Gonzalez v. Mills

Filing 8

ORDER granting Defendant's 6 Motion to Dismiss; the Clerk shall terminate this case. Signed by Judge Neil V Wake on 4/11/11.(REW)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Joseph Gonzalez,
Plaintiff,

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vs.

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Kristine Mills,
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Defendant.
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No. CV-11-08020-PCT-NVW
ORDER

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Before the Court is Defendant Kristine Mills’ Motion to Dismiss. (Doc. 6.)

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Plaintiff has not responded, and the time to do so has elapsed. Although LRCiv 7.2(i)

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permits the Court to deem failure to respond to a motion as consent and to dispose of the

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motion summarily, the Court decides the Motion to Dismiss on the merits.

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This case arises out of a dispute between two employees of the Veterans

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Administration Prescott Medical Center. Plaintiff filed an action against Defendant in

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Prescott Justice Court on January 31, 2011, seeking an injunction against harassment.

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Defendant removed the action to this Court pursuant to 28 U.S.C. § 1442(a)(1), which

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allows removal of any action filed in state court against “[a]ny officer (or any person

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acting under that officer) of the United States or of any agency thereof, . . . for any act

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under color of such office.” Removal is appropriate if the Defendant’s conduct arose

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within the scope of his federal duties, and he raises a colorable federal defense. Mesa v.

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California, 489 U.S. 121, 139 (1989). Defendant’s alleged conduct occurred in the

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course of her employment, and she asserts a federal defense under 28 U.S.C. § 2679(b),

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the doctrine of sovereign immunity, and the federal workplace remedial scheme, see Saul

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v. United States, 928 F.2d 829 (9th Cir. 1991). Therefore, removal under 28 U.S.C.

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§ 1442(a)(1) is proper.

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Because jurisdiction under § 1442(a)(1) is derivative, the Court may not exercise

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jurisdiction over the removed action unless the state court initially had jurisdiction, even

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if the action could have originally been filed in federal court. In re Elko County Grand

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Jury, 109 F.3d 554, 555 (9th Cir. 1997). Plaintiff sought an injunction in state court

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against a federal employee for harassment, a common law tort. An action under the

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Federal Tort Claims Act, 28 U.S.C. § 1346(b), provides the exclusive remedy for non-

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constitutional torts based on negligent or wrongful act or omission of any employee of the

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government while acting within the scope of her office or employment. 28 U.S.C.

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§ 2679(b)(1). Therefore, the state court action was preempted by federal law. Because

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the state court lacked jurisdiction, this Court lacks derivative jurisdiction under 28 U.S.C.

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§ 1442(a)(1), and the case must be dismissed for lack of subject matter jurisdiction.

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IT IS THEREFORE ORDERED that Defendant’s Motion to Dismiss (Doc. 6) is
granted. The Clerk shall terminate this case.
DATED this 11th day of April, 2011.

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