United States District Court, D. New Jersey
KATHARINE S. HAYDEN, U.S.D.J.
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.
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.)
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.) 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.)
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.)
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.)
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.”
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.)
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.
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
Standard of Review
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