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Ajabu v. Harvey

United States District Court, S.D. Indiana, Indianapolis Division

July 26, 2018

MMOJA AJABU, Plaintiff,
v.
HEATHER HARVEY, Defendant.

          ORDER

          Hon. Jane Magnus-Stinson, Chief Judge

         This 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].

         I. Background

         As set 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.]

         On January 25, 2018, in the course of seeking a protective order against Mr. Ajabu, [1] Mr. Ajabu alleges that Ms. Harvey made a false statement by claiming that Mr. Ajabu had stalked her. [Filing No. 1-1 at 2.]

         As a 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.]

         On 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 review.

         II. Discussion

         Prior 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)).

         In her 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.]

         28 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)).

         Prior 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.

         In 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, where appropriate.

         A. The Federal ...


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