United States District Court, N.D. Indiana, Fort Wayne Division
OPINION AND ORDER
THERESA L. SPRINGMANN CHIEF JUDGE
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].
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.
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.
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
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).
The Court Lacks Jurisdiction Over the Removed Action
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
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.”).
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