Summary
rejecting the argument that the case should not be dismissed because "the removal could have been pursuant to 28 U.S.C. § 1441," since "the fact is that the removal was under 28 U.S.C. § 1442"
Summary of this case from Graber v. AstrueOpinion
No. 03 Civ. 4979 (JFK).
November 16, 2004
Andrew W. Siegel, Esq., Geller Siegel LLP, New York, New York, for Plaintiffs.
Elrac, Inc. and Mattie Lee Shepheard:, Vincent J. Savino, Esq., Brand Brand, Garden City, New York, for Third-Party Plaintiffs.
David N. Kelley, United States Attorney for the Southern District of New York, New York, New York, Of Counsel: Jeannette A. Vargas Assistant United States Attorney, for Third-Party Defendants.
OPINION and ORDER
Background
Plaintiffs initially sued the Navy, Jamal Gibson, Elrac, Inc. ("Elrac") and Mattie Lee Shepheard ("Shepheard") in the State Supreme Court of New York, Bronx County, on March 14, 2002. Plaintiffs alleged that the defendants were liable for injuries to plaintiffs sustained in a three-car accident at the intersection of Bronx River Road and 174th Street in the Bronx on April 21, 2001.
The Singleton action against the Navy and Gibson (Federal Defendants) was discontinued via stipulation on November 12, 2002. Elrac and Shepheard, the remaining defendants, then brought a third-party action against the Navy and Gibson, requesting that these third-party defendants indemnify and hold the third-party plaintiffs harmless, in whole or in part, for any judgment against the third-party plaintiffs, by reason of the degree of wrong committed against them.
On July 2, 2003, the Federal Defendants removed the entire action to the Southern District of New York pursuant to 28 U.S.C. § 1442(a)(1). The Federal Defendants now move to dismiss the third-party complaint, pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction.
Plaintiffs brought a separate action against the United States and the Federal Defendants (04 Civ. 717) which was dismissed on May 21, 2004 by stipulation.
Discussion
In moving to dismiss this third-party complaint, the Federal Defendants rely upon the doctrine of derivative jurisdiction as first articulated in Lambert Run Coal Co. v. Baltimore O.R. Co., 258 U.S. 377, 382 (1922), where the Supreme Court held:
[t]he jurisdiction of the federal court on removal is, in a limited sense, a derivative jurisdiction. If the state court lacks jurisdiction of the subject-matter or of the parties, the federal court acquires none, although it might in a like suit originally brought there have had jurisdiction.
As various circuits have ruled:
[i]t is clear that a federal court's jurisdiction upon removal under 28 U.S.C. § 1442(a)(1) is derivative of the state court 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.Smith v. Cromer, 159 F.3d 875, 879 (4th Cir. 1998); see also Elko County Grand Jury v. Siminoe, 109 F.3d 554, 555 (9th Cir. 1997) ("[B]ecause this case was removed from state court pursuant to § 1442, our jurisdiction is derivative of the state court's jurisdiction."); Edwards v. United States Dep't of Justice, 43 F.3d 312, 315 (7th Cir. 1994) ("When a case is removed from a state court pursuant to 28 U.S.C. § 1442, the district court's basis for jurisdiction is only derivative of that of the state court.").
Although third-party plaintiffs argue that the removal could have been pursuant to 28 U.S.C. § 1441, the fact is that the removal was under 28 U.S.C. § 1442(a)(1).
In deciding whether there is derivative jurisdiction over the third-party complaint, it must first be determined whether the state court had jurisdiction over the third-party complaint against the Navy, a federal agency, and Gibson, a Navy officer. There is no dispute that Gibson was acting within the scope of his duties at the time of the collision.
Claims against the United States are barred unless sovereign immunity has been "unequivocally" waived by a federal statute.See United States v. Mitchell, 445 U.S. 535, 538 (1980). "Because an action against a federal agency or federal officers in their official capacities is essentially a suit against the United States, such suits are also barred under the doctrine of sovereign immunity, unless such immunity is waived." Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 510 (2d Cir. 1994) (citing cases).
Because of the Federal Torts Claim Act ("FTCA"), 28 U.S.C. § 2671 et seq., the United States waived sovereign immunity regarding certain common law tort claims, if such suits are brought against the United States directly. The FTCA's limited waiver of immunity does not, however, extend to suits brought against federal agencies such as the Navy. See 28 U.S.C. § 2679(a); FDIC v. Meyer, 510 U.S. 471, 476 (1994) ("[I]f a suit is cognizable under § 1346(b) of the FTCA, the FTCA remedy is exclusive and the federal agency cannot be sued in its own name.") (internal quotation marks omitted); Myers Myers, Inc. v. United States Postal Service, 527 F.2d 1252, 1256 (2d Cir. 1975) ("Neither the Postal Service nor the Postal Inspection Service, named as defendants, may be sued directly on claims brought under 28 U.S.C. § 1346(b).");Saar v. United States Dep't of Justice, 705 F. Supp. 999, 1003 (S.D.N.Y. 1989) ("Under the FTCA, sovereign immunity is only waived where the United States is named as a party."). Neither New York State Supreme Court nor this Court possesses jurisdiction over tort claims brought against the Navy.
The New York court also lacked jurisdiction over the third-party plaintiffs' suit against Gibson. Gibson was acting within the scope of his employment with the Navy at the time of the accident in question. See Certification of James B. Comey, then United States Attorney for the Southern District of New York, attached as Ex. E to Vargas Decl.; Compl. ¶ 27. The FTCA explicitly precludes any tort action against a federal employee in such circumstances:
The remedy against the United States provided by sections 1346(b) and 2672 of this title [28] for injury or loss of property, or personal injury or death arising or resulting from the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment is exclusive of any other civil action or proceeding for money damages by reason of the same subject matter against the employee whose act or omission gave rise to the claim. . . . Any other civil action or proceeding for money damages arising out of or relating to the same subject matter against the employee or the employee's estate is precluded. . . . 28 U.S.C. § 2679(b)(1). As Gibson enjoys "immunity against claims of common-law tort," Rivera v. United States, 928 F.2d 592, 608 (2d Cir. 1991), the New York state court did not have jurisdiction over this action.
The United States and its agencies cannot be impleaded as third-party defendants in state court tort actions. Keene Corp v. United States, 700 F.2d 836, 843 n. 10 (2d Cir. 1983) (under 28 U.S.C. § 1346(b), a defendant could not implead the United States in a state court action); Harris v. G.C. Servs. Corp., 651 F. Supp. 1417, 1418 (S.D.N.Y. 1987).
The New York State Supreme Court had no jurisdiction over the third-party complaint against the Federal Defendants here.
Third-party plaintiffs, Elrac, argue that the Judicial Improvement Act of 1985 which did eliminate derivative jurisdiction under 28 U.S.C. § 1441(f) should be applied here where the removal was under 28 U.S.C. § 1442(a). The 1985 act did not amend 1442(a) and the government removed under the latter section as it had a right to do.
District courts in the Second Circuit, two in the Southern District of New York, have properly applied the doctrine of derivative jurisdiction to dismiss third-party complaints against federal agencies in the circumstances presented in this case. InCharles v. Inam, 99 Civ. 12427 (SWK), 2001 WL 79900 (S.D.N.Y. Jan. 30, 2001), the defendant originally filed a third-party complaint in state court against the United States Postal Service and one of its employees for indemnification claiming the Postal Service was liable for plaintiff's injuries sustained in a car accident. See 2001 WL 79900, at *1. After the Postal Service removed the action pursuant to Section 1442(a)(1), the district court held that it lacked subject matter jurisdiction over the claims in the third-party complaint because the state court in which it was first filed had no jurisdiction over any claims against the Postal Service. See id. The court expressly held that: "[w]here a state court lacks jurisdiction over an action — as in this case — a federal court acquires none upon removal." See id.
In Giuffre v. City of New York, 00 Civ. 1517 (MBM), 2000 WL 557324 (S.D.N.Y. May 8, 2000), the United States was impleaded in a slip-and-fall case first filed in state court. See 2000 WL 557324 at *1. The United States moved to dismiss that action, arguing that because the state court lacked jurisdiction, the federal court also lacked jurisdiction, because the federal court's jurisdiction upon removal was derivative of the jurisdiction of the court from which the case was removed. Chief Judge Mukasey held:
Because there is no exception to the derivative jurisdiction doctrine that governs cases removed pursuant to Section 1442, because the state court in which the claim against the government was brought initially lacked jurisdiction to hear it, and because the existence of that claim was the only basis for removal, it follows that this case must be, and is, dismissed.
Likewise, in Moreland v. Van Buren GMC, 93 F. Supp. 2d 346 (S.D.N.Y. 1999), two federal agencies and the United States were impleaded in a negligence action arising from an automobile accident first brought in state court. Id. at 349. The federal third-party defendants removed the entire action pursuant to Section 1442(a)(1). They moved to dismiss the third-party claims for indemnity and contribution, arguing that because the state court lacked jurisdiction under the FTCA, 28 U.S.C. § 1346(b), the federal court also lacked jurisdiction. Moreland, 93 F. Supp. 2d at 349, 353-55. Because "the state court lacked jurisdiction" over the third party complaints and the federal court "acquired none upon removal," the court dismissed the third-party complaints and remanded the remainder of the action to state court. Id. at 355. As Judge Hurley wrote, subsequent to the Judicial Improvements Act of 1985, "the doctrine of derivative jurisdiction remains viable under Section 1442." Id. I agree with Judge Hurley.
This third-party action is dismissed for lack of jurisdiction.
SO ORDERED.