THE BRENT ALLEN SWALLERS ESTATE BY EXECUTOR BRENT-ALLEN v. ARVIN

Filing 19

ORDER - Arvin's motion to dismiss Dkt. 3 is DENIED. Swallers's pending motions Dkt. 11 and Dkt. 12 are DENIED AS MOOT. *** SEE ORDER ***. Signed by Judge Sarah Evans Barker on 9/25/2018. Copy Mailed. (CKM)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
THE BRENT ALLEN SWALLERS ESTATE )
BY EXECUTOR BRENT-ALLEN,
)
)
Plaintiff,
)
)
v.
)
)
THOMAS ARVIN,
)
)
Defendant.
)

No. 1:17-cv-04505-SEB-DML

ORDER ON MOTION TO DISMISS FOR LACK OF SUBJECT-MATTER
JURISDICTION AND OTHER MOTIONS
Now before the Court is Defendant Thomas Arvin’s (“Arvin”) motion to dismiss
for lack of subject-matter jurisdiction. Dkt. 3. See Fed. R. Civ. P. 12(b)(1). For the
reasons explained below, the motion is denied.
Arvin “is a Special Deputy United States Marshal, who serves as a Federal Bureau
of Investigation (‘FBI’) Task Force Officer.” Dkt. 1 ¶ 1. In 2016, Arvin executed a search
warrant at the home of Plaintiff pro se Brent Swallers (“Swallers”). (We disregard for the
moment Swallers’s styling himself as the executor of an estate bearing his name. See Dkt.
9.) On November 28, 2017, Swallers filed an action in Wayne Township Small Claims
Court, Marion County, Indiana, alleging that Arvin had unlawfully seized from him
ammunition and ammunition boxes valued at $1,000, and seeking their return as well as
$8,000 damages. Dkt. 1 Ex. 1, at 1. Arvin removed the action to this Court on December
5, 2017, invoking the federal-officer removal statute, 28 U.S.C. 1442(a)(1).

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Arvin’s argument for dismissal proceeds in two steps. First, Arvin argues that “[i]t
is axiomatic that the United States may not be sued without its consent and that the
existence of consent is a prerequisite for jurisdiction.” United States v. Mitchell, 463 U.S.
206, 212 (1983). And Swallers’s complaint furnishes “[no] basis for any waiver of
sovereign immunity that would subject individual employees, agents, or officers of the
United States to a civil suit for the return of property seized [under] a federal warrant and
held by the FBI in state court.” Br. Supp. 2. Therefore, according to Arvin, the state court
lacked jurisdiction over Swallers’s case.
Second, Arvin argues that, under the doctrine of derivative jurisdiction, “‘where
the state court lacks jurisdiction of the subject matter or of the parties, the federal court
acquires none, although in a like suit originally brought in federal court it would have had
jurisdiction.’” Rodas v. Seidlin, 656 F.3d 610, 615 (7th Cir. 2011) (alteration omitted)
(quoting Edwards v. U.S. Dep’t of Justice, 43 F.3d 312, 316 (7th Cir. 1994)). Therefore,
so long as the motion is made before entry of final judgment, Abaju v. Harvey, No. 1:18cv-01234-JMS-MJD, 2018 WL 3586588, at *5 (S.D. Ind. July 26, 2018) (MagnusStinson, C.J.) (discussing Rodas, 656 F.3d at 619–25), the case must be dismissed for
lack of jurisdiction.
The conclusion advanced by Arvin would be correct if its predicates were. But
Swallers did not sue the United States; he sued Arvin. The United States is a sovereign
and enjoys sovereign immunity; Arvin personally is not and does not. See Kentucky v.
Graham, 473 U.S. 159, 166–67 (1985); Edelman v. Jordan, 415 U.S. 651, 668 (1974);
Okoro v. Callaghan, 324 F.3d 488, 491 (7th Cir. 2003).
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The Westfall Act, codified in relevant part at 28 U.S.C. § 2679, “immunizes
federal employees acting within the scope of their employment from an action for
damages through the device of substituting the United States as the party defendant, so
long as the suit is not for a constitutional violation or otherwise statutorily authorized
against a government employee.” Panther Brands, LLC v. Indy Racing League, LLC, 827
F.3d 586, 590–91 (7th Cir. 2016). And federal district courts’ jurisdiction over tort claims
against the United States is exclusive of the state courts’. 28 U.S.C. § 1346(b)(1). But the
Westfall Act is not self-executing. Only “[o]nce the Attorney General certifies that the
named employee was acting within the scope of his office or employment, [does] federal
jurisdiction become[] exclusive.” Panther Brands, 827 F.3d at 591 (citing Osborn v.
Haley, 549 U.S. 225, 242, 243, (2007)).
No such certification has been made in this case, neither here nor in the state court.
Arvin remains the only named defendant; the United States has not been substituted.
Thus, the operation of the Westfall Act and 28 U.S.C. § 1346 did not divest the state
court of jurisdiction over Swallers’s suit, and there is accordingly no existing defect in
our jurisdiction.
Before closing, we note that we have assumed Swallers’s action to be one for
conversion or replevin under state law. It is only in such cases where state law supplies
the rule of decision, that is, where “the United States ‘would be liable to the claimant’ as
‘a private person’ ‘in accordance with the law of the place where the act or omission
occurred[,]’” that the statutory machinery described here is engaged. FDIC v. Meyer, 510
U.S. 471, 477 (1994) (quoting 28 U.S.C. § 1346(b)). Swallers’s tardy and largely
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incomprehensible response to Arvin’s motion suggests, however, that his is a Bivens
action for violations of the Fourth Amendment to the Constitution. If that is so, there is
still no sovereign immunity problem, Okoro, 324 F.3d at 491, and Arvin has not
challenged the state court’s jurisdiction to hear and decide Bivens actions.
Order
For the reasons explained above, Arvin’s motion to dismiss [Dkt. 3] is DENIED.
Swallers’s pending motions [Dkt. 11 and Dkt. 12] are DENIED AS MOOT.
IT IS SO ORDERED.

Date:

9/25/2018

_______________________________
SARAH EVANS BARKER, JUDGE
United States District Court
Southern District of Indiana

Distribution:
THE BRENT ALLEN SWALLERS ESTATE BY EXECUTOR BRENT-ALLEN
539 S. Auburn Street
Indianapolis, IN 46241
Shelese M. Woods
UNITED STATES ATTORNEY'S OFFICE (Indianapolis)
[e-mail]

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