The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
FIFTH THIRD BANK N.A.,
Plaintiff,
v. Case No: 2:20-cv-284-FtM-29MRM
LEE COUNTY CLERK OF COURT,
Defendant/Third
Party Plaintiff
UNITED STATES OF AMERICA
DEPARTMENT OF TREASURY,
Third Party Defendant.
OPINION AND ORDER
This matter comes before the Court on review of third-party
defendant’s Motion to Dismiss for Lack of Subject Matter
Jurisdiction and Failure to State a Claim (Doc. #25) filed on
August 6, 2020. Defendant/third-party plaintiff filed a Response
In Opposition (Doc. #26) on August 19, 2020. For the reasons set
forth below, the motion is granted.
I.
In October 2019, plaintiff Fifth Third Bank initiated this
matter in the Circuit Court of the Twentieth Judicial Circuit in
and for Lee County, Florida by filing a Complaint against
defendant/third-party plaintiff Lee County Clerk of Court (“Lee
County Clerk”). (Doc. #3.) According to the allegations in the
Complaint, Fifth Third Bank held a mortgage over an apartment
property in Cape Coral which was sold at a tax deed sale. (Id. ¶
5.) After the sale, Lee County Clerk held the excess proceeds in
the amount of approximately $58,890.72. (Id. ¶¶ 5-6.) When Fifth
Third Bank’s agent filed a claim for the excess proceeds, Lee
County Clerk stated the proceeds had already been disbursed to
third-party defendant Untied States of America Department of
Treasury (“United States”) based upon an Internal Revenue Service
tax lien. (Id. ¶¶ 9, 16.) The two-count Complaint accused Lee
County Clerk of (1) negligent disbursement of excess proceeds and
(2) breach of duty as bailee. (Id. pp. 2-3.)
In March 2020, Lee County Clerk filed a Third-Party Complaint
against the United States. (Doc. #7.) The one-count pleading
alleges a claim of equitable subrogation, asserting that should
Fifth Third Bank prevail on either of its claims in the Complaint,
Lee County Clerk is entitled to equitable subrogation and recovery
of the funds paid to the United States. (Id. ¶¶ 14-16.) In April
2020, the United States removed the matter to this Court under 28
U.S.C. § 1442(a)(1). (Doc. #1, pp. 2-4.)
On August 6, 2020, the United States filed the motion to
dismiss currently before the Court. (Doc. #25.) In the motion,
the United States argues the Third-Party Complaint should be
dismissed for (1) lack of subject matter jurisdiction and (2)
failure to state a claim. (Id. pp. 4-5.) Because the Court agrees
the Third-Party Complaint must be dismissed for lack of subject
matter jurisdiction, the failure to state a claim argument will
not be addressed.
II.
The United States seeks dismissal of the equitable
subrogation claim under Rule 12(b)(1) of the Federal Rules of Civil
Procedure, which provides for dismissal of an action if the Court
lacks subject matter jurisdiction. A motion to dismiss under Rule
12(b)(1) can be asserted on either facial or factual
grounds. Carmichael v. Kellogg, Brown & Root Servs., Inc., 572
F.3d 1271, 1279 (11th Cir. 2009). A facial attack to the court’s
jurisdiction, like the one here, requires the court to determine
whether the plaintiff has sufficiently alleged a basis of subject
matter jurisdiction, accepting the allegations as true. Lawrence
v. Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990).
Here, the United States argues that because it is immune from
suit as a sovereign entity unless it consents to be sued, Lee
County Clerk’s failure to plead a waiver of sovereign immunity
means the Court lacks subject matter jurisdiction over the claim.
(Doc. #25, p. 4.) The Court agrees. “Sovereign immunity precludes
subject matter jurisdiction in Florida and federal courts, and a
party suing the United States or an officer of the United States
(or any other sovereign) must allege—in the complaint—the
applicable waiver of sovereign immunity.” Soderberg v. Internal
Revenue Serv., 2017 WL 7788355, *2 (M.D. Fla. June 2, 2017)
(citation omitted). “A failure to plead the statutory waiver of
sovereign immunity results in a failure to invoke the court’s
subject matter jurisdiction.” Id. (citation omitted).
As the Third-Party Complaint fails to plead any basis for a
waiver of sovereign immunity, Lee County Clerk has failed to invoke
the Court’s subject matter jurisdiction and the Third-Party
Complaint must be dismissed. See id. Because “[a] dismissal for
lack of subject matter jurisdiction is not a judgment on the merits
and is entered without prejudice,” Stalley ex rel. U.S. v. Orlando
Reg’l Healthcare Sys., Inc., 524 F.3d 1229, 1233 (11th Cir. 2008),
the Third-Party Complaint will be dismissed without prejudice.
Accordingly, it is now
ORDERED:
Third-party defendant’s Motion to Dismiss for Lack of Subject
Matter Jurisdiction and Failure to State a Claim (Doc. #25) is
GRANTED. The Third-Party Complaint is dismissed without prejudice
to filing an Amended Third-Party Complaint within FOURTEEN (14)
DAYS of this Opinion and Order.
DONE AND ORDERED at Fort Myers, Florida, this 26th day of
August, 2020.
J E. STEELE
5 IOR UNITED STATES DISTRICT JUDGE
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