Lopez v. Vaquera
| Decision Date | 19 February 2013 |
| Docket Number | EP-12-CV-00427-DCG |
| Parties | JESUS IVAN LOPEZ, Plaintiff, v. RAMON R. VAQUERA d/b/a YUCCA CONTRACTING and SENTRILLION CORPORATION, Defendants. SENTRILLION CORPORATION, Third-Party Plaintiff, v. UNITED STATES OF AMERICA, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. CUSTOMS AND BORDER PROTECTION, OFFICE OF THE U.S. BORDER PATROL, and the U.S. SECTION OF THE INTERNATIONAL BOUNDARY AND WATER COMMISSION, Third-Party Defendants. |
| Court | U.S. District Court — Western District of Texas |
Presently before this Court is Third-Party Defendants United States of America ("United States"), U.S. Department of Homeland Security, U.S. Customs and Border Protection, Office of the U.S. Border Patrol, and the U.S. Section of the International Boundary and Water Commission's Motion to Dismiss (ECF No. 2), filed on October 25, 2012. Having consideredthe motion, responses and replies thereto, the case file as a whole and the applicable law, the Court enters the following opinion and orders.
The instant action arises out of a work-related accident that occurred on July 25, 2011, along the border of the United States and Mexico. As a result of the accident, Plaintiff Jesus Ivan Lopez ("Plaintiff or "Lopez") sustained injuries and commenced suit against Defendants Ramon R. Vaquera d/b/a YUCCA Contracting and Sentrillion Corporation ("Sentrillion") in the County Court at Law No. 6, El Paso County, Texas, on August 3, 2011. See Lopez v. Vaquera d/b/a YUCCA Contracting & Sentrillion Corp., Cause No. 2011-3088 (Co. Ct. at Law No. 6—El Paso Cnty., Tex); Notice of Removal 63, Ex. 1, at 1-4 [hereinafter Original Petition]. Thereafter, on August 26, 2012, Plaintiff filed his First Amended Petition, and on September 25, 2012, Plaintiff filed his Second Amended Petition. Notice of Removal 52-56 [hereinafter First Amended Petition]; 38-45 [hereinafter Second Amended Petition]. Therein, Plaintiff asserts claims of negligence against Defendants under Texas law. Second Am. Pet. 38-45.
On October 4, 2012, Defendant Sentrillion filed an Original Third Party Petition ("Third-Party Complaint") against the named Third-Party Defendants; and on or about October 11, 2012, the United States' Attorney's Offices was served with the above-referenced state court action. In its complaint, Sentrillion asserts claims for contribution and indemnification pursuant to Chapters 32 and 33 of the Texas Civil Practice and Remedies Code and the Federal Torts Claims Act, 28 U.S.C. §§ 1346(b) and 2671 to 2680, for negligent acts attributed to employees and agencies of the United States.
On October 24, 2012, Third-Party Defendant United States removed the entire action and invoked this Court's jurisdiction pursuant to 28 U.S.C. § 1442(a)(1). See Notice of Removal 1-3. The next day, Third-Party Defendant United States moved to dismiss the third-party complaint on the doctrine of derivative jurisdiction. Third-Party Defendant United States asserts that the claims alleged under the FTCA can only be maintained in federal court; accordingly, United States contends that this Court is without jurisdiction because the third-party complaint was not filed in federal court, rather in state court.
In determining whether dismissal is proper, the Court now turns to the applicable law to resolve (i) whether removal was in fact proper; (ii) whether the doctrine of derivative jurisdiction subject to limitation applies in the given case; and (iii) whether subject matter jurisdiction exists.
Federal courts are courts of limited jurisdiction, with the ability to hear only cases entrusted to them by a grant of power contained in either the Constitution or in an act of Congress. Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583 (1999) (); Coury v. Prot, 85 F.3d 244, 248-9 (5th Cir. 1996). Without jurisdiction, the court cannot proceed at all in any cause. "'Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause.'" United States v. Tex. Tech Univ., 171 F.3d 279, 287-88 (5th Cir. 1999) (quoting Steel Co. v. Citizens for a Better Environ., 523 U.S. 83, 94 (1998)). As such, "[a] court must find jurisdiction ... before determining the validity of a claim." Guidry v. U.S. Tobacco Co., Inc., 188 F.3d 619, 623 n. 2 (5th Cir. 1999) (citing Moron v. Kingdom of Saudi Arabia, 27 F.3d 169, 172 (5th Cir. 1994)).
Federal Rules of Civil Procedure 12(b)(1) authorizes a court to dismiss claims over which it lacks subject matter jurisdiction. See Ramming v. United States, 281 F.3d 158, 161 (5th Cir.2001) (citing Fed. R. Civ. P. 12(b)(1)). Under Rule 12(b)(1), a claim is "properly dismissed for lack of subject-matter jurisdiction when the court lacks the statutory or constitutional power to adjudicate" the claim. In re FEMA Trailer Formaldehyde Prods. Liab. Litig. (Miss. Pis.), 668 F.3d 281, 286 (5th Cir. 2012) ().
Presently before this Court, neither party claims that Third-Party Defendant improperly removed the instant cause of action.1 Before endeavoring the application of the doctrine of derivative jurisdiction and resolving the parties' respective filings pertaining to the lack of subject matter jurisdiction, the Court preliminarily addresses the removal of the above-styled cause under 28 U.S.C. § 1442(a)(1).2
Referred to as the federal officer removal statute, Section 1442(a)(1) permits removal of a civil suit filed in state court when the action is against "[t]he United States or any agency thereof or any officer (or any person acting under that officer) of the United States or of any agency thereof, in an official or individual capacity, for or relating to any act under color of such office."3 See 28 U.S.C. § 1442(a)(1). The removal statute "is an incident of federal supremacy."Murray v. Murray, 621 F.2d 103, 106 (5th Cir. 1980) (citing Willingham v. Morgan, 395 U.S. 402, 405 (1969)). Accordingly, the rationale that underlies Section 1442 avers that "federal officers [and agencies thereof the United States] are entitled to, and the interest of national supremacy requires, the protection of a federal forum in those actions commenced in state court that could arrest, restrict, impair, or interfere with the exercise of federal authority." Id. (citing Willingham, 395 U.S. at 407 (1969)).
As an initial matter, the Court notes that when the modern version of the removal statute was enacted in 1948, it only afforded federal officers removal authority. See 62 Stat. 938 (1948), 28 U.S.C. § 1442(a)(1) (amended 1996 and 2011).4 However, in response to a Supreme Court decision, International Primate Protection League, et al v. Administrators of Tulane Educational Fund, et al, 500 U.S. 72 (1991), Congress amended the removal statute to its present-day form, e.g., the addition of "[t]he United States and any agency thereof."5 As a result of the current statutory language, the United States generally has authority to invoke Section1442(a)(1). See Fletcher v. United States, 452 F. App'x 547, 551 (5th Cir. 2011) (unpublished), cert, denied, 132 S. Ct. 1873 (2012); Farmer v. United States, Civ. A. No. 12-CV-1960, 2012 WL 5463872, * 1 (E.D. La. Nov. 8, 2012); see also, e.g., Osborn v. Haley, 549 U.S. 225,234 (2007); Rodas v. Seidlin, 656 F.3d 610, 616-17 (7th Cir. 2011) () (internal citation omitted); United States v. Schiaffino, 275 F. App'x 115, 116 (3d Cir. 2008) (unpublished), reh'g granted and op. , 285 F. App'x 931 (3d Cir. 2008), and on reh'g, 317 F. App'x 105 (3d Cir. 2009); City of Cookeville, Tenn. v. Upper Cumberland Elec. Membership Corp., 484 F.3d 380, 389 (6th Cir. 2007).
Notwithstanding the amendment, the underlying principle of Section 1442(a)(1) advances the federal interests identified by Congress. See S.R. Rep. 104-366, at 24, 1996 U.S.C.C.A.N. 4202,4210 (1996) (). The current removal statute continues to maintain and promote the realization that a federal forum is crucial to actions against the United States, as well as its federal officers and agencies. Id. This Court observes that the modern removal statute furthers congressional intent concerning actions that involve "the exercise of Federal authority, the scope of Federal immunity and Federal-State conflicts [that ought to] be adjudicated in Federal court." H.R. Rep. 104-798, at 20, and S.R. Rep. 104-366, at 24. As such, Section 1442 continues to rest on a federal interest. See Willingham, 395 U.S. at 406; Hexamer v. Foreness, 981 F.2d 821, 823-24 (5th Cir. 1993)(Because a "federal forum [is to be provided] for any litigation that might interfere with the performance of federal duties.").6
Moreover, the Court notes, inter alia, that the fact that the removing party is a third-party defendant does not defeat removal under the relevant statute. IMFC Prof'l Servs. of Fla., Inc. v. Latin Am. Home Health, Inc., 676 F.2d 152, 156 (5th Cir. 1982).7 Courts have uniformly permitted third-party defendants to remove pursuant to the special removal authority granted in Section 1442(a)(1). See Powerex Corp. v. Reliant Energy Servs., Inc., 551 U.S. 224, 226 (2007);8 Spencer v. New Orleans Levee Bd, 737 F.2d 435,438 (5th...
To continue reading
Request your trial