DAVY v. SIX RECORDS OF LIEN

MAURICE M. PAUL, Senior District Judge

This matter is before the Court on the motion to dismiss filed by the defendant (doc. 4) on September 9, 2002. The plaintiff did not file a response to the motion to dismiss within the time period specified by Local Rule 7.1(C)(1). However, the plaintiff sent a letter to the United States which contained his responses to the motion to dismiss and arguments amounting to a motion to remand this case to state court. The defendant submitted a copy of the letter to the Court as an attachment to doc. 8, and the Court has reviewed the response. For the reasons given below, the implicit motion to remand is denied, and the defendants motion to dismiss is granted.

The plaintiff filed a suit in state court seeking to have the state court discharge several federal tax liens under the auspices of Fla. Stat. 713.21(4). The defendant removed the case to federal court, noting that the United States, or one of its agencies, the Internal Revenue Service, was the defendant. Such an action is removable under 28 U.S.C. § 1442(a)(1). The defendant then moved to dismiss, arguing that 713.21(4) applied only to construction liens and also arguing that the United States has not waived its sovereign immunity for a suit such as this one.

The Court agrees with the government that the Complaint clearly does not state a claim and therefore declines to answer the sovereign immunity question. The Florida statutory provision that plaintiff relies on, Fla. Stat. 713.21, states as follows:

713.21 Discharge of Lien A lien properly perfected under this chapter may be discharged by any of the following methods:

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(4) By an order of the circuit court of the county where the property is located, as provided in this subsection. Upon filing a complaint therefore by any interested party the clerk shall issue a summons to the lienor to show cause within 20 days why his lien should not be enforced by action or vacated and canceled of record. Upon failure of the lienor to show cause why his lien should not be enforced or his failure to commence such action before the return date of the summons the court shall forthwith order cancellation of the lien.

The first sentence of 713.21 points out that it applies only to a "lien properly perfected under this chapter." Chapter 713 is entitled "Construction Liens" and section 713.02 sets out the "Types of Lienors and Exemptions" covered by the chapter. The individuals who are entitled to perfect a lien under Chapter 713 are those who "render professional services," such as an "architect, landscape architect, interior designer, engineer, or surveyor and mapper," Fla. Stat. 713.03; a person who "performs services or furnishes material to real property for the purpose of making it suitable as the site for the construction of an improvement or improvements," Fla. Stat. 713.04; or "a materialman or laborer . . . or a contractor who complies with the provisions of this part," Fla. Stat. 713.05-06. Nowhere in Chapter 713 is a tax lien mentioned as one "perfected under this chapter."

In short, with regard to tax liens, Fla. Stat. 713.21 does not provide the method of relief the plaintiff seeks. Therefore, the Court agrees with the United States that the plaintiff's complaint fails to state a claim upon which relief can be granted.

Accordingly, it is hereby

1. The plaintiffs motion for remand, contained within the letter attached to doc. 8, is DENIED. This case was properly removed to this Court.

2. The defendant's motion to dismiss (doc. 4) is GRANTED.

3. The Clerk shall enter judgment in favor of the defendant and is directed to close this case.