Rivera et al v. Fair Haven Community Health Clinic Inc et al

Filing 26

RULING granting 12 Motion to Dismiss; granting 15 Motion to Dismiss for Lack of Jurisdiction. Therefore, Hospital of Saint Raphael's Apportionment Complaint (doc. no. [1-1]) against Fair Haven Community Health Clinic, Inc. and the United States is dismissed. Signed by Judge Janet C. Hall on 12/3/2014. (Lewis, D)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
CARMEN RIVERA,
Plaintiff,
v.
HOSPITAL OF SAINT RAPHAEL,
Defendant/Apportionment
Plaintiff,
v.
UNITED STATES OF AMERICA,
Apportionment Defendant.

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CIVIL CASE NO.
3:14-CV-874 (JCH)

DECEMBER 3, 2014

RULING RE: PLAINTIFF’S MOTION TO DISMISS THE APPORTIONMENT
COMPLAINT (Doc. No. 15) and APPORTIONMENT DEFENDANT’S MOTION TO
DISMISS THE APPORTIONMENT COMPLAINT (Doc. No. 12)
I.

INTRODUCTION
Apportionment defendant United States of America (the “government”) and

plaintiff Carmen Rivera filed separate Motions to Dismiss the Apportionment Complaint
(Doc. Nos. 12 and 15, respectively), arguing that this court lacks jurisdiction either
because sovereign immunity bars apportionment actions against the government or,
alternatively, because of the doctrine of derivative jurisdiction. Plaintiff Hospital of Saint
Raphael (“HSR”) asserts that this court has jurisdiction over the case and that Congress
waived sovereign immunity with the Federal Tort Claims Act (the “FTCA”) with respect
to apportionment actions.
For the reasons that follow, the government’s and Rivera’s Motions to Dismiss
are granted.

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II.

BACKGROUND
Carmen Rivera filed an Amended Complaint in state court against Fair Haven

Community Health Clinic, Inc., (the “CHC”) and HSR on November 4, 2013. See
Apportionment Def. Mem., Ex. A (Doc. No. 12-2) (showing the state court docket). In
the Amended Complaint, she alleges that HSR, while treating her between 2009 and
2013, failed to timely diagnose and treat her endometrial cancer. See Notice of
Removal, Ex. A, Amended Complaint, First Count, ¶¶ 1–4, (Doc. No. 1-1).
On January 27, 2014, Rivera withdrew her claims against the CHC. See
Apportionment Def. Mem., Ex. A. HSR then filed an Apportionment Complaint against
the CHC and the United States in state court. Notice of Removal, Apportionment
Compl. (Doc. No. 1-1). The government then certified that the CHC was a health care
provider under the Federally Supported Health Care Centers Assistance Act and
removed the case to this court. Notice of Removal (Doc. No. 1); see 42 U.S.C. § 233(c)
(describing the scope-of-employment determination necessary for removal in certain
cases against the United States); 28 U.S.C. § 1442(a)(1) (allowing the government to
remove civil actions commenced in state court).
III.

STANDARD OF REVIEW
Under Rule 12(b)(1) of the Federal Rules of Civil Procedure, the court dismisses

a complaint for lack of subject matter jurisdiction when it lacks constitutional authority to
adjudicate the suit. Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). In
assessing a motion to dismiss for lack of subject matter jurisdiction, the court “accept[s]
as true all material factual allegations in the complaint.” Shipping Fin. Serv. Corp. v.
Drakos, 140 F.3d 129, 131 (2d Cir. 1998) (citing Scheuer v. Rhodes, 416 U.S. 232, 236

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(1974)). However, the court refrains from “drawing from the pleadings inferences
favorable to the party asserting [jurisdiction].” Id. (citing Norton v. Larney, 266 U.S. 511,
515 (1925)). On a motion to dismiss pursuant to Rule 12(b)(1), the plaintiff must
establish by a preponderance of the evidence that the court has subject matter
jurisdiction over the complaint. Makarova, 201 F.3d at 113; see also Malik v. Meissner,
82 F.3d 560, 562 (2d Cir. 1996); In re Joint E. & So. Dist. Asbestos Litig., 14 F.3d 726,
730 (2d Cir. 1993). Courts evaluating Rule 12(b)(1) motions “may resolve the disputed
jurisdictional fact issues by reference to evidence outside the pleadings, such as
affidavits.” Zappia Middle East Constr. Co. Ltd. v. Emirate of Abu Dhabi, 215 F.3d 247,
253 (2d Cir. 2000).
IV.

DISCUSSION
The government and Rivera make two arguments in support of their Motions to

Dismiss. First, they argue that sovereign immunity bars apportionment actions against
the government. Second, they argue that the doctrine of derivative jurisdiction bars the
court from hearing this action. Because the court concludes that the derivative
jurisdiction doctrine applies in this case, it need not decide the sovereign immunity
issue.
A.

Derivative Jurisdiction

“[W]here a state lacks jurisdiction of the subject matter or of the parties, the
federal District Court acquires none on a removal of the case. That is true even where
the federal court would have jurisdiction if the suit were brought there.” Freeman v. Bee
Mach. Co., 319 U.S. 448, 449 (1943) (internal citations omitted); see also Lambert Run
Coal Co. v. Baltimore & O.R. Co., 258 U.S. 377, 382 (1922) (“The jurisdiction of the

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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.”).
In 1985, Congress eliminated the derivative jurisdiction doctrine for the general
removal statute. See Judicial Improvements Act of 1985, Pub. L. 99-336 § 3, 100 Stat.
633 (the “1985 amendment”). The general removal statute, section 1441, allows
removal for any civil action “brought in a State court of which the district courts of the
United States have original jurisdiction.” 28 U.S.C. § 1441(a). The 1985 amendment
inserted the following subsection into section 1441: “The court to which such civil action
is removed is not precluded from hearing and determining any claim in such civil action
because the State court from which such civil action is removed did not have jurisdiction
over that claim.”
However, the government removed this case under section 1442(a)(1), not
section 1441.1 For some time, it was unclear whether the 1985 amendment eliminated
the derivative jurisdiction doctrine for all removals. See Lopez v. Sentrillion, 749 F.3d
347, 350 & n.10 (5th Cir. 2014) (“Following this amendment, courts disagreed about
whether Congress intended the abrogation of the derivative jurisdiction doctrine to
extend to removals under other provisions, such as 28 U.S.C. § 1442.”). Indeed, at

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Section 1442(a)(1) states that:

A civil action . . . that is commenced in a State court and that is against or directed to any
of the following may be removed by them to the district court of the United States for the
district and division embracing the place wherein it is pending:
(1) The United States or any agency thereof or any officer (or any person acting under
that officer) of the United States or of any agency thereof, in an official or individual
capacity, for or relating to any act under color of such office or on account of any right,
title or authority claimed under any Act of Congress for the apprehension or punishment
of criminals or the collection of the revenue.

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least one court of appeals held that “the policy of Congress underlying [the 1985
amendment’s new subsection] supports the complete abandonment of the derivativejurisdiction theory, even though the words of the statute clearly do not reach this far.”
North Dakota v. Fredericks, 940 F.2d 333, 337 (8th Cir. 1991).2 Others, however,
limited the legislative elimination of the derivative jurisdiction doctrine to removals under
section 1441. See Edwards v. U.S. Dep't of Justice, 43 F.3d 312, 316 (7th Cir. 1994)
(applying derivative jurisdiction to a section 1442 removal after the 1985 amendment);
In re Elko Cnty. Grand Jury, 109 F.3d 554, 555 (9th Cir. 1997) (same); see also
Moreland v. Van Buren GMC, 93 F. Supp. 2d 346, 354 (E.D.N.Y. 1999) (noting that “the
weight of authority holds that the derivative jurisdiction doctrine remains applicable to
removals under Section 1442(a)(1)” and citing cases).
The court need not take a stance on the effect of the 1985 amendment because
Congress expressly limited the abandonment of the derivative jurisdiction doctrine to
section 1441 in a later amendment. See 21st Century Department of Justice
Appropriations Authorization Act, Pub. L. 107-273 § 11020(b)(3)(A), 116 Stat. 1758,
1827 (the “2002 amendment”). As modified by the 2002 amendment, section 1441’s
subsection regarding derivative jurisdiction now reads: “The court to which a civil action
is removed under this section is not precluded from hearing and determining any claim

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One passing statement by the Second Circuit indicates that it may have agreed that the 1985
amendment was a complete abandonment of the derivative jurisdiction doctrine. In Nordlicht v. New York
Tel. Co., the court stated that “Congress has recently abolished the doctrine of derivative jurisdiction for
claims in civil actions filed in a state court after June 19, 1986.” 799 F.2d 859, 863 (2d Cir. 1986), cert.
denied, 479 U.S. 1055, (1987), abrogated in part on other grounds by Metro. Life Ins. Co. v. Taylor, 481
U.S. 58 (1987), as recognized in Marcus v. AT & T Corp., 138 F.3d 46, 55 (2d Cir. 1998). However, the
scope of the 1985 amendment’s effect on derivative jurisdiction was not at issue in the case; the relevant
removal in the case happened before the 1985 amendment came into effect. In any event, this statement
was made before the more recent 2002 amendment.

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in such civil action because the State court from which such civil action is removed did
not have jurisdiction over that claim.” 28 U.S.C. § 1441(f) (emphasis added).
Therefore, the derivative jurisdiction doctrine continues to apply to actions
removed under section 1442. E.g., Rodas v. Seidlin, 656 F.3d 610, 619 (7th Cir. 2011)
(“Given that Congress explicitly abrogated the doctrine of derivative jurisdiction only with
respect to removals under Section 1441, it supports the notion that—for whatever
reasons—Congress intended to keep the doctrine in place with regard to other removal
provisions.”); Palmer v. City Nat. Bank, of W. Virginia, 498 F.3d 236, 246 (4th Cir. 2007)
(“Whatever the intent of the 2002 amendment, its result was that § 1441(f) is more clear
than former § 1441(e) in abrogating derivative jurisdiction only with respect to removals
effectuated under § 1441.”); Lopez, 749 F.3d at 351 (holding that the derivative
jurisdiction doctrine continues to apply to section 1442 removals); see also 14B Charles
Alan Wright & Arthur R. Miller, et al., Federal Practice & Procedure § 3721 (4th ed.)
(“The doctrine . . . continues to apply to cases removed pursuant to other statutes such
as 28 U.S.C.A. § 1442.”).
Notably, only three circuits have directly ruled on the issue, and the Second
Circuit is not one of them. See Lopez, 746 F.3d at 351 & n.15 (“[W]e join both circuits to
have considered the issue since the 2002 amendments . . . .”). However, the Second
Circuit has recognized the existence of the derivative jurisdiction doctrine. See
Nordlicht, 799 F.2d at 863 (“Since a district court's jurisdiction is derivative in a removal
context, a district court must dismiss a complaint if the state court from which the case
was removed lacked jurisdiction. This result obtains even if the reason the state court
lacked jurisdiction is that the complaint lies within the exclusive jurisdiction of the federal

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courts.”); PT United Can Co. v. Crown Cork & Seal Co., 138 F.3d 65, 73 (2d Cir. 1998).
Moreover, both before and after the 2002 amendment, district courts in the Second
Circuit have held that the derivative jurisdiction doctrine applies to removals under
section 1442(a)(1), and they have dismissed apportionment complaints against the
government for lack of jurisdiction based on the doctrine. See, e.g., Kennedy v. Paul,
No. 3:12-CV-01491 (VLB), 2013 WL 5435183, at *3 (D. Conn. Sept. 30, 2013) (“The
state court had no jurisdiction over the claims against the Coast Guard Defendants at
the time of removal, and thus this Court acquired no jurisdiction over those claims when
they were removed to this Court.”); Barnaby v. Quintos, 410 F. Supp. 2d 142, 143
(S.D.N.Y. 2005) (“[T]his Court lacks jurisdiction on removal because it cannot have
jurisdiction where the state court from which the action was removed lacked jurisdiction.
The state court lacked jurisdiction because, under 28 U.S.C. § 1346(b)(1) and 28 U.S.C.
§ 2679(b)(1), the third-party complaint against the Clinic defendants could only be
brought against the United States in the federal district court.”); Gionfriddo v. Salaf, 343
F. Supp. 2d 109, 111 (D. Conn. 2004) (“The Superior Court had no jurisdiction over the
apportionment claim; this lack of jurisdiction was not altered by removal.”); Moreland, 93
F. Supp. 2d at 355 (“In sum, because the state court lacked jurisdiction over the Third–
Party Action, this Court acquired none upon removal.”). Finally, while the Supreme
Court has not ruled on the issue in some time, it has shown no indication that its early
derivative jurisdiction cases are not to be followed. Cf. Arizona v. Manypenny, 451 U.S.
232, 242 n.17 (1981) (“It is well settled that if the state court lacks jurisdiction over the
subject matter or the parties, the federal court acquires none upon removal, even
though the federal court would have had jurisdiction if the suit had originated there.”).

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Here, the only remedy available against the CHC and the United States is under
section 2679(b)(1) of title 28 of the United States Code. This section states that any
remedy against the United States provided by sections 1346(b) and 2672 of title 28 “for
injury or loss of property 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.”
28 U.S.C. § 2679. “[T]he district courts . . . shall have exclusive jurisdiction of civil
actions on claims against the United States . . . .” Id. § 1346(b)(1). Because section
1346(b)(1) clearly gives federal district courts the sole jurisdiction over claims under the
FTCA, the state court in this case had no jurisdiction over HSR’s Apportionment
Complaint. Therefore, under the derivative jurisdiction doctrine, this court has no
jurisdiction over HSR’s claim for apportionment against the United States.
The court acknowledges that there are legitimate criticisms of the derivative
jurisdiction doctrine. See, e.g., Washington v. Am. League of Prof'l Baseball Clubs, 460
F.2d 654, 658–59 (9th Cir. 1972) (“One would have thought that the purpose of removal
in such a case is to get the case out of the court that lacks jurisdiction to hear it and into
the court that has jurisdiction, and to keep it in the latter court, so that it can be tried and
a valid judgment can be entered.”). Indeed, even courts recently recognizing the
doctrine have acknowledged its flaws. See Rodas, 656 F.3d at 618–19 (describing
criticism of the doctrine).3 Nonetheless, this court’s role is not to question the judgment
of Congress or the Supreme Court judgment; it is to apply the law.

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The Seventh Circuit did not ultimately apply the doctrine in Rodas, holding that it was subject to
the principles of Grubbs v. Gen. Elec. Credit Corp., 405 U.S. 699 (1972) and Caterpillar Inc. v. Lewis, 519
U.S. 61 (1996). 656 F.3d at 619–625. However, the principles set out in Grubbs and Catepillar relate

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V.

CONCLUSION
For the foregoing reasons, the court GRANTS Rivera’s Motion to Dismiss the

Apportionment Complaint (Doc. No. 15) and the United States’ Motion to Dismiss the
Apportionment Complaint (Doc. No. 12).
Therefore, Hospital of Saint Raphael’s Apportionment Complaint (Doc. No. 1-1)
against the Fair Haven Community Health Clinic, Inc. and the United States is
dismissed.
SO ORDERED.
Dated at New Haven, Connecticut, this 3rd day of December, 2014.

/s/ Janet C. Hall
Janet C. Hall
United States District Judge

only to cases in which jurisdictional or procedural defects from removal are raised on appeal after a
judgment. See id. (discussing and applying the holdings in Grubbs and Caterpillar).

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