § 1367(c). The Court declines to adopt the procedure suggested by the United States, Section 1367(c)(3) only allows remand when the district court has "dismissed all claims" over which it has original jurisdiction. Granting Plaintiff a final judgment against Defendant United States under Rule 54(b) would not constitute a dismissal of the federal claim within § I367(c)(3). Furthermore, the United States has provided no authority for using § 1367(c)(2), which allows for remand in cases where state law claims predominate over federal claims, in conjunction with Rule 54(b). Accordingly, the Court has subject matter jurisdiction and the case shall proceed in this Court as scheduled.
IT IS SO ORDERED.