COFIELD v. UNITED STATES DEPARTMENT OF JUSTICE et al

Filing 86

OPINION. Signed by Judge Renee Marie Bumb on 5/21/2018. (dmr)

Case 1:15-cv-00558-RMB-KMW Document 86 Filed 05/22/18 Page 1 of 20 PageID: 819

NOT FOR PUBLICATION
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE

Dr. Keenan K. Cofield,
Plaintiff,
v.
United States Dep’t
of Justice, et al.,
Defendants.

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Civil Action No. 15-558(RMB)

OPINION

APPEARANCES:
Anne B. Taylor (Argued)
Assistant U.S. Attorney
Office of the U.S. Attorney
District of New Jersey
401 Market Street, 4th Floor
P.O. Box 2098
Camden, NJ 08101
On behalf of Defendants
Richard Wolf, Esq. (Argued)
Jonathan M. Korn, Esq. (On the brief)
Stephen M. Orlofsky, Esq. (On the brief)
BLANK ROME, LLP
301 Carnegie Center, 3rd Floor
Princeton, New Jersey 08540
Court-Appointed Attorneys on behalf of Plaintiff

This matter comes before the Court upon Defendants’ motion
suggesting

partial

dismissal

for

lack

of

subject

matter

jurisdiction pursuant to Fed. R. Civ. P. 12(h)(3) (“Partial Mot.

1 

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to Dismiss,” ECF No. 76); Plaintiff’s brief in opposition to
Defendants’ motion (“Pl’s Brief,” ECF No. 78); and Defendants’
Reply Brief in Support of Defendants’ Motion (“Defs’ Reply Brief,”
ECF No. 79.) Oral argument was held before the Court on May 15,
2018. Based on the oral argument, the record, and the briefs in
this matter, for the reasons discussed below, the Court denies
Defendants’ partial motion to dismiss.
I.

BACKGROUND
Plaintiff Keenan K. Cofield originally filed this action in

the Superior Court for the District of Columbia, and named as
defendants

the

Bureau

Prisons

of

United

States

(“BOP”),

Justice
the

Department,

Inmate

the

Accident

Federal

Compensation

System, J.T. Shartle (the warden of the Federal Correctional
Institution

at

Fairton

(“FCI

Fairton”)),

and

several

unnamed

employees of FCI Fairton, identified only by their job title.
(Opinion,

ECF

No.

21.)

Liberally

construing

his

pleadings,

Plaintiff asserted: Eighth Amendment Bivens claims for a failure
to provide medical treatment after he injured himself on the job;
forcing him to work past his medical capacity; and based on the
conditions of his cell; a due process claim for placing him in
administrative

segregation

and

transferring

him

to

Maryland

because of what he contends was a faulty detainer; a tort and due
process claim related to allegedly lost property; and a claim for

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failure to properly train and supervise employees. (Opinion, ECF
No. 21.)
The Defendants removed the case, pursuant to the federal
agencies and officers’ removal provision, 28 U.S.C. § 1442(a)(1),
and 28 U.S.C. § 1446, to the Federal District Court of the District
of Columbia because some of the originally-named Defendants are
federal agencies. (Notice of Removal, ECF No. 1.) The Defendants
then

moved

to

transfer

the

venue

to

this

Court

because

the

allegations in the complaint arose entirely out of Plaintiff’s
incarceration in the District of New Jersey. (Mot. to Transfer,
ECF No. 7.)
After removal and transfer to this Court, Defendants filed a
motion to dismiss. (Mot. to Dismiss, ECF No. 19.) On February 3,
2016, this Court granted in part, and denied in part, Defendant’s
motion to dismiss. (Opinion and Order, ECF Nos. 22, 23.) Relevant
to the pending motion, the Court denied Defendants’ motion to
dismiss

based

on

derivative

jurisdiction,

citing

Calhoun

v.

Murray, 507 F. App’x 251 (3d Cir. 2012), an unpublished case.
(Opinion, ECF No. 21 at 7-9.)
The Court permitted Plaintiff to file an amended complaint,
which he filed on July 5, 2016. (Am. Compl., ECF No. 38 at 3-26.)
Defendants filed a partial motion to dismiss the amended complaint,
which the Court granted in part, and denied in part. (Opinion and
Order, ECF Nos. 52, 53.)

Accordingly, the claims that remain in

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this matter are a claim brought pursuant to the Administrative
Procedure

Act

(“APA”)

that

Plaintiff’s

Inmate

Accident

Compensation Act (“IACA”) claim to compensate him for a workrelated

injury

negligence

was

claim,

not

properly

brought

under

considered
the

Federal

by

the

Tort

BOP;

one

Claims

Act

(“FTCA”), arising out of Plaintiff’s sleeping conditions at FCI
Fairton; an Eighth Amendment claim brought under the Bivens implied
cause of action against Warden Shartle and Ms. Levi for allegedly
forcing Plaintiff to perform an inmate job beyond his known
physical capacity; and a due process claim, also brought under
Bivens, against unnamed employees for Plaintiff’s alleged loss of
property and failure to provide a sufficient post-deprivation
remedy.
In light of the perceived conflict between the Third Circuit’s
non-precedential

decision

in

Calhoun1,

supra,

and

older

precedential Third Circuit cases suggesting dismissal under the
doctrine of derivative jurisdiction, this Court indicated to the
parties that it would reconsider its ruling and asked the parties
to provide additional briefing on the issue.

The Court also

1

The Court recognizes that pursuant to the Internal Operating
Procedures of the United States Court of Appeals for the Third
Circuit non-precedential opinions are “not regarded as
precedents that bind the court because they do not circulate to
the full court before filing.” I.O.P. 5.7 (2112).

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appointed counsel to Plaintiff for representation on this limited
purpose. (Order, ECF No. 69.)
II.

DISCUSSION
A.

The Parties’ Arguments

Defendants move pursuant to Federal Rule of Civil Procedure
12(h)(3) for dismissal of Plaintiff’s FTCA and APA claims for lack
of subject matter jurisdiction under the doctrine of derivative
jurisdiction. Defendants do not move to dismiss Plaintiff’s Bivens
claims.
Defendants contend Third Circuit precedential cases require
dismissal of the FTCA and APA claims, pursuant to the doctrine of
derivative jurisdiction. Defendants rely on Witherow v. Firestone
Tire & Rubber Co., 530 F.2d 160, 167-68 (3d Cir. 1976); Bradshaw
v.

General

Motors

Corp.,

805

F.2d

110,

112

(3d

Cir.

1986);

Stapleton v. $2,438,110, 454 F.2d 1210, 1213, 1215 (3d Cir. 1972);
and Gleason v. United States, 458 F.2d 171, 173 (3d Cir. 1972).
Defendants

contend

that

each

of

these

cases

stand

for

the

proposition that under the doctrine of derivative jurisdiction,
when defendants remove claims filed in state court under 28 U.S.C.
§ 1442(a), as was done here, if the state court lacked subject
matter jurisdiction over those claims, the federal court also lacks
subject matter jurisdiction.

This is so because the federal

court’s jurisdiction is derivative of the jurisdiction of the state

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court.

Thus, if the state court has no jurisdiction, neither does

the federal court.
In further support of their position, Defendants point out
that Congress, although it abrogated derivative jurisdiction under
28 U.S.C. § 1441, chose not to abrogate derivative jurisdiction
under § 1442(a). As recently as 2011, Congress decided to retain
the doctrine of derivative jurisdiction in the Jurisdiction and
Venue Clarification Act of 2011, Pub. L. No. 112-63, 125 Stat.
758. See H.R.-Rep. 112-10, at 3 (2011).
Defendants also contend that, pursuant to the Third Circuit
decision in Stapleton, 454 F.2d at 1215, a post-removal amendment
cannot cure a jurisdictional defect arising under the doctrine of
derivative jurisdiction. Thus, Defendants claim Plaintiff did not
cure the jurisdictional defect when he filed an amended complaint
in this Court, nor could he do so now.
Finally, Defendants distinguish Rodas v. Seidlin, 656 F.3d
610

(7th

Cir.

2011)

and

other

recent

cases

that

hold

that

derivative jurisdiction is a procedural bar affecting removal
jurisdiction and not an essential ingredient for federal subject
matter jurisdiction. Defendants note that Rodas, and cases with
similar holdings, addressed whether a final judgment must be
vacated if derivative jurisdiction is raised for the first time
following entry of judgment in the district court. This case is

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distinguishable, Defendants argue, because judgment has not been
entered in this case prior to raising the jurisdictional issue.
Plaintiff, on the other hand, argues that the Third Circuit
unpublished case, Calhoun v. Murray, 507 F. App’x 251 (3d Cir.
2012) was based on sound rationale and should be followed despite
its non-precedential nature.

In relevant part, the Calhoun Court

stated:
Our jurisdiction on appeal in this matter is governed by
Grubbs
because
“[t]he
doctrine
of
derivative
jurisdiction, despite its perhaps improvident name, is
best understood as a procedural bar to the exercise of
federal judicial power. That is, the doctrine creates
a defect in removal, but is not an essential ingredient
to federal subject matter jurisdiction.” Rodas 656 F.3d
at 619; see also Morda v. Klein, 865 F.2d 782, 784 (6th
Cir. 1989); Foval v. First Nat’l Bank of Commerce in New
Orleans, 841 F.2d 126, 129 (5th Cir. 1988); Sorosky v.
Burroughs Corp., 826 F.2d 794, 800-01 (9th Cir. 1987).
Each of Calhoun’s claims could have been properly filed
in the District Court. Therefore, we are not deprived
of jurisdiction on appeal, despite the existence of any
potential procedural errors in removal.
Calhoun, 507 Fed. Appx. 256-57.
The Calhoun Court noted “jurisdiction” as used in the phrase
“derivative jurisdiction” is a misnomer. Removal itself does not
confer jurisdiction, it is a procedural means to move a case into
federal court. Because removal jurisdiction is procedural, it can
be waived. Plaintiff cites to instances where removal defects were
waived

and

the

district

court

retained

subject

matter

jurisdiction. See, e.g., Farina v. Nokia, 625 F.3d 97, 114 (3d

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Cir.

2010)

(a

defect

with

regard

to

removal

is

“considered

jurisdictional only if the case could not initially have been filed
in federal court.”)
Plaintiff further contends that the Calhoun decision is in
accord with recent decisions in other federal courts, as well as
the Supreme Court decision in Grubbs v. General Electric Credit
Corp., 405 U.S. 699 ([April 18] 1972). In Grubbs, the Court stated,
“‘longstanding decisions of this Court make clear’ that the issue
was not whether the case was properly removed, but whether the
federal

court

would

have

had

jurisdiction

if

the

case

were

originally filed in that court.” Grubbs, 405 U.S. at 699. In
Grubbs,

there

was

complete

diversity

of

citizenship

and

a

sufficient amount in controversy for federal jurisdiction. The
case, therefore, could have been originally brought in federal
court. By not objecting to the notice of removal, the parties
waived

the

right

to

argue

that

there

was

no

subject

matter

jurisdiction.
Plaintiff

asserts

the

fact

that

objections

to

removal

jurisdiction can be waived, as in Grubbs, suggests that it is not
truly a species of subject matter jurisdiction, which can never be
waived. The Sixth, Seventh, and Eighth Circuit Courts of Appeals
have likewise held that derivative jurisdiction refers to the
propriety of removal jurisdiction and not the subject matter
jurisdiction of the federal court.

See Rodas v. Seidlin, 656 F.3d

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610 (7th Cir. 2011)(“The doctrine of derivative jurisdiction,
despite its perhaps improvident name, is best understood as a
procedural bar to the exercise of federal judicial power. That is,
the doctrine creates a defect in removal, but is not an essential
ingredient to federal subject matter jurisdiction”); Fed. Home
Loan Mortg. Corp. v. Gilbert, 656 Fed. App’x 45, 53 (6th Cir. 2016)
(Sutton, J., concurring); North Dakota v. Fredericks, 940 F.2d 333
(8th Cir. 1991).
Lastly, Plaintiff argues that application of the derivative
jurisdiction doctrine to dismiss his FTCA and APA claims would
lead to an absurd result because claims over which federal courts
have exclusive jurisdiction should not be turned away by the
federal court simply because the state court lacked subject matter
jurisdiction over the claims mistakenly brought there by the
plaintiff.
B.

Analysis

This case presents the question of whether a federal district
court has the power to hear exclusively federal claims, such as
those arising under the FTCA or APA, when those claims were brought
into federal court by removal from state court. If, as Plaintiff
suggests, the doctrine of derivative jurisdiction describes a
defect in a federal court’s removal jurisdiction rather than its
original

subject

matter

jurisdiction,

the

procedural

removal

defect may be waived and the court may exercise jurisdiction over

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Plaintiff’s federal claims. If, as Defendants suggest, derivative
jurisdiction precludes a federal court from hearing exclusively
federal claims that were brought in state court and removed, this
Court must dismiss Plaintiff’s FTCA and APA claims. Furthermore,
Defendants argue the jurisdictional defect cannot be cured by
amendment of the complaint to bring the claims in federal court
under federal subject matter jurisdiction.
As early as 1922, the Supreme Court explained:
The jurisdiction of the federal court on
removal is, in a limited sense, a derivative
jurisdiction. If the state court lacks
jurisdiction of the subject-matter or of the
parties, the federal court acquires none,
although it might in a like suit originally
brought there have had jurisdiction.
Lambert Run Coal Co. v. Baltimore & O.R. Co., 258 U.S. 377, 382
(1922)). The Supreme Court stated “the Circuit Court of Appeals,
in remanding the cause to the District Court, should have directed
a dismissal for want of jurisdiction and without prejudice.” 258
U.S. at 383.

Years later, however, in 1972, the Supreme Court

decided Grubbs v. General Elec. Credit Corp., 405 U.S. 699 (1972).
In

Grubbs,

jurisdiction.

the

Supreme

Court

again

addressed

derivative

The Court concluded that the doctrine of derivative

jurisdiction refers to removal jurisdiction, and a flaw in removal
jurisdiction can be waived when the federal court has subject
matter jurisdiction over the removed claims. In Grubbs, where the
United States was added to a state court case as a party defendant

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and then removed the entire action to federal court for a jury
trial, the Court noted,
Longstanding decisions of this Court make
clear, however, that where after removal a
case is tried on the merits without objection
and the federal court enters judgment, the
issue in subsequent proceedings on appeal is
not whether the case was properly removed, but
whether the federal district court would have
had original jurisdiction of the case had it
been filed in that court.
Id. at 702.
The Grubbs Court cited to Baggs v. Martin, 179 U.S. 206,
(1900), where a receiver appointed by a federal court was sued in
state court and removed the action to the federal court that
appointed him. Id. at 702-03. In Baggs, the receiver sought
reversal of the judgment on appeal on the ground that the case was
not properly removed from the state court. Id. The Supreme Court
held that the receiver could not object to the removal of the case
when removal had come as a result of his own action. Id.
The Grubbs Court also cited to Mackay v. Uinta Development
Co., 229 U.S. 173 (1913).

Grubbs, 405 U.S. at 703. In Mackay the

action was brought in state court between two citizens of different
states, but the amount in controversy requirement for federal
jurisdiction was met only by means of the defendant’s counterclaim.
Id. The case was removed to federal court without objection and it
was tried on the merits. Grubbs, 405 U.S. at 703. The losing party
appealed based on failure to comply with the removal statutes. Id.

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The Supreme Court rejected the argument, stating:
‘(R)egardless of the manner in which the case
was brought or how the attendance of the
parties in the United States court was
secured, there was presented to the Circuit
Court a controversy between citizens of
different States in which the amount claimed
by one non-resident was more than $2,000,
exclusive of interest and costs. As the court
had jurisdiction of the subject-matter the
parties could have been realigned by making
Mackay plaintiff and the Development Company
defendant, if that had been found proper. But
if there was any irregularity in docketing the
case or in the order of the pleadings such an
irregularity was waivable, and neither it nor
the method of getting the parties before the
court operated to deprive it of the power to
determine the cause.’ [Mackay v. Uinta
Development Co.,] at 176—177, 33 S. Ct., at
639.

Grubbs, 405 U.S. at 703.
The parties in Grubbs conceded that there would have been
diversity jurisdiction in the Federal District Court under 28
U.S.C. § 1332 if the action had been brought in that court
originally. Grubbs, 405 U.S. at 704. Therefore, the Supreme Court
held that the removal defect did not deprive the federal district
court of jurisdiction at the time of judgment. Id. at 705-06.
In 1996, the Supreme Court held in Caterpillar Inc. v. Lewis,
519 U.S. 61, 64 (1996), that a district court's error in failing
to remand a diversity jurisdiction case improperly removed is not
fatal

to

the

ensuing

adjudication

if

federal

jurisdictional

requirements are met at the time judgment is entered.

The Court

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stated, “Grubbs instructs that an erroneous removal need not cause
the destruction of a final judgment, if the requirements of federal
subject-matter jurisdiction are met at the time the judgment is
entered,” but Grubbs “dealt with a case removed without objection.”
Id. at 73. In Caterpillar, the plaintiff timely objected to removal
but

the

district

court

erroneously

maintained

jurisdiction;

however, diversity jurisdiction existed at the time of trial. Id.
Because the Court had subject-matter jurisdiction at the time of
judgment, correcting the removal defect at post-judgment “would
impose an exorbitant cost on our dual court system.” Id. at 77.
The Seventh Circuit, in Rodas v. Seidlin, 656 F.3d 610, 612
(7th Cir. 2011) held that “the doctrine of derivative jurisdiction
is cabined by the principles announced in” Grubbs and Caterpillar.
In Rodas, the United States, in an amicus brief, argued that “the
doctrine

of

derivative

jurisdiction,”

which

provides

“that

a

federal court acquires no jurisdiction upon removal where the state
court lacked jurisdiction over the subject matter or the parties”
created a latent jurisdictional defect that persists on appeal.
656 F.3d at 612. In Rodas, the United States had removed the case
to federal court under the federal officer removal statute, 28
U.S.C. § 1442)(a)(1), but after judgment the United States argued
the doctrine of derivative jurisdiction deprived the federal court
of subject matter jurisdiction. Id. at 614.

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The Seventh Circuit noted that the conditions for removal
under § 1442(a)(1) were met, and the doctrine of derivative
jurisdiction applied to such removals, but the question remained
“whether the doctrine is subject to limiting principles.” Id. at
619.

Based

on

Grubbs

and

Caterpillar,

the

Seventh

Circuit

concluded:
the doctrine of derivative jurisdiction,
despite its perhaps improvident name, is best
understood as a procedural bar to the exercise
of judicial power. That is, the doctrine
creates a defect in removal, but is not an
essential ingredient to federal subject matter
jurisdiction. Because the district court would
have had jurisdiction over a hypothetical
complaint filed at the time it entered the
judgment now under review, the fact that the
state court lacked jurisdiction over the case
when it was removed has no significance.
Id. at 619.
The Rodas Court noted that in Caterpillar “the jurisdictional
inquiry turned on whether original jurisdiction could have been
exercised at the time of judgement [but] that does not answer the
antecedent

question

of

whether

the

doctrine

of

derivative

jurisdiction is essential to a court's subject matter jurisdiction
such that it cannot be cured.” 656 F.3d at 621.
First, the court noted that the acquisition of jurisdiction
upon removal speaks to “removal jurisdiction” not “the distinct
concept of federal court subject matter jurisdiction.” Id. at 62223. Removal is unlike federal question and diversity jurisdiction,

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“it is a means of bringing cases within federal courts’ original
jurisdiction into those courts.” Id. at 623 (quoting 14B Charles
Alan Wright, et al., Federal Practice and Procedure § 3721, at 27
(4th ed. 2009). Second, pursuant to Grubbs and Caterpillar, if
subject matter lies at the time the order of judgment under review
was entered, a court of appeals should disregard procedural defects
in the removal process. Id. “[A] ‘procedural’ defect is any defect
that does not go to the question of whether the case originally
could have been brought in federal district court.” Id. (quoting
Baris v. Sulpicio Lines, Inc., 932 F.2d 1540, 1544 (5th Cir.
1991)).
Third, and “more critically,” the Rodas Court noted that
subject matter jurisdiction, unlike the doctrine of derivative
jurisdiction, is unyielding. Id. In one of the earliest and
lengthiest descriptions of the doctrine of derivative jurisdiction
cited by the Supreme Court in Lambert Run, the court stated,
“I do not mean to say that we measure our jurisdiction wholly by
that of the state court, and that nothing can be adjudged here
which could not have been adjudged there; for cases can be well
imagined where this rule should be subject to qualification....”
Rodas, 656 F.3d at 624 (quoting Fidelity Trust Co. v. Gill Car
Co., 25 F.737 (C.C. Ohio 1885). The Rodas Court concluded that a
doctrine of such flexibility could not be a matter of subject
matter jurisdiction. Id.

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In Calhoun v. Murray, 507 F. App’x 251 (3d Cir. 2012), the
Third Circuit, in an unpublished case, found that its jurisdiction
on appeal was governed by Grubbs, “because ‘[t]he doctrine of
derivative jurisdiction, despite its perhaps improvident name, is
best understood as a procedural bar to the exercise of federal
judicial power. That is, the doctrine creates a defect in removal,
but is not an essential ingredient to federal subject matter
jurisdiction.’” 507 F. App'x at 256 (3d Cir. 2012) (quoting Rodas,
656 F.3d at 619; see also Morda v. Klein, 865 F.2d 782, 784 (6th
Cir. 1989); Foval v. First Nat'l Bank of Commerce in New Orleans,
841 F.2d 126, 129 (5th Cir. 1988); Sorosky v. Burroughs Corp., 826
F.2d 794, 800–01 (9th Cir. 1987)). While it is true that the
doctrine

of

derivative

jurisdiction

was

raised

on

appeal

in

Calhoun, the Third Circuit’s agreement with the Rodas Court, that
derivative jurisdiction creates a defect in removal but is not an
essential

ingredient

to

federal

subject

matter

jurisdiction,

implies that a defect in removal would not, at any time, by itself
deprive a federal court of subject matter jurisdiction. Such a
defect may be waived. See Korea Exchange Bank, New York Branch v.
Trackwise Sales Corp., 66 F.3d 46, 50 (3d Cir. 1995) (“the Supreme
Court clearly suggested [in Grubbs], even if it did not directly
hold, that it does not view the removal statute as imposing
independent jurisdictional restrictions on the federal courts.
Rather, in considering whether jurisdictional defects existed, the

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relevant

inquiry

is

whether

the

case

could

have

been

filed

originally in federal court”); see also id. (citing Allbritton
Communications Co. v. N.L.R.B., 766 F.2d 812, 820 (3d Cir. 1985)
(“citing Grubbs and reiterating that in determining whether a
defect is waivable, courts should consider whether the federal
court would have had original jurisdiction over the case if it had
initially been filed in federal court”), cert. denied, 474 U.S.
1081 (1986)).
Defendants

urge

this

Court

to

follow

Third

Circuit

precedential cases Witherow v. Firestone Tire & Rubber Co., 530
F.2d 160 (3d Cir. 1976); Stapleton v. $2,438,110, 454 F.2d 1210
(3d Cir. 1972); Gleason v. United States, 458 F.2d 171 (3d Cir.
1972); and Bradshaw v. General Motors Corp., 805 F.2d 110 (3d Cir.
1986).

Certainly, this Court is obligated to follow controlling

precedent.
First,

The cases, however, are distinguishable.
Stapleton

was

decided

before

Grubbs

and

did

not

consider whether the doctrine of derivative jurisdiction is a
removal defect that can be waived. Stapleton, 454 F.2d 1210.
Second, Gleason was decided two days after Grubbs and made no
mention of Grubbs nor did it discuss whether the doctrine of
derivative jurisdiction is a removal defect that can be waived.
458 F.2d 171. Third, Witherow, decided after Grubbs, is likewise
distinguishable. 530 F.3d 160. The Third Circuit in Witherow noted
that “a clear purpose of the derivative limitation—that federal

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courts not entertain, on removal, actions which the state courts
could

not

entertain

in

the

first

instance”

suggested

that

derivative jurisdiction is limited subject matter jurisdiction.
However, in Witherow, the state court lacked jurisdiction not
because the claim was exclusively federal but because the claim
asserted was barred by the statute of limitations. The court held:
that the district court could not grant
federal relief in this removed diversity case
which would have been dismissed as time-barred
had it remained in state court and the proper
limitations of actions defense been asserted
there as was presented here. Implicit in our
conclusion is that [28 U.S.C §] 1448 cannot be
utilized to breathe jurisprudential life in
federal court into a case legally dead in
state court.
530 F.2d at 168. The court further noted “we express no opinion on
what the result would have been if defendant had filed its removal
petition prior to the expiration of the statute of limitations.
That would be a very different case.” Id. at 169.
Lastly, in Bradshaw, the Third Circuit held that a federal
court did not gain jurisdiction upon removal of a Title VII claim
that was improperly filed in state court.

805 F.2d 110, 113 (3d

Cir. 1986).2 Although the court in Bradshaw concluded that the
Title VII claim must be dismissed, it did not suggest that the

2

Bradshaw was abrogated by Yellow Freight System, Inc. v.
Donnelly, 494 U.S. 820, 81 (1990), which held that federal courts
do not have exclusive jurisdiction over civil actions brought under
Title VII of the Civil Rights Act of 1964.

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federal court could not obtain jurisdiction over the claim either
by dismissal in state court and direct filing in federal court, or
by waiver of the removal defect. The court did not discuss Grubbs
and its progeny.
In this Court’s view, Bradshaw does not preclude application
of the implicit finding in Grubbs, later recognized in Calhoun,
that derivative jurisdiction is a removal defect and not an
essential

ingredient

in

subject

matter

jurisdiction.

Here,

Defendants waived the procedural defect because they created the
defect by removing the case to federal court rather than moving to
dismiss in state court for lack of jurisdiction. See Baggs, 179
U.S. at 209 (party waived any right to have cause tried in state
court by removing to federal court.)
Finally, the Court holds in the alternative, even if this
Court

agreed

with

Defendants’

position,

this

Court

would

conditionally dismiss the FTCA and APA claims based on derivative
jurisdiction. Dismissal would be conditional, permitting Plaintiff
to file an amended complaint in this action within 30 days,
asserting federal subject matter jurisdiction over his FTCA and
APA claims. See Brennan v. Kulick, 407 F.3d 603, 608 (3d Cir. 2014)
(complaint filed within statute of limitations but subsequently
dismissed without prejudice with conditions tolls the statute of
limitations).

Case 1:15-cv-00558-RMB-KMW Document 86 Filed 05/22/18 Page 20 of 20 PageID: 838

IV.

CONCLUSION
For the reasons discussed above, the Court denies Defendants’

partial motion to dismiss pursuant to Federal Rule of Civil
Procedure 12(h)(3). Alternatively, the Court would conditionally
dismiss Plaintiff’s FTCA and APA claims based on the doctrine of
derivative jurisdiction, but dismissal would be conditional in
that Plaintiff could file an amended complaint within 30 days of
dismissal, alleging subject matter jurisdiction over his FTCA and
APA claims pursuant to 28 U.S.C. § 1331.
An appropriate Order follows.
s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge
DATE: May 21, 2018