Martin v. U.S. Department of Transportation et al
Filing
12
MEMORANDUM OPINION AND ORDER by Judge Greg N. Stivers on 11/18/2016 denying 5 Plaintiff's Motion to Remand and denying 6 Plaintiff's Motion for Summary Judgment. cc: Plaintiff, pro se; Counsel of Record; Hart County Circuit Court (CDR)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
BOWLING GREEN DIVISION
CIVIL ACTION NO. 1:16-CV-00124-GNS
PEPPY MARTIN
PLAINTIFF
V.
U.S. DEPARTMENT OF TRANSPORTATION;
KENTUCKY TRANSPORTATION CABINET; and
HART COUNTY CIRCUIT COURT
DEFENDANTS
MEMORANDUM OPINION AND ORDER
This matter comes before the Court on Plaintiff’s Motion to Remand (DN 5) and
Plaintiff’s Motion for Summary Judgment (DN 6). The motions are ripe for adjudication. For the
reasons detailed below, the motions are DENIED.
I.
STATEMENT OF FACTS
Plaintiff Peppy Martin (“Martin”) filed a lawsuit against the U.S. Department of
Transportation (“USDOT”), Kentucky Transportation Cabinet, and Hart County Fiscal Court in
Hart Circuit Court on April 29, 2016. (Notice of Removal Ex. 1, DN 1-2 [hereinafter Compl.])
Plaintiff attempted to serve all three defendants via U.S. mail, but a declaration by USDOT
Attorney Advisor Michelle S. Andotra (“Andotra”) reflects that service was never properly
received by USDOT in its Washington, D.C., office or its Kentucky Division Office in Frankfort,
1
Kentucky.1 (Def.’s Resp. to Pl.’s Mot. Summ J. Ex. 1, ¶¶ 3-4, DN 8-1[hereinafter Andotra
Decl.]) USDOT became aware of the action when co-Defendant Hart County Fiscal Court sent
USDOT a courtesy copy of their Motion to Dismiss in state court. (Andorta Decl. ¶ 5). On July
22, 2016, the USDOT removed the case to federal court pursuant to 28 U.S.C. § 1442. (Notice of
Removal). Plaintiff filed a Motion to Remand the case on August 15, 2016 and a Motion for
Summary Judgment on August 19, 2016. (Pl.’s Mot. to Remand; Pl.’s Mot. Summ. J.).
II.
JURISDICTION
The Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1442(a)(1), which
allows actions to be removed when a claim is asserted against a federal agency. See Smith v.
Puett, 506 F. Supp. 134, 137 (M.D. Tenn. 1980) (noting that 28 U.S.C. § 1442(a)(1) “has long
been held to be a jurisdictional grant in itself . . . .” (citations omitted)).
III.
A.
DISCUSSION
Plaintiff’s Motion to Remand
Removal is proper in “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). A case “may be
removed by the defendant or the defendants, to the district court of the United States for the
district and division embracing the place where such action is pending.” Id. After the filing of a
notice of removal, a plaintiff may move to remand the case “on the basis of any defect other than
lack of subject matter jurisdiction” within thirty days. 28 U.S.C. § 1447(c). Further, “[t]he
removal petition is to be strictly construed, with all doubts resolved against removal.” Her
1
According to Andotra, the Plaintiff incorrectly sent the complaint and summons to 1220 N.
Jersey Street, S.E., Washington, DC 20590, and the correct address is 1200 New Jersey Avenue,
SE, Washington, DC 20590. (Andotra Decl. ¶ 2).
2
Majesty the Queen in Right of Province of Ont. v. City of Detroit, 874 F.2d 332, 339 (6th Cir.
1989) (citation omitted).
Plaintiff seeks to remand this matter to Hart Circuit Court on the basis that there is a lack
of federal jurisdiction in this matter. Specifically, Plaintiff argues that the requirements for
diversity jurisdiction or federal question jurisdiction in this matter are not met; however, USDOT
did not remove this matter on the basis of diversity of the parties or federal question. Rather,
USDOT relied upon 28 U.S.C. § 1442. (Notice of Removal).
In relevant part, the statute provides:
A civil action or criminal prosecution 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.
28 U.S.C. § 1442(a)(1) (emphasis added). “‘[Section] 1442(a)(1) as amended permits a federal
agency to remove to federal district court without limitation.’” In re Estate of West v. U.S. Dep’t
of Veteran Affairs, No. 3:16-CV-00166-TBR, 2016 WL 4180004, at *2 (W.D. Ky. Aug. 5, 2016)
(quoting City of Cookeville v. Upper Cumberland Elec. Membership Corp., 484 F.3d 380, 39091 (6th Cir. 2007). “‘[W]hen federal parties remove an action under Section 1442(a)(1), the
federal court assumes jurisdiction over all the claims and parties in the case regardless of
whether the federal court could have assumed original jurisdiction over the suit . . . .’” In re
Jenkins Clinic Hosp. Found., Inc., 861 F.2d 720, 1988 WL 114807, at *4 (6th Cir. 1988)
(quoting Dist. of Columbia v. Merit Sys. Protection Bd., 762 F.2d 129, 132-33 (D.C. Cir. 1985)).
3
USDOT is clearly an agency of the United States, and thus falls within the jurisdiction of
Section 1442(a)(1). Additionally, the other Defendants in this matter, Kentucky Transportation
Cabinet and Hart County Circuit Court, are properly in this Court because once a “federal part[y]
remove[s] an action under Section 1442(a)(1), the federal court assumes jurisdiction over all the
claims and parties in the case . . . .” In re Jenkins, 861 F.2d at 720. USDOT’s removal of the
case to this Court pursuant to 28 U.S.C. § 1442 is proper.
B.
Plaintiff’s Motion for Summary Judgment
The Court may only grant a motion for summary judgment if “there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). The moving party must identify the basis for its motion and the parts of the record that
demonstrate an absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986). If the moving party satisfies this burden, the non-moving party must point to
specific facts demonstrating a genuine issue of fact for trial. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 247-48 (1986).
While the Court must review the evidence in a light most favorable to the non-moving
party, the non-moving party must do more than “simply show that there is some metaphysical
doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
586 (1986). The non-moving party must present specific facts demonstrating that a genuine issue
of fact exists by “citing to particular parts of materials in the record” or by “showing that the
materials cited do not establish the absence . . . of a genuine dispute.” Fed. R. Civ. P. 56(c)(1).
Moreover, the non-moving party must establish a genuine issue of material fact with respect to
each element of each of her claims. Celotex, 477 U.S. at 322-23. The mere existence of a scintilla
of evidence in support of the non-moving party’s position will be insufficient; instead, the non-
4
moving party must present evidence upon which the jury could reasonably find for her. Hartsel
v. Keys, 87 F.3d 795, 799 (6th Cir. 1996) (citing Anderson, 477 U.S. at 252).
In Plaintiff’s Motion for Summary Judgment, she argues that summary judgment is
proper on her claims because the “[Defendants] have refused to answer Any [sic] allegations.”
(Pl.’s Mot. Summ. J. 2). This motion is premature because USDOT has not received proper
service in this matter; therefore, this Court does not have personal jurisdiction over USDOT. See
Omni Capital Int’l, Ltd. v. Rudolf Wolff & Co., 484 U.S. 97, 104 (1987) (“Before a federal court
may exercise personal jurisdiction over a defendant, the procedural requirement of service of
summons must be satisfied.”). In consideration of Plaintiff’s status as a pro se litigant, the Court
will grant Plaintiff 30 days in which to properly serve USDOT. Thereafter, pursuant to Fed. R.
Civ. P. 12(a)(2), USDOT will have 60 days to file an Answer.
IV.
CONCLUSION
For the foregoing reasons, IT IS HEREBY ORDERED that Plaintiff’s Motion to Remand (DN
5) and Plaintiff’s Motion for Summary Judgment (DN 6) are DENIED.
Greg N. Stivers, Judge
United States District Court
November 18, 2016
cc:
counsel of record
Plaintiff, pro se
5
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?