United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
R. LEICHTY, JUDGE
Michael Gapski filed this personal injury action against the
United States Postal Service, Mr. Terry Young, and Celina
Insurance Group in state court on March 1, 2019. ECF 2. USPS
removed the action to this court on April 23, 2019. ECF 1.
Celina was the first to respond to the complaint on June 7,
2019, objecting to venue and filing a motion to dismiss. ECF
7 and 8. USPS thereafter substituted the United States of
America as the proper defendant in lieu of USPS and Terry
Young. See 28 U.S.C. § 2679(d)(1). The United
States filed a motion to dismiss for lack of jurisdiction and
for failure to state a claim. ECF 11.
Gapski has not contested any motion, so the court may address
each motion summarily under N.D. Ind. Rule 7-1(d)(5) as
needed. Moreover, the court provided Mr. Gapski an additional
ten days to respond to the motions after the deadline to
respond had passed, effectively warning him that the case may
be dismissed if he failed to respond again. ECF 16. No.
response was forthcoming.
Defendant United States of America
United States has correctly argued that this court lacks
subject matter jurisdiction over Mr. Gapski’s claim
against it. The United States properly removed this case to
federal court under 28 U.S.C. §1442(a)(1). When a case
is removed from a state court pursuant to 28 U.S.C. §
1442 under the circumstances here, however, the federal
court’s jurisdiction is only derivative of the state
court’s jurisdiction. Arizona v. Manypenny,
451 U.S. 232, 242 n.17 (1981). Although perhaps not at first
intuitive, “[w]here the state court lacks jurisdiction
of the subject matter or of the parties, the federal court
acquires none, although in a like suit originally brought in
federal court it would have had jurisdiction.”
Edwards v. United States Dept. of Justice, 43 F.3d
312, 315 (7th Cir. 1994) (quoting Minnesota v. United
States, 305 U.S. 382, 389 (1939)). Therefore, the state
court must initially have had jurisdiction over the
plaintiff’s claims for the federal court to acquire
jurisdiction upon removal.
Mr. Gapski’s claim against the United States falls
under the purview of the Federal Tort Claims Act, which
confers exclusive jurisdiction on the federal courts over
tort claims against the United States and its agencies and
employees. 28 U.S.C.§ 1346(b)(1). Because federal courts
had exclusive jurisdiction over Mr. Gapski’s claim
against the United States, the state court originally lacked
jurisdiction to hear the case. Upon removal of Mr.
Gapski’s claim, this court derivatively obtained only
that jurisdiction that the state court enjoyed. Because the
state court did not have jurisdiction over Mr. Gapski’s
claim, this court lacks jurisdiction upon removal.
Accordingly, Mr. Gapski’s claim against the United
States must be dismissed under Fed.R.Civ.P. 12(b)(1).
Defendant Celina Insurance Group
ruling leaves but one defendant, Celina Insurance Group. Mr.
Gapski’s claim against Celina at best remains in this
court under supplemental jurisdiction. See 28 U.S.C.
§1367. It is at best because supplemental jurisdiction
presupposes that the court had original federal jurisdiction
otherwise, but that is not the case. See id.
the United States originally removed this case, the
government did so under the federal defendant removal
statute. 28 U.S.C. § 1442; ECF 1. Removal albeit proper,
this court lacked subject matter jurisdiction because it
derivatively obtained no jurisdiction from the state court.
See also Rodas v. Seidlin, 656 F.3d 610, 624 (7th
Cir. 2011) (“subject matter jurisdiction concerns the
power of a court to hear a case; the doctrine of derivative
jurisdiction is rooted in the idea that there is no case at
all”). Without original jurisdiction, the court cannot
exercise supplemental jurisdiction over Mr. Gapski’s
claim against Celina. See 28 U.S.C. §1367.
the court had original jurisdiction over Mr. Gapski’s
claim against the United States, this circuit recommends a
remand under the circumstances present here. “[I]t is
the well-established law of this circuit that the usual
practice is to dismiss without prejudice state supplemental
claims whenever all federal claims have been dismissed prior
to trial.” Groce v. Eli Lilly Co., 193 F.3d
496, 501 (7th Cir. 1999); see also 28 U.S.C. §
1367(c) (“The district courts may decline to exercise
supplemental jurisdiction over a claim under subsection (a)
if [the] district court has dismissed all claims over which
it has original jurisdiction.”); Contreras v.
Suncast Corp., 237 F.3d 756, 766 (7th Cir. 2001)
(district court may relinquish supplemental jurisdiction over
state law claims when it disposes of federal claims before
trial). Without an independent basis for original
jurisdiction, the claim against Celina must be remanded.
See, e.g., Martinez v. Seaton, 285 F.2d 587, 589-590
(10th Cir. 1961); Burns v. USMC, 1985 U.S. Dist.
LEXIS 14337 (N.D. Ill. Oct. 30, 1985) (when removal was
predicated on 28 U.S.C. § 1442, dismissal of federal
defendants required remand of pending state claims).
previously filed a notice trying to assert an independent
basis for subject matter jurisdiction-diversity jurisdiction
under 28 U.S.C. § 1332 (ECF 14). Celina attached an
exhibit showing that Celina is an Ohio corporation with its
principal place of business also in Ohio. ECF 14-2. Still,
neither Mr. Gapski nor Celina has established Mr.
Gapski’s citizenship in this entire record after
several opportunities (ECF 2, 7, 14), appreciating that
residency is not citizenship. See Heinen v. Northrop
Grumman Corp., 671 F.3d 669, 670 (7th Cir. 2012).
Without complete diversity, the court lacks jurisdiction on
this basis. See Chase v. Shop ‘N Save Warehouse
Foods, 110 F.3d 424, 427 (7th Cir. 1997) (defendant in
removal action bears the burden of demonstrating complete
efficiency of considering another opportunity to cure this,
even if a cure could be had, is complicated-indeed
hindered-by Celina’s prior objection to venue in this
court in the first place. ECF 7. Consistent with this
circuit’s preferences and the efficient administration
of justice, and appreciating that jurisdiction does not
exist, the court must remand Mr. Gapski’s claims
the court GRANTS the United States of America’s motion
to dismiss (ECF 11), REMANDS Mr. Gapski’s claims
against Celina to state court, and ...