Hall v. Souder

          OPINION AND ORDER

          THERESA L. SPRINGMANN CHIEF JUDGE

         On July 6, 2018, Defendant United States Postal Service (USPS) filed for removal from the Steuben Circuit Court to the Northern District of Indiana, pursuant to 28 U.S.C. §§ 1442 and 2679 [ECF No. 1]. Subsequently, Defendant USPS filed a Motion to Dismiss for lack of Jurisdiction, and Failure to State a Claim, or Alternatively Summary Judgment [ECF No. 10]. The Plaintiffs have responded [ECF No. 20], and Defendant USPS replied [ECF No. 21]. The other Defendants, Mark Souder, Pitney Bowes, Inc., and Frank Nester and Nester Construction, have each filed Responses to the Motion to Dismiss as well, requesting that if the Court grants Defendant USPS's Motion, the Court allow the other Defendants to name the Defendant USPS as a “nonparty Defendant” for purposes of considering fault [ECF Nos. 16, 18, and 19].

         BACKGROUND

         On October 19, 2017, the Plaintiffs filed their initial Complaint against Defendants Mark Souder and Pitney Bowes in the Dekalb Superior Court, Dekalb County, Indiana. On December 28, 2017, the Plaintiffs filed their Motion to Amend the Complaint, adding Defendant USPS. On January 10, 2018, the Plaintiffs filed a Second Motion to Amend Complaint for Damages, adding Frank Nester and Nester Construction as Defendants. Before the Motions to Amend were granted, on May 11, 2018, the case was transferred to the Steuben Circuit Court, Steuben County, Indiana. The Steuben Circuit Court ordered Plaintiffs to file an amended complaint, and on June 18, 2018, Plaintiffs filed an Amended Complaint for Damages, which named the USPS as a Defendant, and a Second Amended Complaint for Damages adding Defendants Frank Nester and Nester Construction. The Court ordered that Defendant USPS be served by certified mail with a copy of the amended complaint and a summons from the Steuben Circuit Court.

         The Plaintiffs allege that Kathy Hall, while on premises of Defendants Mark Souder, USPS, and/or Pitney Bowes, Inc., slipped and fell on ice. The Plaintiffs further allege that Kathy Hall sustained injuries for which she seeks damages. The Plaintiffs further allege that, because of Kathy Hall's injuries, Clifford Hall lost the services and consortium of his wife, for which he seeks damages.

         Defendant USPS removed the action on July 6, 2018, pursuant to 28 U.S.C. §§ 1442 and 2679. Defendant USPS moved to dismiss the action, arguing that the Court has no jurisdiction.

         STANDARD OF REVIEW

         The Court must first consider the threshold jurisdictional issue before reaching the merits of the case. “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 v. Reynolds, 1:16-CV-322, 2017 WL 495694, at *2 (N.D. Ind. Feb. 7, 2017) (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).

         ANALYSIS

         A. The Court Lacks Jurisdiction Over the Removed Action

         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). Sovereign immunity extends to both the United States as well as its agencies. FDIC v. Meyer, 510 U.S. 471, 475 (1994). In the Federal Tort Claims Act, 28 US.C. § 2671 et seq., (FTCA), “Congress waived the United States's sovereign immunity for suits brought by persons injured by the negligence of federal employees acting within the scope of their employment.” Furry v. United States, 712 F.3d 988, 992 (7th Cir. 2013) (citing Emp'rs Ins. of Wausau v. United States, 27 F.3d 245, 247 (7th Cir. 1994)). The FTCA is the exclusive remedy for any tort claim resulting from the negligence of a government employee acting within the scope of employment, see Couch v. United States, 694 F.3d 852, 856 (7th Cir. 2012), and federal district courts have exclusive jurisdiction over such FTCA claims. See Keller v. United States, 771 F.3d 1021, 1022 (7th Cir. 2014) (citing 28 U.S.C. § 1346(b)(1) and § 2674).

         The Plaintiffs argue the jurisdictional language of 39 U.S.C. § 409(a) of the Postal Reorganization Act, which confers concurrent jurisdiction on federal courts, applies instead. See Pl.'s Resp., p. 2, ECF No. 20. However, the Court disagrees: the FTCA, and its exclusive jurisdictional grant to the federal district courts, applies to the instant case. See Dolan v. U.S. Postal Serv., 546 U.S. 481, 484 (2006) (“the [Postal Reorganization Act] also provides that the FTCA ‘shall apply to tort claims arising out of activities of the Postal Service, '” citing § 409(c)); see also Boehme v. U.S. Postal Serv., 343 F.3d 1260, 1263 (10th Cir. 2003); Davric Maine Corp. v. U.S. Postal Serv., 238 F.3d 58, 62 (1st Cir. 2001); Douglass v. U.S. Postal Serv., No. 3:17-cv-250 RLM-MGG, 2017 WL 2225187, *2 (N.D. Ind. May 22, 2017) (“[F]or tort claims, the [FTCA] governs the USPS's immunity.”).

         Because jurisdiction of FTCA claims lies solely with federal district courts, the Indiana state courts before which the original complaint was filed had no jurisdiction to hear the claim. Because the state court had no jurisdiction, this Court acquired none upon removal of the Plaintiffs' action. 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 7710374, 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 thus, dismissal 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.”).

         B. The ...