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Tami v. Butler

United States District Court, D. New Jersey

March 31, 2019

LORI TAMI, Plaintiff,
v.
WILLIAM E. BUTLER, JR., and N.J. TRANSIT CORP., and UNITED STATES OF AMERICA, Defendants.

          OPINION

          KATHARINE S. HAYDEN, U.S.D.J.

         I. Introduction

         In this case removed from New Jersey state court, plaintiff Lori Tami sued defendants N.J. Transit Corp., William E. Butler, Jr., James Griffin, and the “United States Air Force and/or United States of America” for injuries she allegedly sustained in a motor vehicle accident while riding on an N.J. Transit bus. The United States has moved to dismiss Tami's claims against it for lack of subject matter jurisdiction or, in the alternative, for failure to state a claim upon which relief may be granted (D.E. 4). The motion is fully briefed, and the Court decides it without oral argument. See L. Civ. R. 78.1.

         II. Background

         Tami alleges that she was injured on November 16, 2014, while a passenger in an N.J. Transit-owned vehicle (which she describes in her briefing as a bus) driven by Butler. (D.E. 1-1, Am. Compl., First Count ¶¶ 1-6.) Tami appears to assert that the Butler-driven bus collided with a vehicle driven by Griffin, who was employed by “the United States Air Force and/or the United States of America” and acting within the scope of that employment. (Id., Second Count ¶¶ 1-6.) She further alleges that Butler and Griffin caused the collision by driving “carelessly, recklessly and negligently, ” and that she sustained injury as a result. (Id., First Count ¶¶ 4, 6, Second Count ¶¶ 4, 6.)

         Tami submitted an administrative claim for personal injury to the United States Air Force on approximately April 22, 2016. (D.E. 4-2, Coit Decl., Ex. A.)[1] It is undisputed that the Air Force denied the administrative claim by letter dated November 15, 2016. (Coit Decl., Ex. B.) The letter stated that it was “the final denial of the claim of Lori Tami, ” and that if dissatisfied with the decision, she “may now file suit in an appropriate United States District Court not later than six months after the date of mailing of this letter.” (Id.)

         Five days before the Air Force mailed its denial letter, on November 10, 2016, Tami filed a personal injury action in the New Jersey Superior Court, Union County, naming Butler, N.J. Transit, Griffin, and the Air Force as defendants. (See D.E. 1-2, Notice of Removal, Ex. B.) On May 26, 2017, the state court dismissed Griffin and the Air Force and transferred the case to Essex County Superior Court. (See id.; see also D.E. 6, Pl.'s Opp., Ex. E.) The United States represents that the dismissal was for failure to prosecute. (D.E. 4-1, Moving Br. 2.) Butler and N.J. Transit answered the complaint on May 1, 2017. (D.E. 1-7, Notice of Removal, Ex. G.)

         Tami does not assert that she, at any point, filed a lawsuit in “an appropriate United States District Court” as per the Air Force's November 15, 2016 letter. Instead, in August 2017, Tami moved to amend her state court complaint to add the United States as a defendant. (D.E. 1-2 & 1-4, Notice of Removal, Exs. B & D.) That motion was granted on August 18, 2017, and Tami filed her amended complaint in state court on August 30, 2017. (D.E. 1-2 & 1-5, Notice of Removal, Exs. B & E.)

         The apparent impetus for this amendment was a June 28, 2017 letter in which the United States Attorney's Office for the District of New Jersey informed Tami's counsel that the office represents the United States, federal agencies, and federal employees in civil actions in New Jersey, and that Griffin and the United States Air Force would not consent to vacating the dismissal of Tami's action against them because they were not properly subject to suit. (Pl.'s Opp., Ex. E.) The letter further asserted that the only proper party to a Federal Tort Claims Act (“FTCA”) action is the United States, and that the FTCA confers exclusive jurisdiction over such claims upon the United States district courts. (Id.) The letter noted that Tami's “available recourse is to file a civil action against the United States in the United States District Court for the District of New Jersey.” (Id.)

         As noted, Tami did not do so, and instead added the United States as a defendant in her state court action. She served the amended complaint on the United States via an address in Washington, D.C., on September 28, 2017, and sought entry of default against the United States in November 2017. (D.E. 1-2 & 1-6, Notice of Removal, Ex. B & F.)

         The United States removed the state court action to this Court on November 30, 2017, invoking 28 U.S.C. § 1442(a)(1). Tami consented to vacate the entry of default against the United States (D.E. 3), and the United States has moved to dismiss the action as against it for lack of subject matter jurisdiction or, in the alternative, failure to state a claim upon which relief may be granted (D.E. 4). The United States argues that the doctrine of derivative jurisdiction, which provides that the federal court in an action removed from state court acquires only the jurisdiction the state court had, requires dismissal because under 28 U.S.C. § 1346(b)(1), the New Jersey Superior Court lacked subject matter jurisdiction. The United States also contends that Tami's claim against it is time-barred under 28 U.S.C. § 2401(b) because she had six months after the denial of her administrative claim (i.e., six months from November 15, 2016) to file suit against the United States in a United States District Court, but she did not name the United States as a defendant until the amended complaint was filed on August 30, 2017, and she filed in the wrong forum.

         Tami responds that the liability of both the state of New Jersey and the United States is at stake, and “judicial economy and risk of inconsistent results” necessitated litigation in one forum, and, in her view, the “more appropriate” one was a New Jersey state court. (Pl.'s Opp. 3.) She argues that the doctrine of derivative jurisdiction should not defeat her claim because courts are split as to whether it applies to cases removed under 28 U.S.C. § 1442. She also contends her claim is not time-barred because she “substantially complied” with 28 U.S.C. § 2401(b). (Pl.'s Opp. 5.) Finally, Tami argues that the United States waived or is equitably estopped from asserting a timeliness defense because the Air Force did not timely object to being named as a defendant.

         III. Standard of Review

         The United States primarily argues that the complaint should be dismissed against it for lack of subject matter jurisdiction. Pursuant to Fed.R.Civ.P. 12(b)(1), “a court must grant a motion to dismiss if it lacks subject matter jurisdiction to hear a claim.” Seiss v. United States, 792 F.Supp.2d 729, 730 (D.N.J. 2011) (Linares, J.). A motion to dismiss for lack of subject matter jurisdiction may either “attack the complaint on its face, ” or “attack the existence of subject matter jurisdiction in fact, quite apart from any pleadings.” Mortensen v. First Fed. Sav. & Loan Ass'n,549 F.2d 884, 891 (3d Cir. 1977). A facial challenge asserts that the claim is, on its face, insufficient to invoke the court's subject matter jurisdiction, while a factual challenge attacks jurisdiction “based on facts apart from the pleadings.” Telchin v. Perel, 2014 U.S. Dist. LEXIS 74576, at *4 (D.N.J. June 2, 2014) (Thompson, J.). In invoking ...


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