Colonial County Mutual Insurance Company v. United States of America

Filing 7

ORDER GRANTING 3 Motion to Dismiss for Lack of Jurisdiction. Signed by Judge Xavier Rodriguez. (aej)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
COLONIAL COUNTY MUTUAL
INSURANCE COMPANY,
Plaintiff,
v.
UNITED STATES,
Defendant.

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Civil Action No. SA-15-CV-917-XR

ORDER
On this day, the Court considered the Defendant’s Motion to Dismiss (docket no. 3).
After careful consideration, the Court will GRANT the motion.
BACKGROUND
This case arises out of an automobile accident. Docket no. 1 at 8. Plaintiff Colonial
County Mutual Insurance Company (“Colonial”) alleges that an employee for former Defendant
United States Postal Service, while driving a United States Postal Service (“USPS”) truck and
acting in the course and scope of her employment, failed to stop at a stop sign and collided with
the vehicle of Colonial’s insured, Gladys Smith (“Smith”). Id. This accident allegedly injured
Smith. Id. Smith’s medical expenses were paid by Colonial pursuant to an insurance agreement,
and Colonial now sues as subrogee for those expenses. Docket no. 2 at 1.
Colonial filed its original petition in the 285th Judicial District Court in Bexar County,
Texas, on October 2, 2015. Docket no. 1 at 5. The petition lists negligence as its sole cause of
action. Id. at 8. On October 22, 2015, USPS filed its Notice of Removal, pursuant to the Federal
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Tort Claims Act (FTCA) and 28 U.S.C. § 1442. Id. at 1. That same day, the United States of
America filed its Motion to Substitute the United States as Defendant and to Amend the Case
Caption. Docket no. 2. The Court granted the motion. Docket no. 6.
The United States filed a Motion to Dismiss for Lack of Jurisdiction on October 22,
2015. Docket no. 3. Colonial filed its response on November 6, 2015. Docket no. 4. On
November 10, 2015, the United States filed a reply. Docket no. 5. For the following reasons, the
Court will grant the motion.
ANALYSIS
The United States argues that the state court had no jurisdiction to consider this action,
and therefore under the derivative jurisdiction doctrine, this Court does not have subject matter
jurisdiction over this action either. Docket no. 3 at 3–5. The Court agrees.
To begin, the United States cannot be sued without its consent. United States v. Mitchell,
445 U.S. 535, 538 (1980). Only the sovereign can waive sovereign immunity. United States v.
Kubrick, 444 U.S. 111, 117–18 (1979). The FTCA—28 U.S.C. §§ 1346(b) and 2671–2689—is
the exclusive waiver of sovereign immunity for actions sounding in tort against the United
States, its agencies, and employees acting within their official capacity. In re Supreme Beef
Processors, Inc., 468 F.3d 248, 252 (5th Cir. 2006). The FTCA provides a vehicle for claimants
to sue the United States government for money damages for injury or loss of property caused by
the negligence of a federal employee acting within the course and scope of his or her
employment. See 28 U.S.C. § 1346(b) (2012). Federal district courts have exclusive jurisdiction
over such cases:
[T]he district courts, together with the United States District Court
for the District of the Canal Zone and the District Court of the
Virgin Islands, shall have exclusive jurisdiction of civil actions on
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claims against the United States, for money damages, accruing on
and after January 1, 1945, for injury or loss of property, or
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, under circumstances where
the United States . . .
Id. (emphasis added).
Additionally, under the derivative jurisdiction doctrine, when a case is removed from
state court to federal court, “the jurisdiction of the federal court is derived from the state court’s
jurisdiction.” Lopez v. Sentrillon Corp., 749 F.3d 347, 350 (5th Cir. 2014). If the state court did
not have jurisdiction to hear the case, the federal court does not acquire jurisdiction—even if the
federal court would have had jurisdiction if the suit were originally brought in federal court.
State of Minnesota v. United States, 305 U.S. 382, 389 (1939); Lopez, 749 F.3d at 350. While
Congress has abolished the doctrine of derivative jurisdiction for cases removed under 28 U.S.C.
§ 1441(e), the Fifth Circuit has held that this abrogation does not extend to removals under 28
U.S.C. § 1442. Lopez, 749 F.3d at 351 (“The doctrine therefore continues to apply to cases
removed pursuant to other statutes such as 28 U.S.C. § 1442, as in the instant case.”) (internal
citation omitted).
Because Colonial alleges that their insured was injured by a federal government
employee acting within the scope of her employment on behalf of USPS, Colonial must proceed
with this action under the FTCA. In re Supreme Beef Processors, Inc., 468 F.3d at 252. Since
only federal courts have subject matter jurisdiction in an FTCA case, when Colonial filed the suit
in the 285th Judicial District Court in Bexar County, Texas, that court did not have subject
matter jurisdiction over the case. See Lopez, 749 F.3d at 350. When the United States removed
the case to federal court, it did so under 28 U.S.C. § 1442. Docket no. 1 at 2 (“This Notice of

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Removal is made pursuant to the applicable provisions of 28 U.S.C. § 1442. . .”). As a result, the
doctrine of derivative jurisdiction applies. Since the state court did not have subject matter
jurisdiction, this Court does not have subject matter jurisdiction either—even though it would if
Colonial had originally filed its lawsuit in this Court. As a result, the Court has no choice but to
dismiss the case.
Colonial argues that because it had “consent to file suit against Defendant” and that the
state filing was an “error,” the Court should deny the motion. Docket no. 4 at 2. Specifically,
Colonial points to a letter sent by USPS on July 22, 2015, that instructs Colonial that it has six
months to file suit. Id. at 3. Additionally, Colonial maintains that the suit could have been
removed under 28 U.S.C. § 1441(c)(1)(a), and thus, derivative jurisdiction should not be applied
in this case. Id. at 4. The Court disagrees.
First, the July 22, 2015, letter sent to Colonial clearly instructs the reader that the law
requires a claimant to file suit in federal court. Docket no. 4 at 33 (“In accordance with 28
U.S.C. § 2401(b) and 39 C.F.R. 912.9(a), if dissatisfied with the Postal Service’s final denial of
an administrative claim, a claimant may file suit in a United States District Court no later than
six months after the date of the mailing of this letter. . .”) (emphasis added). Thus, even if the
letter is consent to suit, it could not be construed as consent to suit in state court. Second, while
Colonial argues the suit could have been removed under § 1441(c)(1)(a), that is not the case—§
1441(c)(1)(a) allows for removal of a case that contains both a claim that warrants federal
question jurisdiction and a state law claim. 28 U.S.C. § 1441(c)(1)(a) (2012). This case has no
such state claim. Additionally, even if the suit could have been removed under that subsection or
a different subsection of § 1441, it was not. It was removed under § 1442. Docket no. 1 at 2.

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The Fifth Circuit has made clear that when a FTCA case is removed under § 1442, derivative
jurisdiction applies and the court must dismiss the case. Lopez, 749 F.3d at 351.
Finally, the United States urges this Court to dismiss the case with prejudice. However,
dismissals for lack of jurisdiction are not on the merits, and are thus without prejudice. See, e.g.,
Warnock v. Pecos County, 88 F.3d 341, 343 (5th Cir. 1996); see also Verret v. Elliot Equip.
Corp., 734 F.2d 235, 238 (5th Cir. 1984).
CONCLUSION
Defendant’s Motion to Dismiss for Lack of Jurisdiction (docket no. 3) is GRANTED and
this case is DISMISSED WITHOUT PREJUDICE for lack of subject matter jurisdiction. The
Court ORDERS the Clerk’s Office to enter judgment accordingly and to close this case.
It is so ORDERED.
SIGNED this 23rd day of November, 2015.

XAVIER RODRIGUEZ
UNITED STATES DISTRICT JUDGE

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