United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
DENNIS
M. COTA UNITED STATES MAGISTRATE JUDGE
Plaintiff,
who is proceeding pro se, brings this civil action. Pending
before the court is defendant Western Area Power
Administration's unopposed motion to dismiss and remand
(ECF No. 7).
I.
BACKGROUND
Plaintiff
initiated this case as a small claims action filed in the
Shasta County Superior Court. See ECF No. 1-1
(Notice of Removal, Exhibit A). Plaintiff names the following
as defendants: (1) Western Area Power Administration (WAPA);
(2) Sayers Construction, LLC; and (3) Foothills Energy
Services, Inc. See id. Plaintiff alleges defendants
are liable for $10, 000.00 in property damages. See
id. Specifically, plaintiff claims: “Destruction
of property; failure to clean up and restore property to the
original condition (emphasis in original).”
Id. Defendant Western Area Power Administration
removed the action to this court pursuant to 28 U.S.C. §
1442(a)(1) because it is a federal agency. See ECF
No. 1.
II.
DISCUSSION
In its
unopposed motion to dismiss, defendant WAPA argues that it
must be dismissed under the doctrine of derivative
jurisdiction and that the matter should be remanded as to the
remaining defendants.
In
cases removed under 28 U.S.C. § 1442, the federal
court's jurisdiction is derivative of the state
court's jurisdiction. See Cox v. United States
Dep't of Agriculture, 800 F.3d 1031, 1032 (9th Cir.
2015); In re Elko City Grand Jury, 109 F.3d 554, 555
(9th Cir. 1997). “If the state court lacks jurisdiction
of the subject matter or of the parties, the federal court
acquires none.” Lambert Run Coal Co. v. Baltimore
& Ohio R.R. Co., 258 U.S. 377, 382 (1922). Thus, if
the state court lacked jurisdiction over a given matter, the
case was a nullity when filed and the district court could
not acquire jurisdiction through removal under § 1442.
See F.B.I. v. Superior Court of Cal., 507 F.Supp.2d
1082, 1090 (N.D. Cal. 2007) (citing Beeman v. Olson,
828 F.2d 620, 621 (9th Cir. 1987)). Though Congress
eliminated the doctrine of derivative jurisdiction for
actions removed under 28 U.S.C. § 1441, see 28
U.S.C. § 1441(f), the doctrine remains applicable to
removals under § 1442, see Cox, 800 F.3d at
1032; see also Glass v. Nat'l R.R. Passenger
Corp., 570 F.Supp.2d 1180, 1183 (C.D. Cal. 2008);
Munshower v. City of Lodi, 2016 WL 6875905 (E.D.
Cal. 2016).
According
to defendant:
As discussed, Plaintiff sued WAPA in Shasta County Superior
Court for alleged property damage, but the United States has
not waived the sovereign immunity of its agencies for such
lawsuits in state court. F.D.I.C. v. Meyer, 510 U.S.
471, 475 (1994) (“Absent a waiver, sovereign immunity
shields the Federal Government and its agencies from
suit.”); Cox, 800 F.3d at 1032 (“Because
the record contains no evidence that USDA waived its
sovereign immunity to the Coxes' petition, the Nevada
state court lacked jurisdiction over the action.”).
Instead, under the Federal Tort Claims Act
(“FTCA”), federal district courts have
“exclusive jurisdiction” over civil
actions for property damage against the federal government.
28 U.S.C. § 1346(b) (emphasis added); Glass,
570 F.Supp.2d at 1181-82; Munshower, 2016 WL
6875905, at *2 (“The state court lacked subject matter
jurisdiction over [the plaintiff's] tort claims because
district courts have exclusive jurisdiction of FTCA
suits.”).
Accordingly, because the Shasta County Superior Court lacked
jurisdiction over Plaintiff's claim against WAPA, this
Court likewise lacks jurisdiction by operation of the
derivative-jurisdiction doctrine. It is irrelevant that WAPA
is the party that removed the action to federal court,
Glass, 570 F.Supp.2d at 1181-82, or whether
Plaintiff could have filed this action in federal court in
the first instance. [footnote omitted]. See Beeman,
828 F.2d at 621. Plaintiff's claim against WAPA must be
dismissed, and her remaining claims against Sayers
Construction and Foothills Energy Services must be remanded
to state court. See e.g., Glass, 570
F.Supp.2d at 1183 (dismissing claims against the United
States pursuant to the derivative jurisdiction doctrine, and
remanding claims against the remaining parties to state
court); Munshower, 2016 WL 6875905, at *2 (same).
Defendant's
argument, which is unopposed, is persuasive. As defendant
correctly notes, under the provisions of the waiver of
sovereign immunity contained in the FTCA, the federal
district courts have exclusive jurisdiction over
claims against WAPA. See 28 U.S.C. §
1346(b)(1). Because the federal court's jurisdiction over
plaintiff's claims against WAPA is exclusive, the state
court lacked any jurisdiction over such claims when the
action was initiated in that court. Thus, under the doctrine
of derivative jurisdiction, this court acquired none when it
was removed under 28 U.S.C. § 1442. This remains true
even though this court would have had jurisdiction over
plaintiff's claims against WAPA if plaintiff had
initiated the action directly in this court. See
Minnesota v. United States, 305 U.S. 382, 289 (1938)
(discussing derivative jurisdiction doctrine as it applied to
removals under 28 U.S.C. § 1441 prior to amendment). As
this court never acquired any jurisdiction over
plaintiff's claims against WAPA incident to
defendant's removal from state court, it must be
dismissed as a defendant to this action. See
Munshower, 2016 WL 6875905, at *2.
Here,
plaintiff has presented claims against private parties in
addition to WAPA. Specifically, plaintiff has sued Sayers
Construction, LLC, and Foothills Energy Services, Inc. Under
28 U.S.C. § 1367(a), this court may exercise
supplemental jurisdiction over all claims related to claims
over which the court has original subject matter
jurisdiction. Because, however, this court never acquired
subject matter jurisdiction when the matter was removed, it
lacks jurisdiction at all and cannot exercise supplemental
jurisdiction over plaintiff's claims against the private
parties. Plaintiff's claims against the private parties
should be remanded to state court.
Judge
Mendez addressed a situation similar to the one presented in
this case in Munshower. In that case, Judy Munshower
filed suit in state court against the City of Lodi.
See 2016 WL 6875905. The City of Lodi filed a
cross-complaint in state court against the United States
Postal Service (USPS). See id. USPS removed the
action to federal court under 28 U.S.C. § 1442 and moved
to dismiss, arguing the derivative jurisdiction doctrine
barred the action against it. See id. Judge Mendez
agreed and concluded the state court lacked jurisdiction over
the City of Lodi's claims against USPS because
jurisdiction over such claims is exclusive to the federal
court. See id. Judge Mendez also determined that the
derivative jurisdiction doctrine applied and held that the
federal court acquired no jurisdiction by virtue of the
removal under § 1442. See id. Finally, having
concluded that the federal court lacked any jurisdiction over
the case upon removal, Judge Mendez remanded the remainder of
the case back to state court. See id.
Plaintiff
cannot proceed against WAPA in state court. To the extent
plaintiff seeks relief against WAPA (or the United States,
which would be the proper party in a FTCA action), he must
re-file directly in federal court, which could then exercise
supplemental jurisdiction over the private parties. If
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