The opinion of the court was delivered by: JOHN KEENAN, Senior District Judge
Plaintiffs initially sued the Navy, Jamal Gibson, Elrac, Inc.
("Elrac") and Mattie Lee Shepheard ("Shepheard") in the State
Supreme Court of New York, Bronx County, on March 14, 2002.
Plaintiffs alleged that the defendants were liable for injuries
to plaintiffs sustained in a three-car accident at the
intersection of Bronx River Road and 174th Street in the Bronx on
April 21, 2001.
The Singleton action against the Navy and Gibson (Federal
Defendants) was discontinued via stipulation on November 12,
2002. Elrac and Shepheard, the remaining defendants, then brought
a third-party action against the Navy and Gibson, requesting that
these third-party defendants indemnify and hold the third-party
plaintiffs harmless, in whole or in part, for any judgment
against the third-party plaintiffs, by reason of the degree of
wrong committed against them.
On July 2, 2003, the Federal Defendants removed the entire
action to the Southern District of New York pursuant to
28 U.S.C. § 1442(a)(1). The Federal Defendants now move to dismiss the
third-party complaint, pursuant to Federal Rule of Civil
Procedure 12(b)(1) for lack of subject matter jurisdiction.
Plaintiffs brought a separate action against the United States
and the Federal Defendants (04 Civ. 717) which was dismissed on
May 21, 2004 by stipulation. Discussion
In moving to dismiss this third-party complaint, the Federal
Defendants rely upon the doctrine of derivative jurisdiction as
first articulated in Lambert Run Coal Co. v. Baltimore & O.R.
Co., 258 U.S. 377
, 382 (1922), where the Supreme Court held:
[t]he jurisdiction of the federal court on removal
is, in a limited sense, a derivative jurisdiction. If
the state court lacks jurisdiction of the
subject-matter or of the parties, the federal court
acquires none, although it might in a like suit
originally brought there have had jurisdiction.
As various circuits have ruled:
[i]t is clear that a federal court's jurisdiction
upon removal under 28 U.S.C. § 1442(a)(1) is
derivative of the state court jurisdiction, and where
the state court lacks jurisdiction over the subject
matter or the parties, the federal court acquires
none upon removal, even though in a like suit
originally brought in federal court, the court would
have had jurisdiction.
Smith v. Cromer, 159 F.3d 875
, 879 (4th Cir. 1998); see
also Elko County Grand Jury v. Siminoe, 109 F.3d 554, 555
(9th Cir. 1997) ("[B]ecause this case was removed from state
court pursuant to § 1442, our jurisdiction is derivative of the
state court's jurisdiction."); Edwards v. United States Dep't of
Justice, 43 F.3d 312
, 315 (7th Cir. 1994) ("When a case is
removed from a state court pursuant to 28 U.S.C. § 1442, the
district court's basis for jurisdiction is only derivative of
that of the state court."). Although third-party plaintiffs argue that the removal could
have been pursuant to 28 U.S.C. § 1441, the fact is that the
removal was under 28 U.S.C. § 1442(a)(1).
In deciding whether there is derivative jurisdiction over the
third-party complaint, it must first be determined whether the
state court had jurisdiction over the third-party complaint
against the Navy, a federal agency, and Gibson, a Navy officer.
There is no dispute that Gibson was acting within the scope of
his duties at the time of the collision.
Claims against the United States are barred unless sovereign
immunity has been "unequivocally" waived by a federal statute.
See United States v. Mitchell, 445 U.S. 535, 538 (1980).
"Because an action against a federal agency or federal officers
in their official capacities is essentially a suit against the
United States, such suits are also barred under the doctrine of
sovereign immunity, unless such immunity is waived." Robinson v.
Overseas Military Sales Corp., 21 F.3d 502, 510 (2d Cir. 1994)
Because of the Federal Torts Claim Act ("FTCA"),
28 U.S.C. § 2671 et seq., the United States waived sovereign immunity
regarding certain common law tort claims, if such suits are
brought against the United States directly. The FTCA's limited
waiver of immunity does not, however, extend to suits brought
against federal agencies such as the Navy. See
28 U.S.C. § 2679(a); FDIC v. Meyer, 510 U.S. 471, 476 (1994) ("[I]f a suit
is cognizable under § 1346(b) of the FTCA, the FTCA remedy is
exclusive and the federal agency cannot be sued in its own name.") (internal quotation marks
omitted); Myers & Myers, Inc. v. United States Postal Service,
527 F.2d 1252, 1256 (2d Cir. 1975) ("Neither the Postal Service
nor the Postal Inspection Service, named as defendants, may be
sued directly on claims brought under 28 U.S.C. § 1346(b).");
Saar v. United States Dep't of Justice, 705 F. Supp. 999, 1003
(S.D.N.Y. 1989) ("Under the FTCA, sovereign immunity is only
waived where the United States is named as a party."). Neither
New York State Supreme Court nor this Court possesses
jurisdiction over tort claims brought against the Navy.
The New York court also lacked jurisdiction over the
third-party plaintiffs' suit against Gibson. Gibson was acting
within the scope of his employment with the Navy at the time of
the accident in question. See Certification of James B. Comey,
then United States Attorney for the Southern District of New
York, attached as Ex. E to Vargas Decl.; Compl. ¶ 27. The FTCA
explicitly precludes any tort action against a federal employee
in such circumstances:
The remedy against the United States provided by
sections 1346(b) and 2672 of this title  for
injury or loss of property, or personal injury or
death arising or resulting from the negligent or
wrongful act or omission of any employee of the
Government while acting within the scope of his
office or employment is exclusive of any other civil
action or proceeding for money damages by reason of
the same subject matter against the employee whose
act or omission gave rise to the claim. . . . Any
other civil action or proceeding for money damages
arising out of or relating to the same subject matter
against the employee or the employee's estate is
precluded. . . . 28 U.S.C. § 2679(b)(1). As Gibson enjoys "immunity
against claims of common-law tort," Rivera v. United
States, 928 F.2d 592, 608 (2d Cir. 1991), the New
York state court did not have jurisdiction over this
The United States and its agencies cannot be impleaded as
third-party defendants in state court tort actions. Keene Corp
v. United States, 700 F.2d 836
, 843 n. 10 (2d Cir. 1983) (under
28 U.S.C. § 1346(b), a defendant could not implead the United
States in a state court action); Harris v. G.C. Servs. Corp.,
651 F. Supp. 1417, 1418 (S.D.N.Y. 1987).
The New York State Supreme Court had no jurisdiction over the
third-party complaint against the Federal Defendants here.
Third-party plaintiffs, Elrac, argue that the Judicial
Improvement Act of 1985 which did eliminate derivative
jurisdiction under 28 U.S.C. § 1441(f) should be applied here
where the removal was under 28 U.S.C. § 1442(a). The 1985 act did
not amend 1442(a) and the government removed under the latter
section as it had a right to do.
District courts in the Second Circuit, two in the Southern
District of New York, have properly applied the doctrine of
derivative jurisdiction to dismiss third-party complaints against
federal agencies in the circumstances presented in this case. In
Charles v. Inam, 99 Civ. 12427 (SWK), 2001 WL 79900 (S.D.N.Y.
Jan. 30, 2001), the defendant originally filed a third-party
complaint in state court against the United States Postal Service
and one of its employees for indemnification claiming the Postal Service was liable for plaintiff's injuries sustained in a
car accident. See 2001 WL 79900, at *1. After the Postal
Service removed the action pursuant to Section 1442(a)(1), the
district court held that it lacked subject matter jurisdiction
over the claims in the third-party complaint because the state
court in which it was first filed had no ...