City of Alma v. Bell, Galyardt & Wells, Inc.

• Decision Date: 24 April 1985
• Docket Number: No. CV 83-0-568.,CV 83-0-568.
• Citation: 606 F. Supp. 686
• Court: U.S. District Court — District of Nebraska
• Parties: CITY OF ALMA, Plaintiff, v. BELL, GALYARDT & WELLS, INC., a/k/a Bell, Galyardt & Associates, Inc., et al., Defendants. BELL, GALYARDT & ASSOCIATES, Defendant and Third-Party Plaintiff, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, et al., Third-Party Defendants.

606 F. Supp. 686

CITY OF ALMA, Plaintiff, v. BELL, GALYARDT & WELLS, INC., a/k/a Bell, Galyardt & Associates, Inc., et al., Defendants.

BELL, GALYARDT & ASSOCIATES, Defendant and Third-Party Plaintiff, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, et al., Third-Party Defendants.

No. CV 83-0-568.

United States District Court, D. Nebraska.

April 24, 1985.

McKelvie & McNally, Thomas P. McNally, Alma, Neb., and Tye, Worlock, Tye, Taylor & Hopkins, Joan Munn Hopkins, Kearney, Neb., and Stehlik, Smith, Trustin, Schweer & Ruder, Frederick D. Stehlik, Omaha, Neb., for plaintiff.

Thomas J. Guilfoyle, Thomas J. Guilfoyle, P.C., Omaha, Neb., for Bell, Galyardt & Wells, Inc.

Paul L. Douglas, Atty. Gen., John Boehm, Asst., Lincoln, Neb., for Nebraska Dept. of Environmental Control.

Jeffrey W. Meyers, Frost & Meyers, Omaha, Neb., for Nebraska Testing Laboratories, Inc.

Douglas R. Semisch, Asst. U.S. Atty., and Joan M. Bernott, Spec. Litigation Counsel, Environmental Defense Section, Land and Natural Resources Div., U.S. Dept. of Justice, Washington, D.C., for third-party defendants.

ORDER

BEAM, District Judge.

This matter is before the Court upon the second motion of the third-party defendant, the United States to dismiss (filing 58) for failure to state a claim; the motion for summary judgment (filing 50) of the defendant and third-party plaintiff Bell, Galyardt & Wells, Inc.; and the motion for summary judgment (filing 51) of defendant Nebraska Testing Laboratories, Inc. This Court, after a review of the files and briefs submitted, finds that this Court shall upon its own motion remand this case to state court for the reason that the matter was incorrectly removed and, as a result, this Court lacks subject matter jurisdiction over the primary case. In addition, the motion to dismiss of the United States should be granted, not because the third-party complaint fails to state a claim,¹ but rather for the reason that this Court lacks jurisdiction.

Plaintiff's action was originally filed in state court. In the state court, the plaintiff sued the United States Environmental Protection Agency (EPA), the Nebraska Department of Environmental Control, Nebraska Testing Laboratories, Inc. (Nebraska Testing), and Bell, Galyardt & Wells, Inc. (Bell). The United States, pursuant to 28 U.S.C. §§ 1441 et seq., removed the action to United States District Court. The EPA was then dismissed because this Court lacked subject matter jurisdiction over it as a party. However, this Court retained jurisdiction based on 28 U.S.C. § 1442(a)(1) of the remainder of the case (filing 15). Bell impleaded as third-party defendant the United States. The United States filed two motions to dismiss for failure to state a claim. It was during examination of the second of these motions, that this Court had cause to again examine the issue of its subject matter jurisdiction and as a result found itself to be without jurisdiction of any part of the matter.

Since there exists neither diversity of parties nor a federal question to confer jurisdiction, the only basis this Court could have for jurisdiction is if the case was properly removed by a federal defendant pursuant to an applicable federal statute. Such is not the case.

Section 1447(c), Title 28, United States Code, imposes the duty on all district courts to remand any case "if at any time before final judgment it appears that the case was removed improvidently and without jurisdiction." 28 U.S.C. § 1447(c). See KCPO Employees Credit Union v. Mitchell, 421 F.Supp. 1327, 1328 (D.Mo.1976). This case was not properly removed pursuant to either 28 U.S.C. §§ 1441(a) or 1442(a)(1).

I.

Removal under subsection 1441(a) was improper. The subsection provides:

(a) Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.

28 U.S.C. § 1441(a) (1980). This subsection is further complemented by subsection (c);

(c) Whenever a separate and independent claim or cause of action, which would be removable if sued upon alone, is joined with one or more otherwise non-removable claims or causes of action, the entire case may be removed and the district court may determine all issues therein, or, in its discretion, may remand all matters not otherwise within its original jurisdiction.

28 U.S.C. § 1441(c). "As the statute indicates, to be removable a case must be within the original jurisdiction of the federal court." Lowe v. Norfolk & W. Ry. Co., 529 F.Supp. 491, 496 (D.Ill.1982).

As the plaintiff has conceded, the claim against the EPA should have been brought directly against the United States, exclusively in a federal court. It should have been filed in either a federal district court as a tort claim² under 28 U.S.C. § 2674, or in the Court of Claims as a contract claim under 28 U.S.C. § 1491.³Compare 28 U.S.C. § 1346 with 28 U.S.C. § 1491.

Whether the plaintiff's claim against the EPA sounds in tort or contract, exclusive jurisdiction is vested in the federal courts. 28 U.S.C. §§ 1346 and 1491. The District Court of Harlan County, Nebraska, had absolutely no subject matter jurisdiction over the suit against the EPA. As a result, since removal jurisdiction under section 1441(a) is derivative in character, this Court acquired no jurisdiction. As Justice Brandeis stated,

As the state court was without jurisdiction over either the subject-matter or the United States, the District Court could not acquire jurisdiction over them by the removal. The 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.

Lambert Run Coal Co. v. Baltimore & Ohio R.R. Co., 258 U.S. 377, 382, 42 S.Ct. 349, 351, 66 L.Ed. 671 (1922). See Gleason v. United States, 458 F.2d 171, 173-74 (3d Cir.1972); Martinez v. Seaton, 285 F.2d 587 (10th Cir.1961), cert. denied, 366 U.S. 946, 81 S.Ct. 1677, 6 L.Ed.2d 856 (1961); see also, Lowe, 529 F.Supp. at 497; Fruin-Colnon v. M.G. Transport Serv., 79 F.R.D. 674 (D.Ill.1978); Schultz v. Director, Fed. Emergency Management Agency, 477 F.Supp. 118 (D.Ill.1979).

II.

Defendants Bell and Nebraska Testing contend that removal was otherwise appropriate under 28 U.S.C. § 1442(a)(1). For support, the defendants rely on the case of IMFC Professional Services, etc. v. Latin Am. Home Health, Inc., 676 F.2d 152 (5th Cir.1982). However, a closer look at 28 U.S.C. § 1442(a)(1), the above case, and the posture of the case at bar, results in this Court holding that section 1442(a)(1) provides no jurisdiction for removal of this case.

Section 1442(a)(1), Title 28, United States Code, the federal officer removal statute provides that:

(a) A civil action or criminal prosecution commenced in a State court against any of the following persons may be removed by them to the district court of the United States for the district and division embracing the place wherein it is pending:

(1) Any officer of the United States or any agency thereof, or person acting under him, for any act under color of such office ...

The defendants' argument that this case was properly removed is premised on the notion that "any agency" of the United States has a right under section 1442(a)(1) to remove a civil action pending in a state court any time it is sued in state court. However, this notion is not supported by the majority of the federal courts who have considered the question.

Here, if any cause of action exists, the United States, not the EPA, was the proper party to have been sued by the plaintiff. No officer of the United States or officer of a government agency was ever properly before the state court. The petition for removal shows on its face that removal was sought by the United States, not by a federal officer or any agency of the United States. Therefore, as a matter of fact, neither federal officer nor federal agency removed the case.

In addition, even if an agency of the United States had removed this case pursuant to section 1442(a)(1), this Court is in agreement with the courts that have found that section 1442(a)(1) cannot be read as conferring a right of removal on "any agency" of the United States. It has been usual to hold that the plain meaning of

section 1442(a)(1) confers the right of removal only upon officers of the United States and officers of any agency of the United 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 v. Bozarth, 356 F.Supp. 667 (N.D.Cal.1973); Lance Int'l., Inc. v. Aetna Cas. & Sur. Co., 264 F.Supp. 349 (D.N.Y.1967). See generally, 1A Moore's Federal Practice ¶ 0.1641 at p. 301 n. 15 (1974 and 1980 Supp.) Section 1442(a)(1) is by its language unavailable to the EPA or the United States as authority for removal, since the EPA was sued only as an agency and no recovery is sought from individual officials. Lowe, 529 F.Supp. at 493.

The United States Supreme Court has discussed the reasons underlying the Court's removal jurisdiction in actions involving officers of the United States or officers of agencies of the United States government. The Court stated:

... Historically, removal under § 1442(a)(1) and its predecessor statutes was meant to ensure a federal forum in any case where a federal official is entitled to raise a defense arising out of his official duties. The act of removal permits a trial upon the merits of the state-law

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