United States District Court, D. Colorado
ORDER DENYING DEFENDANT M. JULIA HOOK’S MOTION TO DISMISS THIS CASE IN ITS ENTIRETY FOR LACK OF SUBJECT MATTER JURISDICTION (ECF NO. 203)
RAYMOND P. MOORE, UNITED STATES DISTRICT JUDGE
This matter is before the Court on “Defendant M. Julia Hook’s Motion to Dismiss this Case in its Entirety for Lack of Subject-Matter Jurisdiction; Request for Oral Argument” (the “Motion to Dismiss”) (ECF No. 203, emphasis in original), seeking dismissal pursuant to Fed.R.Civ.P. 12(h)(3). Defendant United States filed a Response (ECF No. 205), to which Defendant Hook filed a Reply (ECF No. 209). Upon consideration of the Motion to Dismiss, the Response, the Reply, the Court file, and the applicable rules, statutes and case law, and being otherwise fully advised, the Motion to Dismiss is DENIED.
I. FACTUAL AND PROCEDURAL BACKGROUND
The Court has previously recited the background of this case in other orders, so it will not be repeated here except to the extent necessary to address the issues at hand. The issue of this Court’s subject matter jurisdiction has been previously raised by Defendant Hook (and Defendant Smith), but their arguments were rejected. (ECF Nos. 181, 182.) Because some additional bases have been raised as to the issue of the Court’s subject matter jurisdiction, and this Court must examine its subject matter jurisdiction at every stage of the proceeding, the Court will address the issue again.
II. STANDARD OF REVIEW
Hook’s Motion was filed under Rule 12(h)(3) but the parties fail to address the applicable standard of review for such a motion. Pursuant to Rule 12(h)(3), the district court “shall dismiss the action whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter….If the sufficiency of the jurisdictional allegations is challenged by the court or an opposing party, the burden of proof as to the existence of federal jurisdiction is on the party who claims that jurisdiction exists.” 5 Charles Alan Wright et al., Federal Practice and Procedure § 1214 (3d ed. 2004) (internal quotation marks and emphasis omitted); Marcus v. Kansas Dep’t of Revenue, 170 F.3d 1305, 1309 (10th Cir. 1999). The Court applies the same standard of review as a motion to dismiss under Rule 12(b)(1). See Citizens for Responsible Gov’t State Political Action Comm. v. Davidson, 236 F.3d 1174, 1189 (10th Cir. 2000).
Generally, a motion to dismiss under Fed.R.Civ.P. 12(b)(1) for lack of subject matter may take one of two forms - a facial attack or a factual attack. Stuart v. Colorado Interstate Gas Co., 271 F.3d 1221, 1225 (10th Cir. 2001). In a facial attack, the moving party challenges the complaint’s allegations as to the existence of subject matter jurisdiction. Id. In a factual attack, the moving party goes beyond the allegations in the complaint and challenges the facts on which subject matter jurisdiction is based. Id.
In this case, Hook appears to make a facial attack on Plaintiff LNV’s and the United States’ allegations, and a factual attack as well as to subject matter jurisdiction under 26 U.S.C. § 7403. Hook proceeds pro se, but the Court is not obliged to construe her pleadings liberally as she is an attorney. See Smith v. Plati, 258 F.3d 1167, 1174 (10th Cir. 2001).
A. Subject Matter Jurisdiction
The United States removed this action from the District Court, City and County of Denver, Colorado to this Court pursuant to 28 U.S.C. §§ 1441, 1442, and 1444. In its Response, the United States argues removal was proper under all three sections, and under the jurisdictional grants of various statutes. Hook’s Reply fails to address the application of these sections or statutes, except for her continuing argument that the requirements under 26 U.S.C. § 7403 have not been met. After conducting an analysis, the Court largely agrees with the United States.
1. Removal under § 1444
Pursuant to 28 U.S.C. § 1444, “[a]ny 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.” Under § 2410(a), “the United States may be named a party in any civil action or suit in any district court, or in any State court having jurisdiction over the subject matter . . . to foreclose a mortgage or other lien upon, . . . real . . . property on which the United States has or claims a mortgage or other lien.” In this case, Plaintiff LNV named the United States as a ...