Summary
noting that the Westfall Act and 28 U.S.C. § 1442 each provide a separate right to removal
Summary of this case from De Masi v. SchumerOpinion
99 Civ. 12427 (SWK)
January 29, 2001
MEMORANDUM OPINION AND ORDER
The United States moves, pursuant to Federal Rule of Civil Procedure 12(b)(1), to dismiss the third-party complaint in the above-captioned matter for lack of subject matter jurisdiction. For the reasons set forth below, the motion is granted.
BACKGROUND
On September 11, 1997, a car driven by Mohammed Mir Inam ("Mir Inam") collided with a United States Postal Service ("Postal Service") vehicle driven by Alvin R. Robinson, Jr. ("Robinson"), allegedly injuring Mir Inam's passenger, Dion Charles ("Charles"). See Memorandum of Law in Support of the Third-Party Defendant's Motion to Dismiss the Third-Party Complaint at 2. On August 27, 1999, Charles filed a negligence action against Mir Inam in New York State Supreme Court. See id. On November 10, 1999, Mir Inam filed a third party action against the Postal Service and Robinson alleging that the third-party defendants were liable for Charles' injuries, thus entitling Mir Inam to indemnification. See id. at 3. On December 28, 1999, the United States of America (the "United States") removed the entire action to this Court pursuant to 28 U.S.C. § 1442(a)(1) and on October 18, 2000, the United States brought the instant motion.
DISCUSSION
Rule 12(b)(1) of the Federal Rules of Civil Procedure provides for the dismissal of a complaint when the federal court "lacks jurisdiction over the subject matter." See Fed.R.Civ.Proc. 12(b)(1). Federal district courts are courts of limited jurisdiction; their judicial power extends only so far as authorized by the Constitution and the laws of Congress.See Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986). Furthermore, the party asserting jurisdiction bears the burden of proving that the case is properly before the court. In re Joint Eastern Southern Dist. Asbestos Litig., 14 F.3d 726, 730 (2d Cir. 1993)
The United States is subject to suit for the torts of its employees only as specified by 28 U.S.C. § 1346(b) and 2671-2680. See Mundo Developers, Ltd. v. Wicklow Associates, 585 F. Supp. 1324, 1326 (S.D.N.Y. 1984). Under those provisions, the district courts have "exclusive jurisdiction of civil actions on claims against the United States, for money damages, . . . for the injury or loss of property, . . . caused by the negligence or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment." Id.; 28 U.S.C. § 1346(b). Accordingly, the state court in which Mir Inam filed the third-party complaint had no jurisdiction to hear claims against the United States. Where a state court lacks jurisdiction over an action — as in this case — a federal court acquires none upon removal. See Moreland v. Van Buren GMC, 93 F. Supp.2d 346, 353 (E.D.N.Y. 1999) (internal citations omitted);Smith v. Cromer, 159 F.3d 875, 879 (4th Cir. 1998) ("It is clear that a federal court's jurisdiction upon removal under 28 U.S.C. § 1442(a)(1) is derivative of the state court's jurisdiction, and where the state court lacks jurisdiction over the subject matter or the parties, the federal court acquires none upon removal, even though in a like suit originally brought in federal court, the court would have had jurisdiction."). This Court therefore has no subject matter jurisdiction over the claims in the third-party complaint.
Mir Inam does not dispute the foregoing and "recognize[s] that this Court can follow the case law." Certification at 2. Mir Inam argues, however, that if his complaint is dismissed it will "undermine the legislative scheme." Id. The "legislative scheme" that Mir Inam refers to is Title 28 § 2679(d), commonly know as the Westfall Act, which authorizes "any employee of the [federal] Government" to remove any "civil action or proceeding for money damages" brought against him in a state court for injury to person or property resulting from his negligent or wrongful conduct, upon a finding, either administrative or judicial, that he was "acting within the scope of his office or employment at the time of the incident out of which the claim arose." 28 U.S.C. § 2679(d); Jamison v. Wiley, 14 F.3d 222, 237 (4th Cir. 1994). Mir Inam contends that "if every action incorrectly started against a federal employee and removed to federal court were to be dismissed on the grounds of lack of subject matter jurisdiction, there would be no need for [§ 2679(d)] to provide for the continuation of the action." Certification at 2.
Mir Inam's argument is meritless because Sections 1442(a)(1) and 2679(d) are two "separate and alternative statutes, both of which authorize removal of cases to federal court." Jamison v. Wiley, 14 F.3d 222, 237 (4th Cir. 1994); Mitchell v. Carlson, 896 F.2d 131-132 n. 3 (5th Cir. 1990) (recognizing that 1442(a)(1) provides a federal officer named as defendant in a state tort action with a right of removal "separate and apart from" that provided by the removal provision in the Westfall Act). Moreover, there is "no evidence that the removal provision in the Westfall Act was intended to repeal by implication the availability of the federal officer removal statute in cases where the officer is being sued under state tort law." Jamsion v. Wiley, 14 F.3d 222, 238 n. 16 (1994). To the contrary, the Westfall Act's removal provision seems to have been intended to "complement the more general provision, by relieving an officer who can obtain certification from the obligation to show that he has a colorable federal defense in order to obtain removal."Id.
For the reasons set forth above, Mir Inam has failed to meet the burden of proving that the instant case is properly before this Court. Accordingly, Mir Inam's claims against the United States are dismissed for want of jurisdiction under Rule 12(b)(1).
CONCLUSION
For the reasons set forth above, the defendant's motion is granted and the third-party claim is dismissed pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction.
SO ORDERED.