Brewer v. Department of Housing and Urban Dev.
| Decision Date | 26 November 1980 |
| Docket Number | No. C-3-79-368.,C-3-79-368. |
| Citation | 508 F. Supp. 72 |
| Parties | Mitchell BREWER et al., Plaintiffs, v. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT et al., Defendants. |
| Court | U.S. District Court — Southern District of Ohio |
A. J. Wagner, Dayton, Ohio, for plaintiffs.
Robert J. Fogarty, Asst. U. S. Atty., Dayton, Ohio, for HUD.
David C. Greer, Charles Claypool, Dayton, Ohio, for U. S. Steel.
William R. Coen, Dayton, Ohio, for Hussman.
James T. Ambrose, Dayton, Ohio, for Egbert.
DECISION AND ENTRY REMANDING CAPTIONED MATTER TO STATE COURT, UPON COURT'S OWN MOTION, FOR THE REASON THAT THE WITHIN MATTER WAS INCORRECTLY REMOVED; TERMINATION ENTRY
The captioned cause is before the Court upon four motions, to wit:
It appears from the amended complaint herein that Plaintiffs purchased a home from the Defendant Egbert, an agent for the Defendant Hussman Realty Company, in turn acting as agent for HUD. It further appears that the Defendant Ferrara, an agent for the Defendant Weller Realty, Inc., in turn acting as agent for HUD, was also involved in the purchase, although the nature or extent of such involvement is not clear from the amended complaint.
It is alleged that prior to the purchase, the home had been declared unfit for habitation by the Montgomery County Health Department due to a structural defect resulting in excessive interior moisture, which causes the formation and growth of mold on interior walls. It is alleged that each of the above-named Defendants knew or should have known of the defect but failed to disclose same to Plaintiffs at the time of the purchase. It is further alleged that, subsequent to the purchase, HUD assured Plaintiffs that the problem would be corrected, but has since refused to take corrective measures, contrary to such assurances and in breach of other express warranties. Finally, it is alleged that the Defendant U. S. Steel, which constructed the house through a subsidiary, was negligent in the use of improper materials or improper construction techniques.
Plaintiffs demand damages in the amount of $53,955.45, consisting of $23,510.45 loss on the mortgage on the property, $445.00 in damages to personal property, $5,000 for injury upon constructive eviction, and $25,000 in punitive relief.
Plaintiffs' action was originally filed in state court, but was removed to this Court pursuant to 28 U.S.C. § 1442(a)(1) upon petition by HUD. After removal, the Defendants Ferrara and Weller Realty (together) and Egbert and Hussman (individually) answered the amended complaint and cross claimed, including cross claims against HUD for contribution on any liability they may have to Plaintiffs. The Defendant U. S. Steel answered the amended complaint without cross-claim.
Before the pleadings closed, Plaintiffs settled their claims against HUD, and Plaintiffs and HUD caused an "Agreed Entry" to be filed herein (docket # 10) concerning the settlement. In substance, the entry acts to dismiss Plaintiffs' claims against HUD with prejudice, and bars HUD from pursuing any deficiency in the mortgage on the subject property.
The effect of the "Agreed Entry" filed by Plaintiffs and HUD on the claims and cross claims remaining in this action, is central to, or a part of, the questions raised by each of the four motions presented. The motions also raise certain jurisdictional questions. However, before proceeding to disposition of the motions (or in lieu thereof), the Court makes a threshold jurisdictional inquiry into the propriety of the removal effected herein upon HUD's petition.
HUD's petition for removal asserts that 28 U.S.C. § 1442(a)(1) provides authority for such removal. However, that section states:
KCPO Employees Credit Union v. Mitchell, 421 F.Supp. 1327, 1330 (W.D.Mo.1976). See also, California v. Bozarth, 356 F.Supp. 667 (N.D.Cal.1973); Lance Int'l., Inc. v. Aetna Cas. & Surety Company, 264 F.Supp. 349 (S.D.N.Y.1967). See generally, 1A Moore's Federal Practice ¶ 0.1641 at p. 301 n. 15 (1974 & 1980 Supp.)
Where, as herein, removal is effected solely upon petition by an agency of the United States, rather than by a federal officer defendant in the state proceeding, the removal is improvident. In such case, the jurisdiction of the federal district court is not perfected and the action must be remanded to the state court wherein it originated. 28 U.S.C. § 1447(c); Mitchell, supra at 1331.
For the forestated reason, this Court lacks "removal jurisdiction" over the present cause. Therefore, upon its own motion* pursuant to Civil Rule 12(h)(3), the Court orders the case remanded to the Common Pleas Court of Montgomery County, pursuant to 28 U.S.C. § 1447(c)-(d).
The Office of the Clerk of the United States District Court for the Southern District of Ohio, Western Division (Dayton) is ordered to mail a certified copy of this Order to the Clerk of the Common Pleas Court of Montgomery County, Ohio, from which Court this case was removed.
Costs in this Court are taxed against the party who improvidently removed this action from the State Court, to wit: The Department of Housing and Urban Development.
The captioned cause is hereby ordered terminated upon the docket records of the United States District Court for the Southern District of Ohio, Western Division, at Dayton.
Although the captioned cause has been terminated in this Court by virtue of the remand, the Court will, in the interest of completeness, as an advisory opinion, deal with motion one as if same were still viable, since that motion deals solely with questions of federal court jurisdiction. However, this Court will not deal with motions two, three and four, since the subject of said motions may well arise anew in State Court, and to rule upon same would be to make an advisory, non-binding opinion to a State trial judge.
In substance, HUD's motion seeking dismissal of the several cross claims against it, pursuant to Civil Rule 12(b)(1), is predicated on the proposition that a district court lacks subject matter jurisdiction over a claim against the United States (or its agencies) unless there is an affirmative statutory grant of jurisdiction and there is a waiver of sovereign immunity. Strictly speaking, however, the immunity defense available to the sovereign does not necessarily present, and should not be confused with the question of subject matter jurisdiction. KCPO Employees Credit Union v. Mitchell, 421 F.Supp. 1327 (W.D.Mo.1976); 1A Moore's Federal Practice ¶ 0.1691 at 558 n. 15. The district court may have the power to adjudicate a claim against the sovereign under its general federal question jurisdiction, just as the court might equally have jurisdiction in an action against any other legal entity; but the court must find that such claim is not viable unless the sovereign has consented to be sued in that court in the same manner as another legal entity. Conversely, the sovereign may consent to be sued in a given case, but the district court may lack subject matter jurisdiction over the otherwise viable claim if no substantial federal question is presented, diversity is wanting, and no other statutory jurisdictional predicate is applicable.
Thus, the question of subject matter jurisdiction in an action against the sovereign does not raise per se a question of sovereign immunity. Where, however, as is often the case, a statutory waiver of immunity and an associated jurisdictional grant are drafted so that their operation is interdependent, then the question of jurisdiction may suggest the bar of immunity by virtue of such interdependence. This is the basis of HUD's first challenge to this Court's jurisdiction over the cross claims against it. Of special relevance, herein, are the parameters of the waiver of sovereign immunity under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 2671-2680, and the extent of the associated jurisdictional grant in 28 U.S.C. § 1346(b), wherein jurisdiction is expressly given "subject to the provisions" of the FTCA.
As HUD correctly contends, this Court cannot exercise jurisdiction over the cross claims against it under section 1346(b). The FTCA retains the sovereign's immunity with respect to "any claim arising out of ... misrepresentation," 28 U.S.C. § 2680(h), whether such misrepresentation is intentional or negligent, Fitch v....
To continue reading
Request your trial
-
CH v. American Red Cross, 86-1713C(A).
...Inc., 606 F.Supp. 686 (D.Neb.1985); Lowe v. Norfolk & W. Ry. Co., 529 F.Supp. 491 (S.D.Ill.1982); Brewer v. Department of Housing & Urban Development, 508 F.Supp. 72 (S.D.Ohio 1980); KCPO Employees Credit Union v. Mitchell, 421 F.Supp. 1327 (W.D.Mo.1976). As we are bound to follow prior dec......
-
Tamiami Partners v. Miccosukee Tribe of Indians
...predicate is applicable. Homewood Corp. v. Kemp, 786 F.Supp. 1315, 1317 (S.D.Ohio 1992) (quoting Brewer v. Department of Housing & Urban Dev., 508 F.Supp. 72, 75 (S.D.Ohio 1980)). (i). As to the Tribe and its agencies: The United States Supreme Court has unequivocally found that Indian trib......
-
City of Alma v. Bell, Galyardt & Wells, Inc.
...States and that no "agency" of the United States has any right of removal under Section 1442(a)(1). Brewer v. Department of Housing and Urban Dev., 508 F.Supp. 72, 74 (D.Ohio 1980). See also, Lowe, 529 F.Supp. at 493-95, KCPO Employees Credit Union, 421 F.Supp. at 1330. See also, California......
-
Lowe v. Norfolk & W. Ry. Co.
...enforce federal law." 395 U.S. at 406-407, 89 S.Ct. at 1816 (emphasis ours). 421 F.Supp. at 1330.1 See, accord, Brewer v. Department of HUD, 508 F.Supp. 72, 74 (W.D. Ohio 1980); West v. West, 402 F.Supp. 1189 The cases cited by Monsanto as contra authority are unavailing. First, Westgard v.......