ELY v. U.S. POSTAL SERVICE

Full title: PAUL F. ELY Plaintiff, v. UNITED STATES POSTAL SERVICE Defendant

Court: United States District Court, D. Nevada

Date published: May 6, 2011

3:10-cv-0550-LRH-RAM (D. Nev. May. 6, 2011)

Opinion

3:10-cv-0550-LRH-RAM.

May 6, 2011

ORDER

LARRY HICKS, District Judge

Before the court is defendant the United States Postal Service's ("USPS") motion to dismiss filed on November 4, 2010. Doc. #7.¹ Plaintiff Paul F. Ely ("Ely") filed an opposition (Doc. #15) to which USPS replied (Doc. #16).

1 Refers to the court's docketing number.

I. Facts and Background

II. Discussion

² In re Elko County Grand Jury109 F.3d 554555Id.

2 Section 1442(a)(1) of Title 28 of the United States Code provides that any civil action commenced in state court against an agency of the United States may be removed to federal court in the district where the action is pending. 28 U.S.C. § 1442(a)(1).

Here, the state court lacked jurisdiction over Ely's complaint for breach of contract. A breach of contract claim against an agency of the United States may only be brought in the Court of Federal Claims, or a federal district court if the amount in controversy is less than $10,000. Schulthess v. United States, 694 F.2d 175, 177-78 (9th Cir. 1982) (holding that a district court has concurrent jurisdiction with the Court of Federal Claims for claims against an agency of the United States for less than $10,000). Therefore, USPS argues that the court should dismiss the present action for lack of jurisdiction pursuant to the derivative jurisdiction doctrine because the state court lacked jurisdiction over Ely's complaint. See Doc. #7.

Although USPS is correct that there is no derivative jurisdiction in this action, the court finds that dismissal would be a waste of judicial time and resources because this action is now before a court that can hear the merits of the complaint. See Shulthess, 694 F.2d at 178. Further, the court finds that dismissal of this action pursuant to the derivative jurisdiction doctrine would not have preclusive effect over Ely's ability to re-file his breach of contract claim in this court. Therefore, in light of the circumstances surrounding this matter, the court shall deny USPS's motion to dismiss.

IT IS THEREFORE ORDERED that defendant's motion to dismiss (Doc. #7) is DENIED.

IT IS SO ORDERED.