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HENRY v. QUINTOS

December 3, 2005.

SANDRA BARNABY AS ADMINISTRATRIX FOR THE ESTATE OF CAROL-ANN HENRY and DEVON SMITH, Plaintiffs,
v.
LORCELI ALVAREZ QUINTOS, M.D., et al., Defendants. UNIVERSAL DIAGNOSTIC LABORATORIES, INC., ARNOLD L. STATINGER, M.D., and MARLENE JEAN-BAPTISTE, Third-Party Plaintiffs, v. LORCELI ALVAREZ QUINTOS, M.D., and MT. VERNON NEIGHBORHOOD HEALTH CENTER, INC., Third-Party Defendants.



The opinion of the court was delivered by: JOHN KOELTL, District Judge

OPINION AND ORDER

The third-party defendants, Lorceli Alvarez Quintos, M.D. ("Quintos"), and Mount Vernon Neighborhood Health Center ("MVHC") (collectively the "Clinic defendants"), move to dismiss the third-party complaint for lack of subject matter jurisdiction pursuant to Rule 12 (b) (1) of the Federal Rules of Civil Procedure. I.

This action was originally brought by the plaintiff in New York State Supreme Court, Bronx County, for medical malpractice. In addition to Quintos and MVHC, the state court action named as defendants the third-party plaintiffs, Universal Diagnostic Laboratories, Inc., ("Universal"), Arnold L. Statsinger, M.D., and Marlene Jean-Baptiste (collectively the "Lab defendants"). In December 2003, the Clinic defendants removed the action to this Court and the Government moved to have the United States substituted for the Clinic defendants because they were federal employees acting in the scope of their employment and could not be sued.*fn1 The only remedy available would be a suit against the United States under the Federal Tort Claims Act ("FTCA"). See 28 U.S.C. §§ 2679 (b) (1).

  The United States was substituted as a defendant and the action was dismissed against the United States without prejudice for failure to file an administrative claim as required by 28 U.S.C. § 2675(a). The case was remanded to state court against the remaining defendants, the Lab defendants. Thereafter, in May 2005, the Lab defendants filed a third-party complaint against the Clinic defendants in state court, and in July 2005 the Clinic defendants again removed the entire case to this Court pursuant to 28 U.S.C. § 1442(a)(1), 28 U.S.C. § 2679(d)(2), and 42 U.S.C. § 233(c).

  II.

  The Clinic defendants now move to dismiss the third-party complaint for lack of subject matter jurisdiction under the doctrine of "derivative jurisdiction." Under this doctrine, this Court lacks jurisdiction on removal because it cannot have jurisdiction where the state court from which the action was removed lacked jurisdiction. The state court lacked jurisdiction because, under 28 U.S.C. § 1346 (b) (1) and 28 U.S.C. § 2679 (b) (1), the third-party complaint against the Clinic defendants could only be brought against the United States in the federal district court.

  The derivative jurisdiction doctrine has its roots in the Supreme Court's decision in Lambert Run Coal Co. v. Baltimore & Ohio R.R., 258 U.S. 377 (1922), in which the Court stated that "[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." Id. at 382; see also Arizona v. Manypenny, 451 U.S. 232, 242 n. 17 (1981); Minnesota v. United States, 305 U.S. 382, 389 (1939); PT United Can Co. Ltd. v. Crown Cork & Seal Co., Inc., 138 F.3d 65, 72-73 (2d Cir. 1998). The Lab defendants respond that dismissal pursuant to a derivative jurisdiction theory would not be appropriate because that doctrine is no longer viable because it has been eliminated by 28 U.S.C. § 1441(f). Alternatively, the Lab defendants argue that the state court had jurisdiction over the third-party claims because exclusive federal jurisdiction under the FTCA did not exist until the Attorney General of the United States, or his designee, certified the Clinic defendants as federal employees acting within the scope of their employment, the case was removed to federal court, and the United States substituted as defendant.

  III.

  With respect to the continuing viability of derivative jurisdiction, it is clear that 28 U.S.C. § 1441(f), first adopted in different form by Congress in 1985 (the "1985 amendment"), eliminated derivative jurisdiction for cases removed under 28 U.S.C. § 1441.*fn2 Section 1441(a) authorizes removal for any civil action "brought in a State court of which the district courts of the United States have original jurisdiction." This case, however, was removed to this court not under Section 1441, but under 28 U.S.C. § 1442(a) (1),*fn3 28 U.S.C. § 2679 (d) (2),*fn4 and 42 U.S.C. § 233(C).*fn5 The Lab defendants' principal contention is that 28 U.S.C. § 1441(f) should be read to eliminate the doctrine not only for cases removed under 28 U.S.C. § 1441, but for all cases. Such a reading, however, is foreclosed by the plain text and the history of the statute.

  The 1985 amendment, originally codified at 28 U.S.C. § 1441(e), provided that
"The court to which such civil action is removed is not precluded from hearing and determining any claim in such civil action because the State court from which such civil action is removed did not have jurisdiction over that claim."
Judicial Improvements Act of 1985, Pub.L. 99-336 § 3, 100 Stat. 633.

  In 2002, however, Congress again amended 28 U.S.C. § 1441, redesignating the paragraph added in the 1985 amendment, 28 U.S.C. § 1441(e), as 28 U.S.C. § 1441(f), and inserting a new subsection (e) (the "2002 amendment"). More importantly, Congress amended the provision's text, replacing "The court to which such civil action is removed" with the words "The court to which a civil action is removed under this section." Pub.L. 107-273 § 11020(b) (3) (A), 116 Stat. 1758, 1827 (emphasis added).

  As amended in 2002, therefore, 28 U.S.C. § 1441(f) reads:
"The court to which a civil action is removed under this section is not precluded from hearing and determining any claim in such civil action because the State court from which such civil action was removed did not have jurisdiction over that claim."
28 U.S.C. § 1441(f).
  In amending the statute in 2002, and replacing less precise language with much more specific language, Congress left no doubt that Section 1441(f) applies only to removals under Section 1441 and not to removals under any other section of the United States Code.

  Accordingly, in the absence of a corresponding amendment to other removal provisions, such as 28 U.S.C. § 1442, every district court decision in this circuit to address the issue has found that derivative jurisdiction continues to be the rule under those provisions despite the 2002 and 1985 amendments to Section 1441. See Singleton v. Elrac, Inc., No. 03 Civ. 4979 (JFK), 2004 WL 2609554 at *1-2 (S.D.N.Y. Nov. 16, 2004); Gionfriddo v. Salaf, 343 F. Supp. 2d 109, 111 (D. Conn. 2004); Charles v. Inam, No. 99 Civ. 12427 (SWK), 2001 WL 79900 at *1 (S.D.N.Y. Jan. 30, 2001); Giuffre v. City of New York, No. 00 Civ. 1517 (MBM), 2000 WL 557324 at *1 (S.D.N.Y. May 8, 2000); Moreland v. Van Buren GMC, 93 F. Supp. 2d 346, 353-55 (E.D.N.Y. 1999). Contrast Strychasz v. Maron Const. Co., Inc., No. Civ. 3:01 CV 2063 (PCD), 2002 WL 32500874 at *2 (D. Conn. Jul. 16, 2002) (noting that derivative jurisdiction was "eliminated to some extent" by the 1985 amendment, but declining to address the viability of derivative jurisdiction for cases removed under 28 U.S.C. § 1442 because the Government had cited 28 U.S.C. § 1441 as the basis for removal).

  While the Court of Appeals for the Second Circuit has not, since the 1985 or 2002 amendments, directly addressed the continued viability of derivative jurisdiction for cases removed pursuant to provisions other than 28 U.S.C. § 1441, it has referred to derivative jurisdiction as a viable doctrine well after the ...


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