Keefe et al v. Social Security Administration et al

Filing 20

ORDER signed by Judge Lynn Adelman on 07/25/2018 granting 17 Motion to Dismiss. (cc: all counsel, plaintiffs) (lls)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
BRADLEY J. SCHMITZ, et al.,
Plaintiffs,
v.

Case No. 18-C-0409

MARQUETTE COUNTY CHILD SUPPORT
IV-D AGENCY, et al.,
Defendants.

DECISION AND ORDER
Four individuals, proceeding pro se, filed an action in state court in Marquette
County, Wisconsin, challenging various governmental practices relating to child-support
enforcement. Most of the named defendants are state and county officials or agencies.
However, one of the plaintiffs, Michael O’Grady, asserts a claim against an official of the
Social Security Administration that he identifies as John or Jane Doe.

After being

served with the complaint, the Social Security Administration removed the action to this
court under 28 U.S.C. § 1442. Before me now is the federal defendant’s motion to
dismiss the claim against him or her.
The plaintiffs’ complaint, including exhibits, is 79 pages long. However, only a
single paragraph relates to the claim against the federal defendant. (Compl. p. 10,
¶ 23.) In this paragraph, O’Grady alleges that, in March 2009, an unidentified employee
of the Social Security Administration began withholding money from O’Grady’s Social
Security benefit payments pursuant to a state-court garnishment order relating to

O’Grady’s unpaid child-support obligations.1

O’Grady alleges that the defendant

continued to withhold money from his payments after O’Grady provided him or her with
a copy of a court order dated May 6, 1999, dismissing the underlying child-custody
case.2
The federal defendant moves to dismiss O’Grady’s claim against him under the
doctrine of derivative jurisdiction.

Under this doctrine, a federal court’s removal

jurisdiction is derivative of that of the state court. See Minnesota v. United States, 305
U.S. 382, 388–89 (1939). If the state court in which the action was originally filed
lacked subject matter jurisdiction over the action, the federal court will acquire none
upon removal, even if the federal court would have had jurisdiction if the case had been
originally brought in federal court. Id. Here, the federal defendant argues that the
Marquette County Circuit Court lacked subject-matter jurisdiction to hear O’Grady’s
claim against him or her, and that therefore this court must dismiss the claim for lack of
subject-matter jurisdiction.

1

Although not alleged in the complaint, it is clear that the Social Security Administration
withheld the funds in accordance with 42 U.S.C. § 659(a), which provides that certain
moneys owed to a person by the United States (including some Social Security
benefits) may be garnished to pay child support or alimony.
2

O’Grady attaches both the 2009 garnishment order and the May 6, 1999 order to his
complaint. The garnishment order appears to be “regular on its face,” see ECF No. 1-2
at p 74 of 79, and thus the federal defendant is almost certainly entitled to immunity
from any claim O’Grady might be attempting to assert. See 42 U.S.C. § 659(f)(1)
(providing that federal disbursement officer is not liable with respect to payments made
pursuant to legal process regular on its face). Also, the May 1999 order does not
suggest that O’Grady is not liable for child support. Instead, that order was entered
after the county sought to voluntarily dismiss its own child-support case so that the
issue of child support could be litigated as part of the O’Gradys’ divorce case. See ECF
No. 1-2 at p. 60 of 79. The Social Security Administration’s receiving a copy of the 1999
order would not have affected its obligation to comply with a state-court garnishment
order issued in 2009.

2

The federal defendant filed his or her motion to dismiss on June 18, 2018, and
served it by mail on O’Grady on June 19, 2018. Under the local rules of this court,
O’Grady had 21 days to file a response to the motion. See Civil L.R. 7(b) (E.D. Wis.
2010, rev. 2015). That time has expired, yet O’Grady has not filed a response to the
motion. Under the local rules, O’Grady’s failure to file a response to the motion is
sufficient cause for the court to grant it.

See Civil L.R. 7(d).

Moreover, because

O’Grady has not filed a response to the motion, he has not identified any basis on which
the state court might have exercised jurisdiction over his claim against the federal
defendant.

For these reasons, I will dismiss O’Grady’s claims against the federal

defendant for lack of subject matter jurisdiction.3 I will remand the remainder of the
action, i.e., the plaintiffs’ claims against the defendants other than the employee of the
Social Security Administration, back to the state court. See Williams v. City of Atlanta,
794 F.2d 624, 628 (11th Cir. 1986) (noting that federal court may remand case removed
to federal court under 28 U.S.C. § 1442 after dismissing claim against federal
defendant).
For the reasons stated, IT IS ORDERED that the federal defendant’s motion to
dismiss for lack of jurisdiction (ECF No. 17) is GRANTED. O’Grady’s claim against the

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I have considered warning O’Grady that I would treat the defendant’s motion as
unopposed if he did not file a response. However, as described in more detail in the
defendant’s brief (ECF No. 18), O’Grady has a long history of frivolous litigation in both
state and federal courts. He is currently barred from filing papers in any court in the
Seventh Circuit until he pays the filing fees that he has already incurred in his
“campaign of frivolous litigation.” O’Grady v. Habeck, No. 11-3881, ECF No. 14 (7th
Cir. April 24, 2012). Like the present suit, O’Grady’s prior frivolous suits arose out of his
child-support obligations. In light of O’Grady’s track record of frivolous litigation, I
conclude that it is appropriate to dismiss his federal claim immediately based on his
failure to respond to the motion to dismiss. Encouraging him to file a response to the
motion would only invite further frivolous litigation.

3

employee of the Social Security Administration identified as John or Jane Doe is
dismissed for lack of subject-matter jurisdiction.
IT IS FURTHER ORDERED that the remainder of this action is REMANDED to
the Marquette County Circuit Court.
Dated at Milwaukee, Wisconsin, this 25th day of July, 2018.

s/Lynn Adelman_______
LYNN ADELMAN
District Judge

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