Frangis v. United States of America
Filing
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OPINION AND ORDER: Court GRANTS 8 Motion to Dismiss for lack of jurisdiction. Final Judgment is entered in favor of defendant United States of America, and against plaintiff Daniel L Frangis, who shall take nothing by way of his complaint. Signed by Senior Judge James T Moody on 2/8/2012. cc: Frangis (tc)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
DANIEL J. FRANGIS,
Plaintiff,
v.
UNITED STATES OF AMERICA,
Defendant.
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No. 2:11 CV 215
OPINION and ORDER
On June 1, 2011, plaintiff Daniel J. Frangis filed a pro se law suit in the Small
Claims Division of the Lake Superior Court in Crown Point, Indiana, against the United
States Post Office and Elizabeth Gamble, the manager of the Merrillville, Indiana, post
office. (DE # 1.) The United States was later substituted as the sole defendant in this
case in place of the United States Post Office and Gamble. (DE # 3.)1 In his complaint,
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The Federal Tort Claims Act provides that a suit against the United
States shall be the exclusive remedy for persons with claims for damages against federal
agencies allegedly resulting from the actions of federal employees taken within the scope
of their office or employment. 28 U.S.C. § 2679(b)(1). Under 28 U.S.C. § 2679(d)(2), “[u]pon
certification by the Attorney General that the defendant employee was acting within the
scope of his office or employment at the time of the incident out of which the claim arose,
any civil action or proceeding commenced upon such claim . . . shall be deemed to be an
action or proceeding brought against the United States . . . and the United States shall be
substituted as the party defendant.” Pursuant to 28 C.F.R § 15.4, the United States Attorney
for the district where the civil action is brought is authorized to make the statutory
certification that the federal employee was acting within the scope of her employment at
the time of the incident. David Capp, United States Attorney for the Northern District of
Indiana, has certified that at the time of the conduct alleged Elizabeth Gamble was acting
within the scope of her employment. (DE # 3-1 at 2.) Accordingly, the United States has
been substituted as the sole defendant in this case in place of defendants United States
Postal Service and Elizabeth Gamble.
plaintiff alleged that he fell on ice that defendant failed to properly clear from the
entryway to the Merrillville post office, which resulted in injuries, lost wages, and
medical expenses. (Id.)
Defendant removed the case to this federal district court pursuant to 28 U.S.C.
§ 1442(a)(1), which provides that a civil action commenced in a state court against “[t]he
United States or any agency thereof or any officer” may be removed by the defendant
“to the district court of the United States for the district and division embracing the
place wherein it is pending.” (DE # 2.) Defendant has now moved to dismiss this case
for lack of jurisdiction, arguing that because the state court in which plaintiff originally
filed lacked jurisdiction over plaintiff’s claim, this court also lacks jurisdiction. (DE # 8.)
In response, plaintiff filed a pro se letter addressed to the undersigned, in which plaintiff
states that he only filed his case in state court because “a federal lawyer” advised him to
do so. (DE # 11.)
Defendant’s argument has two parts. First, defendant argues that federal courts
have exclusive jurisdiction over claims like plaintiff’s. Defendant is correct. Pursuant to
the Federal Tort Claims Act, United States District Courts “have exclusive jurisdiction
of civil actions on claims against the United States for money damages . . . for injury or
loss of property, or personal injury or death caused by the negligent or wrongful act or
omission” of the United States and its agencies and employees. 28 U.S.C. § 1346(b)(1);
see 28 U.S.C. § 2679. Thus, only a federal district court, not the state court in which
plaintiff first filed this lawsuit, may possess proper jurisdiction over plaintiff’s claim.
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Second, defendant argues that, upon removal, this court only acquired the
jurisdiction possessed by the court of origination – in this case, no jurisdiction at all.
Defendant is again correct. The United States Supreme Court has held 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.” Arizona v. Manypenny, 451 U.S. 232, 243 n.17 (1981); see also
Edwards v. U.S. Dep’t of Justice, 43 F.3d 312, 316 (7th Cir. 1994); Reid v. United States, 715
F.2d 1148, 1153 (7th Cir. 1983). In other words, because the state court in which this case
originated never had jurisdiction over plaintiff’s claim to begin with, this court, which
acquired this case through removal, also lacks jurisdiction. The fact that defendant was
advised by an attorney to file in federal court does not change the fact that this court
lacks jurisdiction to hear plaintiff’s claim.
In sum, defendant’s arguments are sound and warrant dismissal. Defendant’s
motion to dismiss for lack of jurisdiction (DE # 8) is GRANTED. There being no claims
remaining against any defendants in this case, the clerk is directed to ENTER FINAL
JUDGMENT as follows:
Judgment is entered in favor of defendant United States of
America, and against plaintiff Daniel L. Frangis, who shall take
nothing by way of his complaint.
SO ORDERED.
Date: February 8, 2012
s/James T. Moody________________
JUDGE JAMES T. MOODY
UNITED STATES DISTRICT COURT
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