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MORELAND v. VAN BUREN GMC

July 23, 1999

JOSEPH MORELAND AND ROSALIE MORELAND, PLAINTIFFS,
v.
VAN BUREN GMC AND LONG ISLAND SANITATION EQUIPMENT, INC., DEFENDANTS. LONG ISLAND SANITATION EQUIPMENT, INC., THIRD-PARTY PLAINTIFF, V. UNITED STATES MERCHANT MARINE ACADEMY AND DEPARTMENT OF TRANSPORTATION, THIRD-PARTY DEFENDANTS. VAN BUREN GMC, SECOND THIRD-PARTY PLAINTIFF, V. UNITED STATES OF AMERICA, SECOND THIRD-PARTY DEFENDANT.



The opinion of the court was delivered by: Hurley, District Judge.

  MEMORANDUM AND ORDER

Pending before the Court is the motion of Third-Party Defendants United States Merchant Marine Academy (the "Academy") and Department of Transportation ("DOT") and Second Third-Party Defendant United States of America (the "United States") (sometimes hereinafter collectively referred to as the "Government") to (1) dismiss this action as against them for lack of subject matter jurisdiction, pursuant to Federal Rule of Civil Procedure ("Rule") 12(b)(1) and (2) remand the action to the Nassau County Supreme Court, pursuant to 28 U.S.C. § 1447(c). For the reasons that follow, the motion is granted.

BACKGROUND

I. Factual Background

Plaintiff Joseph Moreland ("Mr. Moreland"), now retired, was a motor vehicle operator employed by the Academy. On May 28, 1992, Mr. Moreland was operating a garbage compactor located in the rear of a sanitation vehicle owned by the Academy. According to Plaintiffs, the vehicle spontaneously shifted out of neutral gear into reverse. In the midst of Mr. Moreland's unsuccessful attempt to deactivate the compactor blade, the blade descended down, slicing off a portion of his left fourth finger. As a result of the accident, Mr. Moreland's left fourth finger was partially amputated; he further suffered contusions to his left third and fourth fingers.

On August 31, 1992, Plaintiffs commenced suit in Queens County Supreme Court against Van Buren GMC ("Van Buren") and Long Island Sanitation Equipment, Inc. ("LIS"), contending, inter alia, that they were negligent in maintaining and servicing the sanitation vehicle and its various component parts. By Order dated October 12, 1993, Queens County Supreme Court Justice Joscelyn E. Smith transferred the action to Nassau County Supreme Court. On or about January 20, 1995, LIS commenced a third-party action for indemnity and contribution against the Academy and the DOT (hereinafter collectively the "Third-Party Defendants").

On March 7, 1995, Third-Party Defendants removed the entire action to this Court. In their Notice of Removal, Third-Party Defendants invoked 28 U.S.C. § 1441(a) (authorizing removal of action where such action could have been brought in federal district court in the first instance) and 28 U.S.C. § 1442(a)(1) (authorizing removal of action where United States or agency thereof named as defendant). On August 2, 1996, Magistrate Judge Arlene R. Lindsay granted Van Buren's motion for leave to file a second third-party action. The Second Third-Party Complaint, which named the "United States" as Second Third-Party Defendant, similarly seeks indemnity and contribution.

II. The Court's February 10, 1998 Memorandum and Order

In May 1997, LIS and Van Buren moved for summary judgment on Plaintiffs' claims, pursuant to Rule 56(b). By Memorandum and Order dated February 10, 1998 (hereinafter "Moreland I"), the Court, acting sua sponte, raised the question of its subject matter jurisdiction over this action, and, more pointedly, questioned the propriety of the removal of this action from the Nassau County Supreme Court.

The Court concluded that 28 U.S.C. § 1441(a) afforded no basis for removal by the Academy and the DOT, as that subsection applied only to original defendants. Moreland I at 6-8. The Court further concluded that, assuming, arguendo, that 28 U.S.C. § 1441(c) conferred removal rights upon third-party defendants, removal was nonetheless improper under that subsection "because the third-party claims did not constitute a "separate and independent" action." Id. at 13.

The Court then proceeded to address the propriety of removal under 28 U.S.C. § 1442(a)(1). At the time this action was removed, the Court noted, removal by a federal agency was unauthorized under Section 1442(a)(1), pursuant to the holding in International Primate Protection League v. Administrators of Tulane Educ. Fund, 500 U.S. 72, 79-80, 111 S.Ct. 1700, 114 L.Ed.2d 134 (1991). Moreland I at 15. On October 19, 1996, however, some nineteen months after this action was removed, Congress enacted the Federal Courts Improvement Act of 1996 (the "Federal Courts Act"), Pub.L. No. 104-317, 11 Stat. 3847. Among the provisions of the Federal Courts Act was an amendment to Section 1442(a)(1); the newly-revised Section 1442(a)(1) specifically authorizes removal by a federal agency.

The Court then posed the following question: "Should [it] apply the present version of Section 1442(a)(1) to this action, and, accordingly, find that removal jurisdiction under Section 1442(a)(1) was properly invoked?" Moreland I at 16. Assuming, arguendo, that the present version of Section 1442(a)(1) were applied properly to this case, that is, that the newly-amended statute had no retroactive effect, the Court further noted that the doctrine of derivative jurisdiction appeared to prevent this Court's acquisition of subject matter jurisdiction over the action.

Accordingly, the Court directed the parties to further brief these issues. The Government responded via its present motion to dismiss the claims as against it and remand ...


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