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