Dejohn v. U.S. Dep't of Agric.

• Decision Date: 29 November 2017
• Docket Number: No. 1:17-cv-01289-DAD-JLT,1:17-cv-01289-DAD-JLT
• Parties: MICHAEL DEJOHN, Plaintiff, v. UNITED STATES DEPARTMENT OF AGRICULTURE, Defendant.
• Court: U.S. District Court — Eastern District of California

MICHAEL DEJOHN, Plaintiff, v. UNITED STATES DEPARTMENT OF AGRICULTURE, Defendant.

No. 1:17-cv-01289-DAD-JLT

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

November 29, 2017

ORDER GRANTING MOTION TO DISMISS WITHOUT LEAVE TO AMEND AND WITHOUT PREJUDICE

(Doc. No. 5)

This case is currently before the court on defendant's motion to dismiss for lack of jurisdiction. (Doc. No. 5.) A hearing was held on November 21, 2017, at which plaintiff appeared on his own behalf and Assistant United States Attorney Joseph Frueh appeared on behalf of the defendant. For the reasons that follow, the court will grant defendant's motion to dismiss.

BACKGROUND

Plaintiff alleges that, while fighting the Erskine Fire in June 2017, a large U.S. Forest Service tanker truck drove onto his land to access a water source. (Doc. No. 1-1 at 11.) In doing so, the Forest Service truck crushed his underground plastic septic tank, which now leaks sewage. (Id.) The estimated cost of repairing it is $5,498.85, which is what plaintiff seeks in damages. (Id.)

Plaintiff filed a small claims actions against defendant United States Department of Agriculture in the Kern County Superior Court on August 29, 2017. (Id. at 4.) Defendant removed the case to this federal court on September 28, 2017. (Doc. No. 1.) The motion to dismiss now pending before the court was filed by defendant on October 5, 2017. (Doc. No. 5.) Plaintiff filed an opposition on November 9, 2017. (Doc. No. 7.) Defendant filed a reply on November 14, 2017. (Doc. No. 8.)

LEGAL STANDARD

A party may move to dismiss a case for a lack of subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1). "Federal courts are courts of limited jurisdiction." Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). Because of this, "[i]t is to be presumed that a cause lies outside this limited jurisdiction, and the burden of establishing the contrary rests upon the party asserting jurisdiction." Id. (internal citations omitted). However, removal jurisdiction under § 1442 is to be construed "broadly in favor of removal."¹ Durham v. Lockheed Martin Corp., 445 F.3d 1247, 1252 (9th Cir. 2006).

Challenges to jurisdiction may be either facial or factual in nature. San Luis & Delta-Mendota Water Auth. v. U.S. Dep't of the Interior, 905 F. Supp. 2d 1158, 1167 (E.D. Cal. 2012). A facial attack to jurisdiction "accepts the truth of the plaintiff's allegations but asserts that they 'are insufficient on their face to invoke federal jurisdiction.'" Leite v. Crane Co., 749 F.3d 1117, 1121 (9th Cir. 2014) (quoting Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir.

/////2004)). Meanwhile, a factual attack "contests the truth of the plaintiff's factual allegations, usually by introducing evidence outside the pleadings." Id.

ANALYSIS

Defendant argues that the court must dismiss this action because it lacks jurisdiction under the doctrine of derivative jurisdiction. (Doc. No. 5-1 at 3.) The doctrine of derivative jurisdiction provides that "[i]f the state court lacks jurisdiction of the subject-matter or of the parties, the federal court acquires none [upon removal], although it might in a like suit originally brought there have had jurisdiction." Lambert Run Coal Co. v. Baltimore & O.R. Co., 258 U.S. 377, 382 (1922); see also Arizona v. Manypenny, 451 U.S. 232, 242 n.17 (1981); Minnesota v. United States, 305 U.S. 382, 389 (1939). Where, for instance, a suit is removed to federal court because it involves a federal officer, the federal court exercises "a purely derivative form of jurisdiction, neither enlarging nor contracting the rights of the parties." Manypenny, 451 U.S. at 242 n.17; see also In re Elko Cty. Grand Jury, 109 F.3d 554, 555 (9th Cir. 1997); Ethridge v. Harbor House Rest., 861 F.2d 1389, 1392 n.3 (9th Cir. 1988). The most common application of this doctrine appears to occur, ironically, where the federal court has exclusive jurisdiction. See Barry A. Lindahl, 1 Modern Tort Law: Liability and Litigation § 14:16 (2d ed. 2017) ("[A]n action otherwise within the original and exclusive jurisdiction of the federal district court cannot be removed thereto because the state court could not have had subject-matter jurisdiction over such an action.").

Congress abolished the doctrine of derivative jurisdiction for all removal of actions under 28 U.S.C. § 1441 in 1986. See 28 U.S.C. § 1441(f); Ethridge, 861 F.2d at 1392 n.3. Courts have noted that "[t]he language is crystal clear," and the doctrine has been expressly abolished for removals under § 1441. Bermudez v. U.S. Dep't of Housing and Urban Dev., 84 F. Supp. 2d 1094, 1095 (C.D. Cal. 2000). Moreover, various courts have noted strong reasons in favor of the complete abolition of the derivative jurisdiction doctrine—primarily that it makes little sense to dismiss a case for lack of jurisdiction because it was removed to the federal court that has exclusive jurisdiction. North Dakota v. Fredericks, 940 F.2d 333, 336 (8th Cir. 1991) ("The only effect . . . was to multiply proceedings. This kind of rigmarole is unworthy of a civilized judicialsystem."); Lou v. Belzberg, 834 F.2d 730, 735 n.2 (9th Cir. 1987) ("One would have thought that the purpose of removal in such a case is to get the case out of the court that lacks jurisdiction to hear it and into the court that has jurisdiction.") (quoting Washington v. Am. League of Prof'l Baseball Clubs, 460 F.2d 654 658-59 (9th Cir. 1972)); see also Fredericks, 940 F.2d at 337-38 ("The derivative-jurisdiction doctrine owes its origin to nothing whatever in the removal statutes themselves, but rather to the formalistic conception, entirely divorced from reality, that a case originally filed in a court without jurisdiction is doomed to be a nullity forever, even after transfer to a completely different forum.").

Nonetheless, in moving to dismiss this action defendant maintains that the doctrine of derivative jurisdiction was not abolished for removals under 28 U.S.C. § 1442. Indeed, the authority suggests this is indeed the law of this Circuit, any prior criticisms of the doctrine notwithstanding. See Cox v. U.S. Dep't of Agric., 800 F.3d 1031, 1032 (9th Cir. 2015) (reversing and remanding case under the derivative jurisdiction doctrine because district court should have dismissed the case rather than remanding it to state court); Glass v. Nat'l R.R. Passenger Corp., 570 F. Supp. 2d 1180, 1182-83 (C.D. Cal. 2008) ("[T]he derivative jurisdiction doctrine is alive and well and applies to 28 U.S.C. § 1442 removals."); FBI v. Superior Court of Cal., 507 F. Supp. 2d 1082, 1090-91 (N.D. Cal. 2007); see also Palmer v. City Nat'l Bank of W. Va., 498 F.3d 236, 245-46 (4th Cir. 2007). But see Rodas v. Seidlin, 656 F.3d 610, 619-25 (7th Cir. 2011) (concluding that, while the derivative jurisdiction doctrine continues to exist under § 1442, it is a procedural rather than jurisdictional defect that does not prohibit removal); Fredericks, 940 F.2d at 337-38 ("Accordingly, we hold that the doctrine of derivative jurisdiction, as applied to defeat removals, should be abandoned completely.").

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///// Defendant elected to remove this case pursuant to 28 U.S.C. § 1442(a)(1). (Doc. No. 1.) The Federal Tort Claims Act ("FTCA"), under which plaintiff's claims are presumably brought², reserves exclusive jurisdiction for civil actions for property damages to the federal courts. See 28 U.S.C. § 1346(b) (giving the district courts "exclusive jurisdiction of civil actions on claims against the United States, for money damages . . . for injury or loss of property"); Jerves v. United States, 966 F.2d 517, 518 (9th Cir. 1992) (holding the FTCA "vests the federal district courts with exclusive jurisdiction over suits arising from the negligence of Government employees"); Fed. Sav. & Loan Ins. Corp. v. Quinn, 419 F.2d 1014, 1017 (7th Cir. 1969). Therefore, the state court lacked jurisdiction over this action. Under these circumstances, this court is bound by the law of this Circuit and must dismiss this case.

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CONCLUSION

For the reasons given above:

1. Defendant's motion to dismiss this case for lack of jurisdiction (Doc. No. 5) is granted

2. This action is dismissed without leave to amend but without prejudice³; and

3. The Clerk of the Court is directed to close this case.

IT IS SO ORDERED.

Dated: November 29, 2017

/s/_________

UNITED STATES DISTRICT JUDGE

1. Defendant asserts that in this case the burden is on plaintiff to demonstrate subject matter jurisdiction. (Doc. No. 5-1 at 2-3.) However, it is the party invoking jurisdiction—here, the removing defendant—who generally bears the burden of demonstrating subject matter jurisdiction. See Hunter v. Phillip Morris USA, 582 F.3d 1039, 1042 (9th Cir. 2009) ("The 'strong presumption against removal jurisdiction means that the defendant always has the burden of establishing that removal is proper.'") (quoting Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992)); Serrano v. 180 Connect, Inc., 478 F.3d 1018, 1024 (9th Cir. 2007) ("the removing party bears the initial burden of establishing federal jurisdiction under § 1332(d)(2)"); Matheson v. Progressive Specialty Ins. Co., 319 F.3d 1089, 1090 (9th Cir. 2003); Emrich v. Touche Ross & Co., 846 F.2d 1190, 1195 (9th Cir. 1988). While the posture of the case is atypical—since the party invoking this court's jurisdiction also asserts jurisdiction is lacking, and § 1442 removals are construed more broadly than those under § 1441—the ultimate burden on the issue of this court's jurisdiction nonetheless lies on defendant as both the moving and the removing party.

2. Plaintiff did not file a traditional "complaint" and never specifically invoked the FTCA in his state court claim form filed in the small claims division of the Kern County Superior Court. (Doc. No. 1-1 at 4-6.) However, this court can and does recharacterize plaintiff's claims under the "artful pleading" doctrine....