United States District Court, N.D. Indiana
OPINION AND ORDER
THERESA L. SPRINGMANN CHIEF JUDGE UNITED STATES DISTRICT
matter is before the Court on the Motion to Dismiss [ECF No.
7], filed by the United States of America on October 17,
2016. For the reasons set forth below, the Court grants the
se Plaintiff, Cassandra Axson, originally filed this case on
September 1, 2016, in the Allen Superior Court Small Claims
Division. The Plaintiff alleges that she was harmed because
the Defendant, Jorge Ortiz, was negligent in connections with
actions he took within the scope of his employment. (Notice
of Claim, ECF No. 4.) On September 23, 2016, the Defendant
filed a Notice of Removal [ECF No. 1] pursuant to 28 U.S.C.
§ 1442. On October 5, 2016, the United States filed a
Notice of Substitution [ECF No. 5], substituting the United
States of America in place of Jorge Ortiz pursuant to the
Federal Torts Claims Act (FTCA), 28 U.S.C. § 2679.
October 17, 2016, the Government filed the Motion to Dismiss,
arguing that the case should be dismissed because the Allen
Superior Court Small Claims Division lacked subject- matter
jurisdiction over any claims for monetary damages arising out
of the alleged negligence of a federal employee and thus,
this Court did not acquire derivative jurisdiction from the
state court. In the alternative, the Government argues that
the Plaintiff has failed to state a claim upon which relief
may be granted, and that there has been no service of process
in this case. On October 12, 2016, United States Magistrate
Judge Susan Collins issued an Order [ECF No. 6] directing the
Plaintiff to file a response to the Motion on or before
November 3, 2016, pursuant to Lewis v. Faulkner, 689
F.2d 100 (7th Cir. 1982) and Timms v. Frank, 952
F.2d 281 (7th Cir. 1992). To date, the Plaintiff has not
filed a response to the Motion to Dismiss.
December 5, 2016, the Plaintiff submitted an additional
filing [ECF No. 14], which she also submitted in connection
with another parallel litigation she filed on the same issue
against employees at the Fort Wayne Social Security Office.
That case has since been dismissed without prejudice. See
Axson v. Reynolds, No. 1:16-CV-322, 2017 WL 495694 (N.D.
Ind. Feb. 7, 2017). The Plaintiff's additional filing
contains several attachments in furtherance of her argument
that she has not received her Social Security Disability
Insurance (SSDI) benefits, including her bank record and a
record of a complaint she made with the Fort Wayne Social
Court must first consider the threshold jurisdictional issue.
“Jurisdiction of the federal court on removal is, in a
limited sense, a derivative jurisdiction. Where the state
court lacks jurisdiction of the subject matter or of the
parties, the federal court acquired none, although in a like
suit originally brought in a federal court it would have had
jurisdiction.” Axson, 2017 WL 495694, at *2
(quoting Minnesota v. United States, 305 U.S. 382,
389 (1939)); see also Abu- Humos v. First Merit
Bank, No. 15-CV-6961, 2015 WL 7710374, at *1 (N.D. Ill.
Nov. 30, 2015).
Plaintiff's claims are difficult to decipher, but they
appear to stem from an interaction she had with Mr. Ortiz
regarding the termination of her SSDI payments and her
subsequent dissatisfaction with the efforts of the Office of
the United States Senator Joe Donnelly to intercede of her
behalf. At the time of the interaction, Mr. Ortiz was an
employee at the Office of Senator Donnelly.
Mr. Ortiz has been certified [ECF No. 5-1] under the FTCA as
acting within the scope of his employment, the
Plaintiff's claim of negligence is really against the
United States. It is well established that “[t]he
United States, as sovereign, is immune from suit save as it
consents to be sued, ” and hence may be sued only to
the extent that it has waived sovereign immunity by enacting
a statute consenting to the suit. United States v.
Sherwood, 312 U.S. 584, 586 (1941). “[T]he FTCA is
a limited waiver of the United States' sovereign
immunity” and it “is the exclusive remedy for any
tort claim resulting from the negligence of a government
employee acting within the scope of employment.”
Couch v. United States, 694 F.3d 852, 856 (7th Cir.
2012); see also 28 U.S.C. §§ 1346(b),
2679(a)-(b)(1); Feres v. United States, 340 U.S.
135, 140 (1950).
an FTCA claim must be initiated in federal court. 28 U.S.C.
§ 1346(b)(1); Alinsky v. United States, 415
F.3d 639, 643 (7th Cir. 2005) (stating that the “FTCA
grants federal courts jurisdiction over” damages claims
against the United States for negligence by a government
employee); Midwest Knitting Mills, Inc. v. United
States, 950 F.2d 1295, 1297 (7th Cir. 1991) (“The
FTCA provides that federal district courts ‘shall have
exclusive jurisdiction of civil actions on claims against the
United States, for money damages . . . .'”) (citing
28 U.S.C. § 1346(b)); Abu-Humos, 2015 WL
7710374, at *1 (holding “while common law torts are
cognizable under the FTCA, state courts lack jurisdiction
over such claims.”). When Congress attaches conditions
to legislation waiving the sovereign immunity of the United
States, “those conditions must be strictly observed,
and exceptions thereto are not to be implied.”
Lehman v. Nakshian, 453 U.S. 156, 161 (1981)
(internal quotations and citations omitted).
exclusive jurisdiction under the FTCA exists only in federal
court, the Allen Superior Court Small Claims Division lacked
subject-matter jurisdiction over any claims for money damages
arising out of the alleged negligence of the federal
employees, and thus, upon removal, this Court acquired no
derivative jurisdiction from the state court. See Rodas
v. Seidlin, 656 F.3d 610, 615-16 (7th Cir. 2011);
Edwards v. U.S. Dep't of Justice, 43 F.3d 312,
316 (7th Cir. 1994); Fedorova v. Wells Fargo &
Co., No. 16-C-1810, 2016 WL 2937447, at *2 (N.D. Ill.
May 20, 2016); Abu-Humos, 2015 WL 7710274, at *1-2.
Rodas recognized a limited exception for the
derivative jurisdiction rule for removals under §1442
where a motion to dismiss is made after removal, but only
where the case has already been decided on the merits.
Rodas, 656 F.3d at 619-25. Here, the case has not
been decided on the merits, and dismissal without prejudice
is the proper result. See Abu-Humos, 2015 WL
7710374, at *n.1 (“[D]ismissal is strongly indicated
when the issue is raised before any substantive matters have
been addressed.”). Accordingly, the Court dismisses the
action without prejudice.
dismissal is without prejudice to the Plaintiff filing
another complaint in a court with proper original
jurisdiction, the Plaintiff is cautioned that any subsequent
complaint should state a valid cause of action, satisfy any
exhaustion requirements, comply with Federal Rule of Civil
Procedure Rule 8 in stating a short and plain statement for
relief, and have proper service. See Foster v.
DeLuca, 545 F.3d 582, 584 (7th Cir. 2008)
(“District courts routinely do not terminate a case at
the same time that they grant a defendant's motion to
dismiss; rather, they generally dismiss the plaintiff's
complaint without prejudice and give the plaintiff at least
one opportunity to amend her complaint.”); Barry
Aviation, Inc. v. Land O'Lakes Mun. Airport
Comm'n, 377 F.3d 682, 687 (7th Cir. 2004)
(“The better practice is to allow at least one
amendment regardless of how unpromising the initial pleading