Opinion
Case No. 6:00-CV-1314-ORL-19B
December 15, 2000
ORDER
This cause comes before the Court on Defendants United States of America, Internal Revenue Service, and Department of Treasury's Motion to Dismiss (Doc. No. 16, filed November 7, 2000); Plaintiff Loretta Thompson's Memorandum of Law in Response to the Defendants' Motion to Dismiss (Doc. No. 17, filed November 22, 2000); and Plaintiff Aliene Turner's Memorandum of Law in Response to Defendants' Motion to Dismiss (Doc. No. 19, filed December 7, 2000).
The remaining Plaintiffs did not respond to the Motion to Dismiss.
The Plaintiffs initially instituted this action in state court seeking reformation and/or construction of a trust, and declaratory relief. See (Doc. No. 2). The United States of America, Department of Treasury, and the Internal Revenue Service (the "Government Defendants") then removed this action pursuant to Title 28 United States Code, sections 1441(a) and 1442(a)(1). On November 7, 2000, the Government Defendants moved to dismiss this action under Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure because: (1) the Internal Revenue Service and Department of Treasury are not proper parties to this action; 2) based on sovereign immunity, the Court lacks jurisdiction in this action; and 3) the plaintiffs have failed to state a claim upon which relief can be granted.
Section 1442(a)(2) provides as follows:
A civil action or criminal prosecution commenced in a State court against any of the following may be removed by them to the district court of the United States for the district and division embracing the place wherein it is pending:
(1) The United States or any agency thereof or any officer (or any person acting under that officer) of the United States or of any agency thereof, sued in an official or individual capacity for any act under color of such office or on account of any right, title or authority claimed under any Act of Congress for the apprehension or punishment of criminals or the collection of the revenue.28 U.S.C. § 1442 (a)(2)
Each argument asserted by the Government Defendants is well taken; thus, the instant action against them must be dismissed. Indeed, the Plaintiffs that responded to the Government Defendants' Motion conceded that dismissal is proper. In light of the dismissal of the Government Defendants from the instant action, it appears that this Court has been deprived of subject matter jurisdiction over the case. Thus, the claims asserted against the remaining parties must be remanded to the state court. See 28 U.S.C. § 1447 (c) ("If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded.")
CONCLUSION
Based upon the foregoing, the Court RULES that:
(1) Defendants United States of America, Internal Revenue Service, and Department of Treasury's Motion to Dismiss (Doc. No. 16) is GRANTED.
(2) The claims asserted by the Plaintiffs against the United States of America, the Internal Revenue Service, and the Department of Treasury are hereby DISMISSED.
(3) This cause is hereby REMANDED to the Circuit Court, Seventh Judicial Circuit in and for Volusia County, Florida.