ROY B. DALTON, Jr., District Judge.
Upon consideration, the Court finds that the Motion to Dismiss is due to be denied and the Court's Order to Show Cause (Doc. 23) is due to be discharged.
This action arises from a prior state court action ("
Shortly thereafter, the Government moved to dismiss the Instant Action on the ground that the Court lacked subject matter jurisdiction. (Doc. 12 ("
Plaintiff's Amended Complaint (Doc. 22) differs substantively from the Original Complaint in only two respects. First, the Amended Complaint asserts that the Court has diversity jurisdiction over the Instant Action pursuant to 28 U.S.C. § 1332. (Doc. 22, ¶ 2.) Second, the Amended Complaint requests that the Court: (1) adjudge that Plaintiff's mortgage is superior to that of the Government's; (2) order foreclosure of the Government's Lien; (3) determine the remaining amount due to Plaintiff under the Mortgage ("
Finding that 28 U.S.C. § 1332 does not provide a jurisdictional basis for an action in which the Government is a defendant, the Court ordered Plaintiff to show cause by written response as to why the action should not be dismissed for lack of subject matter jurisdiction. (Doc. 22 ("
Removal jurisdiction is "a species" of subject matter jurisdiction. See Cogdell v. Wyeth, 366 F.3d 1245, 1247 (11th Cir. 2004). It exists where the court would have had original jurisdiction over the action. 28 U.S.C. § 1441(a). A lack of removal jurisdiction is equivalent to a lack of subject matter jurisdiction where the district court lacks original jurisdiction to entertain the suit. See Cogdell, 366 F.3d at 1247-48.
In removal actions, the defendant bears the burden of proving by a preponderance of the evidence that jurisdiction exists, Williams v. Best Buy Co., 269 F.3d 1316, 1319 (11th Cir. 2001), and "all doubts about jurisdiction should be resolved in favor of remand to state court." See Univ. of S. Ala. v. Am. Tobacco Co., 168 F.3d 405, 411 (11th Cir. 1999).
"The doctrine of sovereign immunity prohibits suits against the [Government] unless the [Government] specifically consents to be sued." Hardy v. United States (In re Hardy), 97 F.3d 1384, 1388 (11th Cir. 1996). To be effective, "waivers of the Government's sovereign immunity must be unequivocally expressed and are not generally to be liberally construed.'" Id. (quoting United States v. Nordic Village, Inc., 503 U.S. 30, 33-34 (1992)).
"Sovereign immunity is jurisdictional in nature. Indeed, the `terms of [the Government's] consent to be sued in any court define that court's jurisdiction to entertain the suit.'" Fed. Deposit Ins. Corp. v. Meyer, 510 U.S. 471, 475 (1994) (quoting United States v. Sherwood, 312 U.S. 584, 586 (1941)).
Two distinct issues lie at the heart of this dispute: (1) first, whether the Court has subject matter jurisdiction under any of the removal statutes tendered by the parties; and (2) second, whether the doctrine of sovereign immunity bars this suit. The Court will consider each issue in turn.
Collectively, the parties present four jurisdictional bases on which the Court may proceed in this action. The first statute is 28 U.S.C. § 1442(a)(1), which—in relevant part—permits the removal of a civil action initiated against the United States, or any agency thereof, on account of any right, title, or authority claimed under any Act of Congress for the collection of revenue. The Instant Action squarely falls into this category.
Second, both Plaintiff and the Government contend that the Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. § 1444, which authorizes the removal of any action brought under 28 U.S.C. § 2410 against the United States in state court. In turn, § 2410 allows the United States to be named a party in any civil action in federal district court or state court that, with respect to real or personal property on which the United States has, or claims, a mortgage or lien, seeks: (1) to quiet title; (2) to foreclose a mortgage or other lien; (3) to partition; (4) to condemn; or (5) interpleader. Importantly, § 2410(c) requires that "an action to foreclose a mortgage or other lien, naming the United States as a party under this section, must seek judicial sale" ("
Third, Plaintiff contends that the Court has diversity jurisdiction over the Instant Action pursuant to 28 U.S.C. § 1332. However, as intimated in its OTSC, the Court perceives no jurisdictional basis on which a Plaintiff may proceed against the Government under § 1332, as the Government is neither a citizen of a state nor a subject of a foreign state. See 28 U.S.C. § 1332. Ergo, contrary to Plaintiff's contention, the Court does not possess diversity jurisdiction over the Instant Action.
Finally, Plaintiff argues that the Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1346(f), which provides that "[t]he district courts shall have exclusive original jurisdiction under section 2409a to quiet title to an estate or interest in real property in which an interest is claimed by the United States." However, because § 2409 does not apply to actions which may be brought under § 2410, the Court concludes that it does not have subject matter jurisdiction under § 1346(f).
Nonetheless, the Court has determined that the Instant Action is properly before the Court pursuant to §§ 1442(a)(1) and 1444; thus, the Court has subject matter jurisdiction over this action.
Having concluded that the Court has subject matter jurisdiction, the Court will now address whether the instant action is barred by the doctrine of sovereign immunity. Upon consideration, the Court finds that it is not.
While sovereign immunity implicates the Court's subject matter jurisdiction, or power to hear the case, see Meyer, 510 U.S. at 475, the two are distinct in their operation. Indeed, sovereign immunity operates similarly to an affirmative defense and may be expressly waived. See generally id. On the other hand, because federal courts are courts of limited jurisdiction, subject matter jurisdiction—as conferred and defined by statute— must be affirmatively demonstrated at the outset of the action. See Morrison v. Allstate Indem. Co., 228 F.3d 1255, 1260-61 (11th Cir. 2000). Furthermore, a defense that the Court lacks subject matter jurisdiction can never be waived. See Fed. R. Civ. P. 12(h)(3).
Pursuant to 28 U.S.C. § 2410, the Government has waived its sovereign immunity for civil actions to foreclose a mortgage on property on which it claims a lien, so long as such action seeks a judicial sale. According to the Demand for Relief in the Amended Complaint, Plaintiff is seeking a judicial sale in the Instant Action. (Doc. 22, p. 3.) As such, the Court finds that the Government has waived its sovereign immunity.
In particular, the Court rejects the Government's argument that Plaintiff cannot seek a judicial sale as the title owner of the Property because it no longer has a mortgage that can be foreclosed. (See Doc. 24, p. 3.) Indeed, the Government's contention flies in the face of the very nature of a re-foreclosure action, where, as to the omitted lienholder, "the situation is the same as if no foreclosure had occurred." Quinn, 129 So. at 692. As set forth by the Florida Supreme Court, in an action to re-foreclose a mortgage, the purchaser of mortgaged property at a foreclosure sale, "becomes entitled to an action de novo for the foreclosure of such mortgage against all parties holding junior [e]ncumbrances who were omitted as parties to the foreclosure proceedings under which the purchaser bought [the property]." Id. In such an action, the Court may either: (1) require that the junior lienholder exercise his right of redemption; or (2) order a foreclosure and sale. Id. at 693. As Plaintiff has sought both of these alternative remedies in its Demand for Relief, the Court sees no basis for the Government's Second MTD and finds that is due to be denied.
Accordingly, it is hereby