Axson v. Reynolds et al

Filing 42

OPINION AND ORDER: For the reasons set forth in the order, the 17 Motion for Summary Judgment is GRANTED. This case is DISMISSED WITHOUT PREJUDICE for lack of derivative jurisdiction. The remaining pending motion s 22 23 27 29 31 34 and 40 are DENIED AS MOOT. Signed by Judge Rudy Lozano on 2/7/2017. (cc: Axson) (jss)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
CASSANDRA AXSON,

)
)
)
)
) CAUSE NO. 1:16-cv-322
)
)
)
)
)

Plaintiff,
vs.
MICHAEL REYNOLDS and
VIRGIL GONZOLES,
Defendants.

OPINION AND ORDER
This matter is before the Court on the Motion for Summary
Judgment, filed by the United States of America, on October 21,
2016 (DE #17).

For the reasons set forth below, the motion (DE

#17) is GRANTED. This case is DISMISSED WITHOUT PREJUDICE for lack
of derivative jurisdiction.

The remaining pending motions (DE ##

22, 23, 27, 29, 31, 34, and 40), are DENIED AS MOOT.

BACKGROUND
Pro se plaintiff, Cassandra Axson, originally filed this case
in the Allen Superior Court Small Claims Division. On September 1,
2016, Defendants Reynolds and Gonzalez filed a notice of removal
pursuant to 28 U.S.C. § 1442.

(DE #1.)

On October 5, 2016, the

United States filed notices of substitution as to Michael Reynolds
(who was employed by the Social Security Administration (“SSA”)),
and Virgen Gonzalez (whose name is misspelled in the caption, and

who was also employed by the SSA).

Axson alleges that she was

damaged as a result of their negligence during actions taken within
the scope of their employment.

(DE ##12, 13.)

Axson’s claims are difficult to decipher, but they seem to
stem from an interaction with Gonzalez and Reynolds at the Fort
Wayne SSA Field Office regarding the denial of her federal benefits
for a period of time.

Gonzalez was the District Manager of the

Fort Wayne SSA Field Office during July 2012.

Reynolds is now

retired, but was the District Manager of the Fort Wayne SSA Field
Office.

A

search

showed

that

no

final

decision

from

the

Commissioner of the SSA was ever issued to Axson regarding her
benefits, and that Axson has not filed an administrative claim with
the SSA under the Federal Tort Claims Act (“FTCA”). (Gonzalez Dec.
¶ 2; Dell’aglio Dec. ¶ 5.)
On October 21, 2016, the United States filed a motion for
summary judgment, arguing the case should be dismissed for a number
or reasons, including that the Allen Superior Court Small Claims
Division lacked subject matter jurisdiction over any claims for
money damages arising out of the alleged negligence of federal
employees;

therefore,

this

Court

did

not

acquire

derivative

jurisdiction from the state court. (DE ##17, 18.) In accordance
with Timms v. Frank, 953 F.2d 281, 285 (7th Cir. 1992), the United
States properly gave pro se Plaintiff notice of the motion for
summary judgment and cited the rules detailing the requirements for

2

her response.

(DE #19.)

To date, Axson has not filed a response

to the motion for summary judgment.
Axson has, however, filed a whole slew of other motions
including, inter alia, an amended motion to remand (DE #22); an
amended motion for the judge to intervene (DE #23); a motion to
dismiss on the grounds of perjury (DE #27); a motion to prevent the
attorney to argue that a state statute conflicts with a federal
statute (DE #31); and a motion for leave to proceed in forma
pauperis (DE #40).
This Court must first determine if it possesses jurisdiction
over this matter.

If it does not, the Court does not have the

authority to rule on these motions, and the case must be dismissed
without prejudice.

DISCUSSION
This Court must first consider the threshold jurisdiction
issue.

“Jurisdiction of the federal court on removal is, in a

limited sense, a derivative jurisdiction.

Where the state court

lacks jurisdiction of the subject matter or of the parties, the
federal court acquired none, although in a like suit originally
brought in a federal court it would have had jurisdiction.”

Abu-

Humos v. First Merit Bank, No. 15-cv-6961, 2015 WL 7710374, at *1
(N.D. Ill. Nov. 30, 2015) (quoting Minnesota v. United States, 305
U.S. 382, 389 (1939)).
3

Axson’s complaint is difficult to decipher, yet it seems that
she

is

contesting

the

suspension

of

her

SSDI

benefits

and

complaining that the federal SSA employees were negligent and
failed to properly do their jobs.

In her motion to remand, Axson

refers to Indiana Code § 34-13-3-5 in support of the proposition
that she can sue in state court an employee of a governmental
entity if their employee was not acting within the scope of their
employment.

(DE #33.)

Yet section § 34-13-3-5 is a statute under

the Indiana Tort Claims Act, which is applicable only to state
governmental entities of the State of Indiana and its employees.
I.C. § 34-6-2-49; see also Baker v. Schafer, 922 F.Supp. 171 (S.D.
Ind. 1996).
Defendants Reynolds and Gonzalez have been certified under the
FTCA as acting within their scope of employment; therefore, Axson’s
claim of negligence is really against the United States and the
exclusive remedy for tort claims against the United States for
money damages is the FTCA.

Feres v. United States, 340 U.S. 135,

140 (1950); 28 U.S.C. §§ 1346(b), and 2679(a)-(b)(1); see also
Couch v. United States, 694 F.3d 852, 856 (7th Cir. 2012) (stating
“the FTCA is a limited waiver of the Untied States’ sovereign
immunity” and it “is the exclusive remedy for any tort claim
resulting from the negligence of a government employee acting
within the scope of employment”).
However, an FTCA claim must be initiated in federal court.

4

See Alinsky v. United States, 415 F.3d 639, 643 (7th Cir. 2005)
(stating the “FTCA grants federal courts jurisdiction over” damages
claims against the United States for negligence by a government
employee); Midwest Knitting Mills, Inc. v. United States, 950 F.2d
1295, 1297 (7th Cir. 1991); Abu-Humos, 2015 WL 7710374, at *1
(holding “while common law torts are cognizable under the FTCA,
state courts lack jurisdiction over such claims.”).1
Because exclusive jurisdiction under the FTCA was only in
federal court, the Allen Superior Court Small Claims Division
lacked subject matter jurisdiction over any claims for money
damages arising out of the alleged negligence of the federal
employees.

Furthermore, the state court lacked jurisdiction to

hear the claims of negligence, and upon removal, this Court
acquired no derivative jurisdiction from the state court.

See

Rodas v. Seidlin, 656 F.3d 610, 615-16 (7th Cir. 2011); Edwards v.
United States Dep’t of Justice, 43 F.3d 312, 316 (7th Cir. 1994);
Fedorova v. Wells Fargo and Co., No. 16 C 1810, 2016 WL 2937447, at
*2 (N.D. Ill. May 20, 2016); Abu-Humos, 2015 WL 7710274, at *1-2.
Rodas

recognized

a

limited

exception

for

the

derivative

jurisdiction rule for removals under section 1442 where a motion to
dismiss is made after removal, but only where the case has already
been decided on the merits.

Rodas, 656 F.3d at 619-25.

1

Here, the

There also is no indication that Axson complied with the
administrative exhaustion requirements before seeking to bring a FTCA claim.
See Augutis v. United States, 732 F.3d 749, 752 (7th Cir. 2013).

5

case has not been decided on the merits, and dismissal without
prejudice is the proper result. See Abu-Humos, 2015 WL 7710374, at
n.1 (“dismissal is strongly indicated when the issue is raised
before any substantive matters have been addressed.”).
Finally, as this dismissal is without prejudice to Axson
filing

another

complaint

with

a

court

with

proper

original

jurisdiction, Axson is cautioned that any subsequent complaint
should state a valid cause of action against each defendant,
satisfy any exhaustion requirements, comply with Federal Rule of
Civil Procedure Rule 8 in stating a short and plain statement for
relief, and have proper service.

CONCLUSION
For the reasons set forth above, the motion for summary
judgment (DE #17) is GRANTED.

This case is DISMISSED WITHOUT

PREJUDICE for lack of derivative jurisdiction.

The remaining

pending motions (DE ## 22, 23, 27, 29, 31, 34, and 40), are DENIED
AS MOOT.
DATED: February 7, 2017

/s/RUDY LOZANO, Judge
United States District Court

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