RAY v. DENNIS ALLOCCO, ET AL.

Filing 5

REPORT AND RECOMMENDATIONS re 3 Motion to dismiss filed by DENNIS ALLOCCO, ET AL. Objections, if any, to R&R due by 9/3/2013. Signed by Magistrate Judge Steven C. Mannion on 8/19/2013. (nr, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
NOT FOR PUBLICATION

SIMONE RAY,

Civil Action No.
2:12-CV-5698-ES-SCM

Plaintiff,
v.

REPORT AND RECOMMENDATION ON
DEFENDANT’S MOTION TO DISMISS
FOR LACK OF JURISDICTION
[D.E. 3]

DENNIS ALLOCCO, et.al.,
Defendants.

REPORT AND RECOMMENDATION
STEVEN C. MANNION, United States Magistrate Judge.
I.

INTRODUCTION
Before the Court is defendant United States of America’s

(“Defendant”) motion pursuant to Federal Rule of Civil Procedure
12(b)(1)

to

dismiss

plaintiff

Simone

Ray’s

(hereinafter

“Plaintiff”) complaint for lack of jurisdiction.

Pursuant to

Local Civil Rule 72.1(a)(2), the Honorable Esther Salas, United
States District Judge, has referred the instant motion to the
undersigned for report and recommendation.

Having considered

the motion record, and for the reasons set forth herein, it is
respectfully recommended that Defendant’s Motion to dismiss be
granted.

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II.

BACKGROUND1

The facts have not been disputed.

This case arises from

the loss of a package left by the United States Postal Service
for plaintiff Simone Ray.

On July 27, 2012, Plaintiff received

an electronic notification that a package from “Honey B Gold”
had been sent out “priority mail” to her that day. (D.E. 1-3,
Complaint at 3).

The Complaint further alleges that on July 28,

2012 at 11:30 p.m., Plaintiff checked her mailbox, but did not
find the package or a notification informing her that the United
States Postal Service had attempted delivery or left the package
in the hallway. (Id.)
tracking

information

On July 31, 2012, Plaintiff checked her
and

learned

that

the

package

delivered on July 28, 2012 at 1:09 p.m. (Id.)

had

been

Plaintiff was not

at home and no one else was in her apartment when the package
was

delivered.

(Id.)

The

contents

were

valued

at

$328.00.

(D.E. 1-3, Summons and Complaint).
On about August 23, 2012, Plaintiff filed her Complaint in
the Union County Small Claims Court.
Complaint).
on

September

(D.E. 1-3, Summons and

The United States Attorney’s Office filed a notice
20,

2012,

removing

the

case

to

federal

court

pursuant to 28 U.S.C. § 1442(a)(1) and § 2679(d)(2).

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At this stage of the proceedings we are required to accept the
facts alleged in the Amended Complaint as true.
2

Plaintiff has not filed opposition to the removal, has not
moved to remand, and has not prosecuted her claim in this Court
in any way.

Oral argument was scheduled for August 16, 2013,

but Plaintiff did not appear and has not since contacted the
Court.

The

efforts

of

counsel

and

the

Court

to

contact

Plaintiff were placed on the record in lieu of oral argument.

III. Discussion
Defendant asserts three arguments in support of dismissal.
See (D.E. 3-4, Defendant’s Brief).

The Court need not address

each of these arguments to resolve this motion.

A. Doctrine of Derivative Jurisdiction
Pursuant to the doctrine of derivative jurisdiction, “[i]f
the state court lacks jurisdiction over 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); see also Arizona v. Manypenny, 451 U.S. 232, 242 n. 17
(1981).

The

dismissal

of

doctrine’s
removed

application

actions

that

“often

were

[results]

within

the

in

the

exclusive

jurisdiction of the federal courts because the state court where
the action was filed lacked jurisdiction.” Palmer v. City Nat’l
Bank of W. Va., 498 F.3d 236, 244 (4th Cir. 2007).
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Congress amended the general removal statute, 28 U.S.C. §
1441,

in

1985

and

2002,

to

preclude

the

application

of

the

doctrine of derivative jurisdiction in cases removed under that
provision.

See

Palmer,

498

F.3d

at

245-46.

That

abrogation,

however, did not extend to cases removed under 28 U.S.C. § 1442,
which allows removal where the United States has been sued in
state court. See Turturro v. Agusta Aerospace Corp., No. 102894, 2010 WL 3239199, at *2-3 (E.D. Pa. Aug. 13, 2010); Bender
v. HUD, No. 09-5599 (RMB/KMW), 2010 WL 605741, at *1 n.2 (D.N.J.
Feb. 19, 2010); Pleasant Gardens Realty Corp. v. H. Kohnstamm &
Co., Inc., No. 08-5582, 2009 WL 2982632 at *6 n.12 (D.N.J. Sept.
10, 2009).

Thus, federal courts continue to dismiss cases under

the doctrine in actions removed under 28 U.S.C. § 1442(a)(1).
See e.g., Palmer, 498 F.3d at 248-49; Turturro, 2010 WL 3239199,
at *3; Pleasant Garden Realty Corp., 2009 WL 2982632 at *6-7;
Scoratow v. Smith, No. 02:08-cv-1576, 2009 WL 890575, at *4
(W.D. Pa. Mar. 7, 2009) (holding that “it appears from the great
weight

of

jurisprudence”

that

“the

derivative

jurisdiction

doctrine is still viable with respect to cases removed pursuant
to 28 U.S.C. § 1442(a)”) (internal citation and quotation marks
omitted).
The Court therefore agrees that the doctrine requires that
Plaintiff’s Complaint be dismissed for lack of subject matter
jurisdiction.

There

is

no

statutory
4

waiver

of

sovereign

immunity that would have permitted Plaintiff to prosecute her
claims against the United States in state court. See CNA v.
United States, 535 F.3d 132, 140 (3d Cir. 2008) (noting that
federal

courts

have

exclusive

jurisdiction

of

tort

claims

brought against the United States); Turturro v. Agusta Aerospace
Corp., No. 10-2894, 2010 WL 3239199, at *2 (E.D. Pa. Aug. 13,
2010) (noting that FTCA “vests exclusive jurisdiction in the
federal district courts over civil claims for damages arising
out of negligent acts of federal employees acting within the
scope of their employment”).

Because Congress did not permit

plaintiff to assert her claims against the United States or its
employees in state court, this Court is without jurisdiction to
consider those claims upon removal.

Consequently, this case

should be dismissed.

B. Federal Rule of Civil Procedure 41(b)
Additionally, the Complaint in this matter may be dismissed
by

the

District

Court

pursuant

to

Federal

Rule

of

Civil

Procedure 41(b) for Plaintiff’s failure to prosecute her claim.
Federal Rule of Civil Procedure 41(b) allows a court to dismiss
an action for failure to “prosecute or to comply with [the]
rules or a court order.” Fed.R.Civ.P. 41(b). In Poulis v. State
Farm Fire & Cas. Co., the Court for the Third Circuit outlined

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six factors that the courts must consider in determining whether
dismissal with prejudice is warranted:
(1) the extent of the party's personal
responsibility; (2) the prejudice to the
adversary caused by the failure to meet
scheduling orders and respond to discovery;
(3) a history of dilatoriness; (4) whether
the conduct of the party or the attorney was
willful or in bad faith; (5) the
effectiveness of sanctions other than
dismissal, which entails an analysis of
alternative sanctions; and (6) the
meritoriousness of the claim or defense.
Poulis v. State Farm Fire & Cas. Co., 747 F.2d 863, 868 (3d Cir.
1984).

Here, Plaintiff filed this action pro se in Superior

Court and has taken no action to communicate with the Court or
prosecute the case since it has been removed.

Dismissal is

appropriate.

C. Uncontested Motion
Federal Rule of Civil Procedure 1 prescribes that the rules
governing civil actions “be construed and administered to secure
the just, speedy, and inexpensive determination of every action
and proceeding.”

Therefore, a motion that has not been opposed

may be granted as uncontested if doing so secures the just,
speedy, and inexpensive determination of an action or
proceeding.

6

Local Civil Rule 7.1 requires that motions be made on at
least 24-days notice. L.Civ.R. 7.1(a).
motion on September 20, 2012.

Defendant filed its

(D.E. 3).

Opposition to any

motion is due at least 14 days prior to the original return
date, unless the Court otherwise orders or an automatic
extension is obtained. L.Civ.R. 7.1(d)(2).

The Court

established deadline for the motion to be decided on the papers
was October 15, 2012.

Plaintiff did not oppose the motion or

request an extension of time to respond.
properly considered unopposed.

The motion was then

Moreover, Plaintiff has taken no

action to oppose the motion in eleven months and did not appear
for oral argument.
The motion is not offensive and the relief requested is not
unjust.

The motion will for all of the foregoing reasons be

granted as uncontested.
IV.

CONCLUSION

For

the

reasons

articulated

herein,

the

undersigned

recommends that defendant’s motion be granted as uncontested and
Plaintiff’s Complaint be dismissed for lack of subject matter
jurisdiction and failure to prosecute.

Defendant’s additional

arguments for dismissal should be denied as moot.

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The parties have fourteen days to file and serve objections
to this Report and Recommendation pursuant to 28 U.S.C. § 636
and L. Civ. R. 71.1(c)(2).
The Clerk of the Court shall mail a copy of this report and
recommendation to the plaintiff at the address below.

8/19/2013 4:28:48 PM

Date: August 19, 2013
c:
All parties
Simone Ray
224 West 2nd Ave.
Apr. C10
Roselle, NJ 07203

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