PATRICIA KENNEDY Plaintiff,
v.
JASON PAUL, Defendant,
HARTFORD GUN CLUB, INC Defendant/
Apportionment Plaintiff/Cross-Claimant
v.
CONNECTICUT SPORT SHOOTERS, MICHAEL CRITSER
and MICHAEL BUREK (individually and
d/b/a CONNECTICUT SPORT SHOOTERS),
CHAD BARBER, EVERETT NAIR and BARTON NANNEY,
Third Party Cross-Claimants/Defendants/Apportionment Defendants
CIVIL ACTION NO. 3:12-CV-01491 (VLB)
UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT
September 30, 2013
INTRODUCTION
As directed by this Court in an Order entered February 22, 2013, Dkt. 54, Plaintiff Patricia Kennedy has moved to remand this action to the Connecticut Superior Court, for the Judicial District of Stamford/Norwalk on the basis of lack of subject matter jurisdiction. For the reasons described below, the motion to
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remand is granted. The claims against the federal defendants will be dismissed, as will all cross and counter-claims filed in this Court, and the remaining claims will be remanded to state court.
I. Statement of Relevant Facts
On October 24, 2010, Plaintiff Patricia Kennedy was participating in a shooting competition held at outdoor shooting ranges owned by Defendant Hartford Gun Club, Inc. ("HGC"). [Compl. ¶ 4.]1 The competition was sponsored by the Connecticut Sport Shooters, as a benefit for the U.S. Coast Guard Academy Combat Arms Team. [Compl. ¶ 4.] Plaintiff was allegedly struck in the head by a bullet fired by Defendant Jason D. Paul during the competition. [Compl. ¶¶ 9-10.] Plaintiff survived the injury, but has allegedly been left with severe and very costly ongoing physical and emotional injuries and disabilities. [Compl. ¶ 11-15.] HGC alleges that Connecticut Sports Shooters, as well as Michael Critser and Michael Burek (collectively, the "CSS Defendants"), organized and operated the shooting competition that day, and were responsible for the setup of the range and the safety of the competition. [Apport. Compl. ¶¶ 17-21, 30.]2 HGC alleges that Chad Barber, Everett Nair, and Barton Nanney (collectively, the "Coast Guard Defendants"), among other things, induced the Plaintiff to participate in the competition, and were also responsible for the operation and oversight of the competition, and together with the CSS
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Defendants were responsible for the set-up of the competition. [Apport. Compl. ¶¶17-21, 33-46.]
II. Relevant Procedural History
This litigation was commenced when Plaintiff Patricia Kennedy brought suit in the Connecticut Superior Court for the Judicial District of Stamford/Norwalk against HGC and Jason D. Paul. [Dkt. 55 at 1.] Defendant HGC then filed an apportionment complaint in Connecticut Superior Court against the CSS Defendants and the Coast Guard Defendants. [Dkt. 55 at 2.] The action was removed to this Court by the Coast Guard Defendants on October 18, 2012. At the time of removal, there was a pending motion on the state court docket in which HGC sought permission to serve a third-party complaint on the CSS Defendants and the Coast Guard Defendants. [Dkt. 3 at 1.] That motion was docketed with this Court, [Dkt. 8], and then denied without prejudice to refiling in conformity with the Federal Rules of Civil Procedure. [Dkt. 31.] HGC then filed a motion for leave to file cross-claims against the CSS Defendants and the Coast Guard Defendants, [Dkt. 36], which motion was then granted by this Court, [Dkt. 40.]. On February 22, 2013, the Court ordered briefing on the question of remand to state court for lack of subject matter jurisdiction. [Dkt. 54.] Plaintiff Kennedy filed a motion to remand to state court on February 27, 2013, and HGC filed an opposition on March 30, 2013.
III. LEGAL ANALYSIS
A. Standard of Review
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A district court must remand a case if "at any time before final judgment it appears that the district court lacks subject matter jurisdiction." 28 U.S.C. § 1447(c). "The party asserting federal jurisdiction bears the burden of showing that the case is properly before the federal court." Second Injury Fund v. Nat'l Union Fire Ins. Co., No. 3:10-cv-00086, 2010 U.S. Dist. LEXIS 67704, at *3 (D. Conn. July 8, 2010) (citing McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 189 (1936)).
B. Discussion
Under the doctrine of derivative jurisdiction, the federal court's jurisdiction over a case that has been removed is derived from the jurisdiction of the state court from which the action has been removed. Lambert Run Coal Co. v. Baltimore & O.R. Co., 258 U.S. 377, 382 (1922) (abrogated in part by 28 U.S.C. § 1441(f)). "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., 258 U.S. at 382. "[A] district court must dismiss a complaint if the state court from which the case was removed lacked jurisdiction." Nordlicht v. New York Tel. Co., 799 F.2d 859, 863 n.1 (2d Cir. 1986), cert. denied, 479 U.S. 1055 (1987), abrogated in part on other grounds by Metro. Life Ins. Co. v. Taylor, 481 U.S. 58 (1987), as recognized in Marcus, et al. v. AT&T Corp., et al., 138 F.3d 46, 55 (2d Cir. 1998). "This result obtains even if the reason the state court lacked jurisdiction is that the complaint lies within the exclusive jurisdiction of the federal courts." Nordlicht, 799 F.2d at 863 (citations omitted).
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Congress has explicitly eliminated derivative jurisdiction for cases that are removed under 28 U.S.C. § 1441. 28 U.S.C. §1441(f) ("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 is removed did not have jurisdiction over that claim.") (emphasis added). Because the text of section 1441(f) explicitly states that it applies to cases removed "under this section", courts in this Circuit and others have held that derivative jurisdiction continues to apply to cases removed under other removal statutes. See, e.g., Barnaby v. Quintos, 410 F. Supp. 2d 142, 144 (S.D.N.Y. 2005) ("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 Code."); Cf. Thornton v. Maryland Gen. Hosp., No. WMN-13-162, 2013 U.S. Dist. LEXIS 65365, at *8-9 (D. Md. May 8, 2013)(finding that section 1441(f) applies only to cases removed under section 1441 and that as a result derivative jurisdiction still applied to cases removed under 42 U.S.C. § 233); Zanghi v. Sisters of Charity Hosp. of Buffalo, No. 12-cv-75-65S, 2013 U.S. Dist. LEXIS 26044, at *7-8 (W.D.N.Y. Feb. 26, 2013) (finding that although "Congress has specifically abrogated the doctrine with respect to removals under the general removal statute, 28 U.S.C. § 1441, it has not done so with respect to removals under and 28 U.S.C. § 1442(a)(1) and 42 U.S.C. §233(c).").3
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In the Notice of Removal, Dkt. 1, the United States asserts that it is removing the case under 28 U.S.C. § 1442(a)(1) and 28 U.S.C. § 2679(d)(2). Section 1442(a)(1) provides that actions filed in state court against the United States "or any officer . . . of the United States or of any agency thereof" "may be removed by them to the district court of the United States . . ." 28 U.S.C. § 1441(a)(1).4 Section 2679(d)(2), a subsection of the Federal Tort Claims Act, requires that once the Attorney General has certified that a defendant "was acting
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within the scope of his office or employment at the time of the incident out of which the claim arose, any civil action or proceeding commenced upon such claim in a State court shall be removed . . . to the district court of the United States . . . ." 28 U.S.C. § 2679(d)(2). Section 1346(b) gives federal district courts exclusive jurisdiction over claims brought under the FTCA. 28 U.S.C § 1346(b)(1) ("the district courts . . . shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, . . . for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment . . .").
The Superior Court did not have...
