Thweatt v. Grant et al
ORDER granting 27 Motion to Dismiss and remanding case to the Circuit Court of Lee County. Signed by District Judge Sharion Aycock on 4/21/2011. (sba)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
SADIE RUTH THWEATT
JOHN D. GRANT, ET AL
ORDER GRANTING MOTION TO DISMISS AND REMANDING CASE
This cause was originally filed in the Circuit Court of Lee County, Mississippi for personal
injuries arising from a car accident between Plaintiff Sadie Ruth Thweatt and Defendant John D.
Grant, both residents of Mississippi.1 Plaintiff is a Medicare beneficiary. A dispute developed
between the parties and the Medicare Secondary Payment Contractor over what amount of the
Plaintiff’s medical expenses were related to the accident and therefore subject to recovery by
Medicare in the event of a settlement. The parties filed a “Joint Motion to Join Necessary Party and
For Determination of Related Medical Expenses” asking the state court to join the United States
Department of Health and Human Services (DHHS) to this action and order it to appear before the
court for a hearing to determine what medical treatments undertaken by the Plaintiff were related to
the motor vehicle accident. The state court granted the motion. After being served with a summons,
the Secretary of DHHS promptly removed the action to this court pursuant to 28 U.S.C. § 1442 and
filed a motion to dismiss based on a lack of subject-matter jurisdiction pursuant to Federal Rule of
Civil Procedure 12(b)(1).
John D. Grant, though named in the Complaint, predeceased the commencement of this
action. His estate was substituted as the real party in interest by an agreed order .
Motion to Dismiss
The Court finds the Motion to Dismiss to be well taken. Under the principle of sovereign
immunity, the United States can only be sued with Congress’s consent. Davis v. United States, 597
F.3d 646, 650 (5th Cir. 2009) (citing Block v. North Dakota ex rel. Bd. of Univ. & Sch. Lands, 461
U.S. 273, 287, 103 S. Ct. 1811, 75 L. Ed. 2d 840 (1983)). The Plaintiff bears the burden of showing
Congress’s unequivocal waiver of sovereign immunity. Freeman v. United States, 556 F.3d 326, 334
(5th Cir. 2009) (citations omitted). Plaintiff has failed to do so and instead responds to DHHS’s
Motion to Dismiss by requesting that “this Court enter an order . . . dismissing or otherwise getting
rid of Medicare as a party in interest . . . .” Therefore, the Court GRANTS the Motion to Dismiss
 and dismisses DHHS from this action for lack of subject matter jurisdiction. See Johnson v.
U.S. Dept. of Health and Human Servs., 142 F. App’x 803 (5th Cir. 2005).
On its own motion, the Court remands this action to the Circuit Court of Lee County,
Mississippi. Federal jurisdiction in this action was founded on 28 U.S.C. § 1442(a)(1), which
permits removal of any action against “[t]he United States or any agency thereof or any officer . . .
of the United States or of any agency thereof . . . .” If the federal party is dismissed from the suit
after removal, this Court retains the power either to adjudicate the underlying state law claims or
remand the case to state court. District of Columbia v. Merit Sys. Protection Bd., 762 F.2d 129, 133
(D.C. Cir. 1985); IMFC Prof. Servs. of Fl., Inc. v. Latin American Home Health, Inc., 676 F.2d 152,
160 (5th Cir. 1982). Because this case had been pending in state court for nearly four years prior to
removal, and the federal party was eliminated shortly thereafter, the Court believes that a prompt
remand to state court will best serve the interests of comity, fairness, and judicial economy.
Therefore, this cause is remanded to the Circuit Court of Lee County, Mississippi.
The Motion to Dismiss  is GRANTED and DHHS is dismissed from this action.
Further, this case is REMANDED to the Circuit Court of Lee County, Mississippi.
SO ORDERED this, 21st day of April, 2011.
/s/ Sharion Aycock
UNITED STATES DISTRICT JUDGE
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