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Gateway Five, LLC v. Estate of Price

November 30, 2007


The opinion of the court was delivered by: Phillips


This matter is before the court on plaintiff's motion to remand [Doc. 9]. Plaintiff Gateway Five, LLC moves this court to remand the instant matter to state court due to a lack of subject-matter jurisdiction in this court. Defendant United States of America responded [Doc. 22], and plaintiff replied [Doc. 27]. For the reasons that follow, plaintiff's motion is denied.


Plaintiff Gateway Five, LLC ("Gateway") initiated this suit in the Chancery Court for Hamblen County, Tennessee, seeking to quiet title to real estate to which it claims ownership. Plaintiff claims that since 1999, equitable ownership of the subject real estate was held for the benefit of Gateway by Miller S. Price, the decedent. Price was the Chief Manager and a member of Gateway, and purportedly purchased the property for Gateway's benefit. When Price suddenly and unexpectedly passed away in January 2004, probate of the decedent's estate revealed that the subject real estate was still titled in Price's individual name. Plaintiff Gateway asserts, however, that it is the equitable owner of the subject property and brought this suit to quiet title thereto.

Among the many defendants, all creditors of the subject piece of property, is the United States of America, Department of the Treasury and Internal Revenue Service ("IRS"). The United States asserts that it has a tax lien on the property and holds a security interest in the subject property for unpaid federal taxes. The United States contends that were the subject property to be titled in Gateway's name, the security interest of the IRS would be extinguished. The United States therefore vigorously disputes ownership of the property by Gateway.

On October 4, 2007, the United States removed the matter to this court, premising removal jurisdiction on 28 U.S.C. § 1441*fn1 and § 1442(a)(1). On October 22, 2007, plaintiff Gateway filed its motion to remand, claiming that the United States had failed to meet its burden of establishing that this court would have original jurisdiction and that the United States could not use the IRS's status as a revenue collecting agency to invoke § 1442(a)(1). In its response brief, the United States invoked, for the first time, 28 U.S.C. § 1444 and, by reference, 28 U.S.C. § 2410. In its reply brief, Gateway Five both disputed the invocation of this section, claiming that the United States cannot use its response brief to amend its notice of removal, as well as disputed the substantive application thereof.


A. Introduction of 28 U.S.C. § 1444 in Defendant's Response Brief

This court will first address defendant United States's invocation of 28 U.S.C. § 1444 for the first time in its response brief and whether this is a valid amendment of its notice of removal. Plaintiff Gateway contends that the United States cannot uses its response brief as a mechanism for amending its notice of removal; therefore, the United States's failure to invoke this basis for removal serves to waive its applicability.

The issue, however, involves the subject-matter jurisdiction of this court. As the Supreme Court has held, "subject matter jurisdiction, because it involves the court's power to hear a case, can never be forfeited or waived." United States v. Cotton, 535 U.S. 625, 630 (2002); accord Arbaugh v. Y & H Corp., 546 U.S. 500, 514 (2006). Indeed, "courts, including [the Supreme] Court, have an independent obligation to determine whether subject-matter jurisdiction exists, even in the absence of a challenge from any party." Arbaugh, 546 U.S. at 514. The United States's failure to raise this basis of jurisdiction in its notice of removal will therefore not serve to waive the applicability of § 1444 if indeed it is applicable to the present case.*fn2 The court will now address whether 28 U.S.C. § 1444 and, by reference, 28 U.S.C. § 2410, apply to this case.

B. Applicability of 28 U.S.C. § 1444

Section 1444 of Chapter 28 of the Untied States Code provides, "Any action brought under section 2410 of this title against the United States in any State court may be removed by the United States to the district court of the United States for the district and division in which the action is pending."*fn3 Section 2410 in turn abrogates the United States's sovereign immunity, providing,

(a) Under the conditions prescribed in this section and section 1444 of this title for the protection of the United States, the United States may be named a party in any civil action or suit in any district court, or in ...

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