United States District Court, S.D. Indiana, Indianapolis Division
Jane Magnus-Stinson, Chief Judge
case arises out of an interaction between Heather Harvey, a
staffer in the Office of U.S. Representative André
Carson, and Mmoja Ajabu, one of Representative Carson's
constituents. Mr. Ajabu, proceeding pro se, alleges
that Ms. Harvey committed battery, defamation, and
intentional and negligent infliction of emotion distress. The
matter was removed to this Court on the basis of 28 U.S.C.
§ 1442(a)(4) as a suit against an officer of the House
of Representatives. Presently pending before the Court are
Ms. Harvey's Motion to Dismiss Mr. Ajabu's Complaint,
[Filing No. 4], and Mr. Ajabu's Motion to Remand
his case to state court, [Filing No. 7].
forth in Mr. Ajabu's Complaint, on December 19, 2017, Mr.
Ajabu engaged in a conversation with Ms. Harvey at an event
hosted by the Indianapolis Mayors' Advisory Council for
Veterans. [Filing No. 1-1 at 2.] At some point
during the conversation, Ms. Harvey touched Mr. Ajabu against
his will. [Filing No. 1-1 at 2.]
January 25, 2018, in the course of seeking a protective order
against Mr. Ajabu,  Mr. Ajabu alleges that Ms. Harvey made a
false statement by claiming that Mr. Ajabu had stalked her.
[Filing No. 1-1 at 2.]
result of the foregoing, on April 3, 2018, Mr. Ajabu filed
suit in Marion County Superior Court, claiming that that Ms.
Harvey committed: (1) battery, (2) defamation, (3)
intentional infliction of emotional distress, and (4)
negligent infliction of emotional distress. [Filing No.
1-1 at 2-3.] On April 24, 2018, Ms. Harvey removed the
matter to this Court. [Filing No. 1.]
April 27, 2018, Ms. Harvey filed a Motion to Dismiss,
[Filing No. 4], and on May 22, 2018, Mr. Ajabu filed
a Motion to Remand the case to state court, [Filing No.
7]. Both Motions are now ripe for the Court's
to turning to the merits of Mr. Ajabu's Complaint, the
Court must first consider jurisdiction. See Steel Co. v.
Citizens for a Better Env't, 523 U.S. 83, 94-95
(1998) (“The requirement that jurisdiction be
established as a threshold matter ‘spring[s] from the
nature and limits of the judicial power of the United
States' and is ‘inflexible and without
exception'”) (quoting Mansfield, C. &
L.M.R. Co. v. Swan, 111 U.S. 379, 382 (1884)).
Notice of Removal, Ms. Harvey stated that she is “a
federal employee currently serving as the Veterans Caseworker
for the Honorable André Carson, U.S. Representative
for the seventh congressional district of Indiana” and
that removal is appropriate under 28 U.S.C. §1442.
[Filing No. 1 at 1 (citing 5 U.S.C. §
2105(a)(1)(B)).] Ms. Harvey alleges that removal of the case
was appropriate under § 1442 because: (1) the claims
brought against her “allege injuries as a result of
actions taken by Ms. Harvey during discharge of her official
duties, ” and (2) she can “raise one or more
colorable federal defenses to the claims, including (a)
sovereign immunity, and (b) failure to exhaust administrative
remedies.” [Filing No. 1 at 3-4.]
U.S.C. § 1442, commonly known as the “federal
officer removal statute, ” provides that a civil action
“that is commenced in a State court” and
“that is against or directed to” an officer of
the United States “may be removed by them to the
district court of the United States for the district and
division embracing the place wherein it is pending.” 28
U.S.C. § 1442(a). The Seventh Circuit has stated that
the federal officer removal statute allows removal when:
“(1) the defendant is a ‘person' within the
meaning of the statute, (2) the defendant is ‘act[ing]
under' some entity of the United States, (3) the
defendant is acting under color of federal authority, and (4)
the defendant has a colorable federal defense.”
Panther Brands, LLC v. Indy Racing League, LLC, 827
F.3d 586, 589-90 (7th Cir. 2016) (quoting Ruppel v. CBS
Corp., 701 F.3d at 1180-81 (7th Cir. 2012)).
to determining whether removal was proper under § 1442,
however, the Court must determine a separate jurisdictional
question concerning Mr. Ajabu's claims. In 1922, the
Supreme Court described the principle that has since become
known as “derivative jurisdiction, ” stating that
where a state court “was without jurisdiction, ”
the district court “could not acquire jurisdiction over
them by the removal” because the “jurisdiction of
the federal court on removal is, in a limited sense, a
derivative jurisdiction.” Lambert Run Coal Co. v.
Baltimore & O.R. Co., 258 U.S. 377, 382 (1922).
Therefore, under the doctrine of derivative jurisdiction,
where “the state court lacks jurisdiction of 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.” Id.
determining whether this Court's jurisdiction is affected
by derivative jurisdiction, the parties' briefs are of
limited assistance to the Court, as they do not discuss the
issue. However, peppered throughout the briefs are relevant
arguments and discussions which the Court will consider,
The Federal ...