Johnson et al v. Conley et al
Filing
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MEMORANDUM OPINION & ORDER, 1) Third party dft HUD's Motion to Dismiss 10 is GRANTED 2) Third Party Plaintiff John and Kelly Conley's claims against HUD are DISMISSED w/o PREJUDICE 3) Action is REMANDED in its entirety to the Boyd Circu it Court form which it was removed; pla James Johnson's motion to compel 17 is left to the sound discretion of the Boyd Circuit Court Judge; and 4) case is STRICKEN from active docket. Signed by Judge David L. Bunning on 5/30/12.(SMT)cc: COR, Certified Copy to Boyd Circuit Court via USMail
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION
AT ASHLAND
CIVIL ACTION NO. 12-18-DLB
JAMES JOHNSON, ET AL.
vs.
PLAINTIFFS
MEMORANDUM OPINION AND ORDER
JOHN CONLEY, ET AL.
DEFENDANTS/
THIRD PARTY PLAINTIFFS
vs.
DEPARTMENT OF HOUSING AND URBAN
DEVELOPMENT, ET AL.
THIRD PARTY DEFENDANTS
**************
Plaintiffs James Johnson, Ernestine Buckner, Jeffrey Ellison, Rebecca Johnson,
Julie Carter Killin, Mary Parks and Mark Westmoreland commenced this negligence action
in Boyd Circuit Court against Defendants John and Kelley Conley and the Unknown Builder
of the Deck alleging that they failed to inspect, maintain and repair a deck on property
owned by the Conleys and that this alleged failure caused the deck to collapse and injure
Plaintiffs.1 (Docs. # 1-1; 1-2). Thereafter, Defendants John and Kelley Conley filed a Third
Party Complaint against Third Party Defendants United States Department of Housing and
Urban Development (HUD), Kentucky Department of Housing, Buildings and Construction
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This action was originally brought as two separate actions in Boyd Circuit Court, one brought by
James Johnson (11-CI-401) and the other brought by Buckner, Ellison, Rebecca Johnson, Killin, Parks and
Westmoreland (11-CI-622). These actions were eventually consolidated. James Johnson also asserted a
bad faith claim against Defendant State Farm Insurance Company. (Doc. # 1-1).
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(KDHBC)2, City of Ashland Assisted Housing Authority (AAHA), Corie Kazee, in his official
and individual capacity, and Terri Anderson, in her official and individual capacity, (Doc.
# 1-3), alleging that Third Party Defendants negligently performed, or caused to be
performed, an inspection of the property and that this alleged negligence was the proximate
cause of Plaintiffs’ injuries. Accordingly, Defendants John and Kelley Conley claim they are
entitled to indemnification, contribution, and/or apportionment of fault against Third Party
Defendants. On March 2, 2012, Third Party Defendant HUD removed the action to this
Court pursuant to 28 U.S.C. § 1442(a)(1) based on its status as a federal agency.
This matter is currently before the Court on Third Party Defendant HUD’s Motion to
Dismiss Third Party Complaint (Doc. # 10) for lack of subject matter jurisdiction. The
motion has been fully briefed, (Docs. # 10, 13, 15), and the matter is now ripe for review.
For the reasons set forth below, Third Party Defendant HUD’s Motion to Dismiss Third
Party Complaint (Doc. # 10) is hereby granted.
I.
FACTUAL AND PROCEDURAL BACKGROUND
On April 5 and June 6, 2011, Plaintiffs filed two, separate civil actions in Boyd Circuit
Court alleging state law tort claims against several defendants. Since these actions
involved the same incident and defendants, they were consolidated on September 9, 2011.
Defendants John and Kelley Conley are the owners of rental property located at
2328 Moore Street in Ashland, Kentucky. The rental property consisted of a house with a
deck attached and was being rented to tenants of the Conleys. Plaintiffs allege that, on or
about October 11, 2010, they were invitees and/or visitors on the property when the
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On May 2, 2012, the Court entered an agreed Order dismissing Third Party Defendant KDHBC from
this action (Doc. # 16).
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attached deck collapsed and caused them injury. Plaintiffs assert that their injuries were
caused by Defendants’ negligence, specifically that Defendants failed to properly construct,
inspect, maintain and repair the deck.
On November 21, 2011, Defendants John and Kelley Conley filed a Third Party
Complaint against Third Party Defendants HUD, KDHBC. AAHA, Corie Kazee, in his
individual and official capacity, and Terri Anderson, in her individual and official capacity.
(Doc. # 1-3). The Conleys allege that Plaintiffs’ injuries were caused by Third Party
Defendants’ negligent inspection of the rental property on September 29, 2010, just twelve
days prior to the collapse of the deck.
The Conleys assert they are entitled to
indemnification, contribution, and/or apportionment of fault against Third Party Defendants.
On March 2, 2012, Third Party Defendant HUD removed the action to this Court pursuant
to 28 U.S.C. § 1442(a)(1). (Doc. # 1).
II.
A.
ANALYSIS
Rule 12(b)(1) Motion to Dismiss Standard
A Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction differs from
a motion to dismiss pursuant to Rule 12(b)(6). In response to a Rule 12(b)(1) motion, the
plaintiffs–in this case, the Third Party Plaintiffs– bear the burden of proving jurisdiction.
Hollins v. Methodist Healthcare, Inc., 474 F.3d 223, 225 (6th Cir. 2007) abrogated on other
grounds by Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 132 S. Ct.
694 (2012). Additionally, “unlike Rule 12(b)(6) analysis, under which the existence of
genuine issues of material fact warrants denial of the motion to dismiss, the court is
empowered to resolve factual disputes when subject matter jurisdiction is challenged.” Id.
(quoting Moir v. Greater Cleveland Reg’l Transit Auth., 895 F.2d 266, 269 (6th Cir. 1990))
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(internal quotations omitted).
B.
Derivative Jurisdiction
The HUD argues that the doctrine of derivative jurisdiction applies in this case, and,
therefore, the Third Party Complaint must be dismissed because the state court never had
subject matter jurisdiction over the alleged tort claims prior to their removal. This doctrine
establishes that the district court’s jurisdiction over a removed case mirrors the state court’s
jurisdiction prior to removal. Minnesota v. United States, 305 U.S. 382, 389 (1979). Stated
differently, “[w]here 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 a federal court
it would have had jurisdiction.” Id. Thus, a removed action that is within the exclusive
jurisdiction of the federal courts must be dismissed because the state court where the
action was originally brought lacked jurisdiction to hear the case. See Palmer v. City Nat’l
Bank of W. Va., 498 F.3d 236, 244 (4th Cir. 2007).
Although derivative jurisdiction has been frequently criticized and Congress has
abrogated the doctrine in matters removed pursuant to the general removal statute, 28
U.S.C. § 1441, the abrogation does not extend to cases removed under other provisions.
See id. at 244-46 (citing 28 U.S.C. § 1441(f) (abrogating the derivative jurisdiction doctrine
with respect to cases “removed under this section.”)).
Indeed, federal courts have
consistently held that the doctrine remains applicable to any cases removed pursuant to
28 U.S.C. § 1442(a)(1). See e.g., Bullock v. Napolitano, 666 F.3d 281, 286 (4th Cir. 2012);
Edwards v. U.S. Dep’t of Justice, 43 F.3d 312, 316 (7th Cir. 1994); McRory v. Hobart Bros.
Co., Inc., 732 F.2d 1533, 1535 (11th Cir. 1984); Johnson v. Louisville Int’l Airport, No. 11cv-216, 2011 WL 271364, at *2 (W.D. Ky. July 12, 2011); Cobble v. Geithner, No. 11-cv-21,
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2011 WL 1625093, at *1 (W.D. Ky. April 28, 2011); Taylor v. United States, No. 06-cv-2,
2006 WL 2037392, at *1 (W.D. Ky. July 18, 2006).
Furthermore, removal by HUD is not a consent to be sued or a waiver of any
objection it has to the jurisdiction of the removal court. See Minnesota, 305 U.S. at 388-89
(“The fact that the removal was effected on petition of the United States and the stipulation
of its attorney in relation thereto are facts without legal significance. Where jurisdiction has
not been conferred by Congress, no officer of the United States has power to give any
court jurisdiction of a suit against the United States.”). A party’s power to remove a case
to federal court is independent of the federal court’s power to hear the case, and, once a
case is properly removed, the federal court has the authority to decide whether it has
subject matter jurisdiction over the claims. State of Neb. ex. rel. Dep’t of Soc. Servs. v.
Bentson, 146 F.3d 676, 679 (9th Cir. 1998) (citing 28 U.S.C. § 1447© (“If at any time [after
removal and] before final judgment it appears that the district court lacks subject matter
jurisdiction, the case shall be remanded.”)).
Accordingly, because this action was removed pursuant to 28 U.S.C. § 1442(a)(1),
the doctrine of derivative jurisdiction applies. This Court’s jurisdiction is limited to the
jurisdiction vested in the state court. However, for the reasons discussed herein, the state
court lacked jurisdiction over the tort claims asserted against Third Party Defendant HUD.
As a result, the Court acquired no jurisdiction upon removal, and the Third Party Complaint
against HUD must be dismissed.
C.
Lack of Subject Matter Jurisdiction
As a sovereign, the United States is immune from suits, except to the extent that it
has consented to be sued. FDIC v. Meyer, 510 U.S. 471, 475 (1994). Third Party Plaintiffs
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allege various tort claims against HUD, and these claims may only be brought within the
scope of the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2679 et seq. While the FTCA
acts as a waiver of the United States’ sovereign immunity in state law tort actions, it is the
sole waiver of immunity for these actions against federal government agencies and
employees. 28 U.S.C. § 2679(a), (b)(1). The FTCA provides that federal courts shall have
exclusive jurisdiction over tort actions against the United States. 28 U.S.C. § 1346(b)(1)
(“Subject to the provisions of chapter 171 of this title, the district courts, ... shall have
exclusive jurisdiction of civil actions on claims against the United States, for money
damages, ... for ... personal injury or death caused by the negligent or wrongful act or
omission of any employee of the Government while acting within the scope of his office or
employment ... .”). Accordingly, the United States has not consented to be sued in state
court under the FTCA, and the Boyd Circuit Court lacked jurisdiction over Third Party
Plaintiffs’ claims against HUD. Pursuant to the doctrine of derivative jurisdiction, because
the state court lacked subject matter jurisdiction over Third Party Plaintiffs’ claims against
HUD, this Court did not acquire jurisdiction upon removal.
Moreover, although the FTCA is a limited waiver of the United States’ immunity, it
does not waive the sovereign immunity of federal government agencies. 28 U.S.C. §
2679(a). The FTCA vests the district courts with “exclusive jurisdiction of civil actions on
claims against the United States ... .” 28 U.S.C. § 1346(b) (emphasis added). It is the
United States and not the responsible agency or employee that is the proper defendant in
a FTCA suit. Allgeier v. United States, 909 F.2d 869, 871 (6th Cir. 1990) (citing 28 U.S.C.
§ 2679(a)). “Thus, an FTCA claim against a federal agency or employee as opposed to the
United States itself must be dismissed for want of jurisdiction.” Galvin v. OSHA, 860 F.2d
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181, 183 (5th Cir. 1988) (citations omitted).
Third Party Plaintiffs argue that this Court has jurisdiction because HUD has
asserted a defense that arises under federal law. They cite Mesa v. California, 489 U.S.
121 (1989), for the proposition that jurisdiction may be proper in a district court if the
removing federal agency asserts a defense that arises under federal law. Because HUD
has presented a defense of sovereign immunity, Third Party Plaintiffs claim that this is
sufficient to give this Court jurisdiction over the matter. Third Party Plaintiffs’ argument is
without merit.
Mesa v. California held that federal officer removal under § 1442(a) must be
predicated upon averment of a federal defense. 489 U.S. at 129. The Court found that
§ 1442(a) is purely a jurisdictional statute, “seeking to do nothing more than grant district
court jurisdiction over cases in which a federal officer is a defendant.” Id. at 136.
Therefore, § 1442(a) cannot independently support the court’s Article III “arising under”
jurisdiction. “Rather, it is the raising of a federal question in the officer’s removal petition
that constitutes the federal law under which the action against the federal officer arises for
Art[icle] III purposes.” Id.; see also Ohio v. Wright, 992 F.2d 616, 619 (6th Cir. 1993) (A
federal defense is a necessary element in every § 1442(a)(1) federal officer removal under
Mesa v. California, because officers must claim authority for their conduct under an “Act
of Congress.”). Given that there is no officer removal in the present case, Mesa v.
California is wholly inapplicable to the circumstances before the Court. See also City of
Cookeville, Tenn. v. Upper Cumberland Elec. Membership Corp., 484 F.3d 380, 391 (6th
Cir. 2007) (“This case is thus different from Mesa v. California, ..., in which the Supreme
Court rejected the government’s argument that a federal defense is not required for officer
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removal. The Mesa Court reasoned that an interpretation of § 1442 requiring such a
defense ensures Article III jurisdiction by virtue of the case’s “arising under” federal law.
No such interpretation is required where the United States is a party.”) (internal citations
omitted)).
One final matter deserves brief comment. HUD also argues that since the United
States has maintained its sovereign immunity for the acts of contractors, and none of the
allegedly tortious acts were committed by employees of the federal government, there is
no valid waiver of sovereign immunity. However, because the Court finds that it lacks
subject matter jurisdiction over the claims against HUD pursuant to the doctrine of
derivative jurisdiction, it would be improper to consider any substantive arguments raised
by Defendants. See Cobble, 2011 WL 1625093, at 1 n.1 (citing Steel Co. v. Citizens for
a Better Env’t, 523 U.S. 83, 94 (1998) (explaining that once a Court has determined that
it lacks subject matter jurisdiction, the Court should not proceed any further)); see also
Sweeton v. Brown, 27 F.3d 1162, 1169 (6th Cir. 1994) (quoting United States v. Siviglia,
686 F.2d 832, 835 (10th Cir. 1981) (“A court lacking jurisdiction cannot render judgment but
must dismiss the cause at any stage of the proceedings in which it becomes apparent that
jurisdiction is lacking.”) (emphasis in the original)).
D.
Remand to Boyd Circuit Court
The HUD removed this action pursuant to 28 U.S.C. § 1442(a)(1). That statute
permits removal by “[t]he United States or any agency thereof or any officer.” HUD has
now been dismissed, and the Court has no independent basis of jurisdiction over the
remaining claims or Defendants. Once the federal party has been “dismissed from [a] case
which has been removed under [the] rule permitting removal of suits brought against
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officers or agencies of [the] United States, a federal district court has the power either to
adjudicate remaining state claims or remand to state court.” Estate of Guzik ex rel. Guzik
v. Mahmud, No. 09-CV-0657, 2009 WL 1844317, at *1 (W.D. Pa. June 26, 2009); see also
Watkins v. Grover, 508 F.2d 920, 921 (9th Cir. 1974); Gulati v. Zuckerman, 723 F. Supp.
353 (E.D. Pa. 1989); Peroff v. Manuel, 421 F.Supp. 570 (D.D.C. 1976). Because Plaintiffs’
choice of forum was state court and there have been no significant proceedings in federal
court—with the exception of this Order—the Court declines to retain jurisdiction over the
remaining Defendants and remands the matter to the Boyd Circuit Court. See Estate of
Guzik, 2009 WL 1884317, at *1 (citing factors to consider in determining whether to remand
to state court); Gen. Motors Corp. v. Hirschfield Steel Serv. Ctr., Inc., 402 F. Supp.2d 800,
808 (E.D. Mich. 2005) (same).
III.
CONCLUSION
For the foregoing reasons, IT IS ORDERED as follows:
(1)
Third Party Defendant HUD’s Motion to Dismiss (Doc. # 10) is hereby
GRANTED;
(2)
Third Party Plaintiffs John and Kelly Conley’s claims against HUD are hereby
DISMISSED WITHOUT PREJUDICE;
(3)
This action is REMANDED in its entirety to the Boyd Circuit Court from which
it was removed. Plaintiff James Johnson’s Motion to Compel (Doc. # 17) is
left to the sound discretion of the Boyd Circuit Court Judge; and
(4)
This case is STRICKEN from the Court’s active docket.
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This 30th day of May, 2012.
G:\DATA\Opinions\Ashland\0-12-18 MOO Granting MTD.wpd
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