Hoeller v. Social Security Administration

Filing 9

DECISION AND ORDER signed by Judge Lynn Adelman on 4/30/15 granting 4 Motion to Dismiss for lack of subject matter jurisdiction. The Clerk of Court shall enter final judgment. (cc: all counsel, via USPS to plaintiff) (dm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

TIMOTHY HOELLER,
Plaintiff,
v.

Case No. 15-C-0253

SOCIAL SECURITY ADMINISTRATION,
Defendant.

DECISION AND ORDER
Plaintiff Timothy Hoeller filed a complaint in a Wisconsin small-claims court against
the Social Security Administration (“SSA”), which the SSA subsequently removed to this
court under 28 U.S.C. § 1442(a). The SSA subsequently moved to dismiss the plaintiff’s
complaint for lack of subject matter jurisdiction. The SSA argues that claims raised in the
complaint arise under the Federal Tort Claims Act, and that therefore this case is a civil
action over which the federal courts have exclusive jurisdiction.

See 28 U.S.C. §

1346(b)(1). The SSA contends that because the state small-claims court did not have
jurisdiction over this case, the doctrine of “derivative jurisdiction” requires that I dismiss the
case for lack of subject matter jurisdiction, even though, by virtue of the removal under
§ 1442(a), the case is now in federal court.
The plaintiff has filed a letter in which he states that he does not intend to respond
to the SSA’s motion to dismiss and in which he indicates that he is no longer interested in
“go[ing] after this form of negligence” by the SSA. See ECF No. 6. Thus, I consider the
SSA’s motion unopposed and will grant it for that reason. See Civil L.R. 7(d) (failure to file

a memorandum in opposition to a motion is sufficient cause for the Court to grant the
motion).
Accordingly. IT IS ORDERED that the SSA’s motion to dismiss for lack of subject
matter jurisdiction is GRANTED. The Clerk of Court shall enter final judgment.
Dated at Milwaukee, Wisconsin, this 30th day of April, 2015.
s/ Lynn Adelman
____________________________________
LYNN ADELMAN
District Judge

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