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Lopez v Sentrillon Corporation

Case No. 13-50790 (C.A. 5, Apr. 10, 2014)

Jesus Ivan Lopez filed state law claims in state court against Sentrillion Corporation, a general contractor, for injuries he sustained during a construction project for the United States Custom and Border Protection. Sentrillion filed third-party indemnity and contribution claims under the Federal Tort Claims Act (FTCA) against the United States. The United States, in turn, removed the case to federal court under 28 U.S.C. § 1442(a) and then immediately moved to dismiss under the derivative jurisdiction doctrine. The district court dismissed all claims against the United States and remanded the remaining claims—Lopez’s state law claims against Sentrillion—to state court. Sentrillion now appeals both the dismissal and remand. We affirm the district court.

I



Lopez filed suit in state court against his employer Sentrillion (the appellant here), asserting state law claims arising out of a workplace injury that occurred on July 25, 2011. At the time of the accident, Lopez was working for Ramon R. Vaquera d/b/a Yucca Contracting, a subcontractor for Sentrillion, the general contractor, on a project for the United States Customs and Border Protection. Sentrillion filed a Third Party Petition in state court against the United States on October 4, 2012, seeking contribution and indemnification under the FTCA. The United States removed the case to federal court under 28 U.S.C. § 1442(a), the federal officer removal statute, on October 24.

The following day, the United States moved to dismiss the claims against it for lack of jurisdiction pursuant to the derivative jurisdiction doctrine. The district court initially denied the motion to dismiss, reasoning that the derivative jurisdiction doctrine did apply to removals under § 1442 but that the United States had waived the doctrine by removing the case to federal court. On the United States’ motion for reconsideration, however, the district court granted the motion to dismiss the third party claims against the United States. It continued to maintain that the derivative jurisdiction doctrine applied to removals under § 1442. But on reconsideration, it determined that Supreme Court precedent precluded its earlier finding that the United States had waived the derivative jurisdiction doctrine, at least here where the United States moved to dismiss the day after it removed the case to federal court. It explained that “when the [derivative jurisdiction] doctrine is raised promptly upon removal prior to adjudication of the merits, the doctrine must be invoked to limit the federal court’s jurisdiction, if any, to that of the state court.” The district court thus dismissed Sentrillion’s third-party claims against the United States for lack of jurisdiction on July 8, 2013.
 

 

Judge(s): Patrick E. Higginbotham
Jurisdiction: U.S. Court of Appeals, Fifth Circuit
Related Categories: Construction , Contracts , Employment , Energy / Utilities , Government / Politics , Immigration , International , Torts , Wills / Trusts / Estates
 
Circuit Court Judge(s)
Eugene Davis
Catharina Haynes
Patrick Higginbotham

 

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supplemental jurisdiction over a claim under subsection (a) if . . . the district court has we disagree. in 1986, congress amended 28 u.s.c. § 1441(e) to add 4 in re amy unknown, 701 f.3d 749, 760 (5th cir. 2012) (en banc). statute’s language is plain, the sole function of the courts—at least where the derivative jurisdiction doctrine was abrogated by congress for removals under pending. determined that, assuming arguendo that the doctrine of derivative waived it.21 having done so, sentrillion cannot prevail in its challenge to the april 10, 2014 pursuant to other statutes such as 28 u.s.c. § 1442,”13 as in the instant case. shore & m.s. ry. co., 260 u.s. 261, 288 (1922)). unreviewability for cases removed to federal court pursuant to § 1442, as was accepted meaning.”5 no such ambiguity exists in the statute here, which seeking to subpoena a federal officer in a case removed from state court to federal court under jurisdiction to review the remand order here. 12 sentrillion cites some dicta in cases from this circuit that appears to recognize an argument that those claims, although dismissed for procedural reasons under united states court of appeals 5 id. (citing carrieri, 393 f.3d at 518–19). 15 rodas v. seidlin, 656 f.3d 610, 619 (7th cir. 2011); see also palmer v. city nat’l motion as moot concurrent with its order granting the united states’ motion not reviewable on appeal or otherwise, except that an order remanding a case for the fifth circuit § 1442). to limit the federal court’s jurisdiction, if any, to that of the state court.” the it is “susceptible to more than one reasonable interpretation or more than one 6 v. third-party ftca claims against the united states based on the derivative dismissed all claims over which it has original jurisdiction.” 21 see bailey v. shell western e&p, inc., 609 f.3d 710, 722 (5th cir. 2010) (“issues not had waived the derivative jurisdiction doctrine, at least here where the united no. 13-50790 jesus ivan lopez filed state law claims in state court against sentrillion jurisdiction to enforce a state court subpoena of a federal officer. see louisiana v. sparks, i derivative jurisdiction “prevented [the district c]ourt from establishing original “[a]n order remanding a case to the state court from which it was removed is district court (not in the court of federal claims) asserting ftca contribution statute creates an unambiguous exception to the general rule of court’s order remanding the remaining state law claims to state court on the we consult legislative history.”4 but statutory language is ambiguous only if states. it continued to maintain that the derivative jurisdiction doctrine that the district court needed to exercise supplemental jurisdiction over the doctrine of derivative jurisdiction should be considered a jurisdictional for the removal of civil actions directed against federal officers or agencies. § 1367(c), its discretionary supplemental jurisdiction, and concluded that “the powers,” and that amendments to § 1441(e) were inapplicable to the case at issue because it applied to removals under § 1442. but on reconsideration, it determined that was filed before the statute’s effective date). moreover, after the 1986 amendment, this court has abrogated the derivative jurisdiction doctrine only with respect to jurisdiction doctrine maintains that when a case is removed from state to clerk case: 13-50790 document: 00512591909 page: 5 date filed: 04/10/2014 the united states had waived the doctrine by removing the case to federal 22 id. (quoting atwood v. union carbide corp., 847 f.2d 278, 280 (5th cir. 1988) bank of w. va., 498 f.3d 236, 246 (4th cir. 2007) (“whatever the intent of the 2002 disagreed about whether congress intended the abrogation of the derivative pendent state law claims. case: 13-50790 document: 00512591909 page: 8 date filed: 04/10/2014 10 compare edwards v. united states dept. of justice, 43 f.3d 312, 316 (7th cir. 1994) for the western district of texas sentrillion filed third-party indemnity and contribution claims under the following its dismissal under the derivative jurisdiction doctrine of the claims 28 u.s.c. § 1442. under the contract disputes act,1 such claims are within the exclusive it for lack of jurisdiction pursuant to the derivative jurisdiction doctrine. the district court initially denied the motion to dismiss, reasoning that the jurisdiction doctrine to extend to removals under other provisions, such as 28 appellant claim, the statutory factors of 28 u.s.c. § 1367(c) and common law factors u.s.c. § 1441. the doctrine therefore continues to apply to cases removed jurisdiction because the state court lacked jurisdiction to adjudicate the ftca marks omitted). the following day, the united states moved to dismiss the claims against alternative, the district court considered the statutory factors under 28 u.s.c. jurisdiction theory”). that the exception is limited to review of orders remanding suits against not precluded from hearing and determining any claim in such civil action removal.18 thus, the procedural limitation on the district court’s ability to hear thus, we affirm the district court’s holding that it was bound by extant not “jurisdictional” in the sense of constituting an essential ingredient of 7 reingold v. swiftships inc., 210 f.3d 320, 321 (5th cir. 2000). case: 13-50790 document: 00512591909 page: 10 date filed: 04/10/2014 8 minnesota v. united states, 305 u.s. 382, 389 (1939) (citing lambert run coal co. 11 emphasis added. case: 13-50790 document: 00512591909 page: 9 date filed: 04/10/2014 states moved to dismiss the day after it removed the case to federal court. it district court first looked to whether dismissal of the ftca claim pursuant to like suit originally brought in a federal court it would have had jurisdiction.”8 doctrine as applied to removals under § 1442 was eliminated when congress from a common nucleus of operative fact. but the district court then separately but sentrillion is mistaken both as a matter of fact and a matter of law. patrick e. higginbotham, circuit judge: the general contractor, on a project for the united states customs and border court’s subject matter jurisdiction19 over these claims; there is a strong case: 13-50790 document: 00512591909 page: 2 date filed: 04/10/2014 explained that “when the [derivative jurisdiction] doctrine is raised promptly 5 2 fifth circuit north dakota v. fredericks, 940 f.2d 333, 337 (8th cir. 1991) (holding that the “policy of remaining claims—lopez’s state law claims against sentrillion—to state court. review the appeal from the remand order. 28 u.s.c. § 1447(d) provides that sentrillion also contends that the district court erred in remanding the which such civil action is removed did not have any jurisdiction over that congress underlying new § 1441(e) supports the complete abandonment of the derivative- that removal under § 1441(a) of the admiralty claims at issue was in error); beighley v. fdic, abrogation of the derivative jurisdiction doctrine to cases removed under 28 and indemnification claims against the united states. that suit remains sentrillion’s ftca claims against the united states because it argues that the jurisdiction over the pendent state-law claims because there is no claim over ii weighed in favor of declining to exercise supplemental jurisdiction over the appellant here), asserting state law claims arising out of a workplace injury the argument that the inaptly named derivative jurisdiction doctrine is jurisdiction doctrine. we review questions of law de novo.7 and clarification act of 2011.2 but it is “well established that, ‘when the court. on the united states’ motion for reconsideration, however, the district 23 see id. (affirming the dismissal of all of appellant’s claims on the basis that he as amended and renumbered, 28 u.s.c. § 1441(f) now provides: “the court to disposition required by the text is not absurd—is to enforce it according to its v. baltimore & ohio r. co., 258 u.s. 377, 383 (1922) and general investment co. v. lake 13 14b charles alan wright & arthur r. miller, et al., federal practice and procedure 17 656 f.3d at 621–25. abrogation of the derivative jurisdiction doctrine without specifying that the abrogation is no. 13-50790 under the ftca. the united states removed the case to federal court under no. 13-50790 lopez filed suit in state court against his employer sentrillion (the protection. sentrillion filed a third party petition in state court against the appellant [was] required to raise it to have any chance of prevailing in this sentrillion urges us to hold that the district court erred in dismissing the case here. lopez urges us to disregard this clear language and hold instead limited to § 1441. but the cases on which sentrillion relies did not involve removals under of declining to exercise supplemental jurisdiction.” it thus remanded lopez’s 28 u.s.c. § 1442(a), the federal officer removal statute, on october 24. for ramon r. vaquera d/b/a yucca contracting, a subcontractor for sentrillion, 19 rodas, 656 f.3d at 622. by its terms the derivative jurisdiction doctrine applies to this case. sentrillion claims. arguing that “the court remanded the state law claims only because it district court dismissed all claims against the united states and remanded the § 1442. see baris v. sulpicio lines, inc., 932 f.2d 1540, 1542 (5th cir. 1991) (matter removed was removed pursuant to section 1442 or 1443 of this title shall be reviewable but any ambiguity about the endurance of the derivative jurisdiction § 1442 as well, a position we declined to take even before the 2002 amendments claim.”11 federal court pursuant to 12 u.s.c. § 1819, a statute that “grants the fdic special removal derivative jurisdiction doctrine did apply to removals under § 1442 but that claim for contribution or indemnification that sentrillion has against the amendment, its result was that § 1441(f) is more clear than former § 1441(e) in abrogating the derivative jurisdiction doctrine, never ceased to be the jurisdictional “hook” jurisdiction did not deprive it of original jurisdiction over sentrillion’s ftca sovereign, is immune from suit save as it consents to be sued.”) (alternations and quotation claims to federal courts in 28 u.s.c. 1346(b)(1). reading the plain language of rather, the united states removed under 28 u.s.c. 1442(a), which provides claim. thus, without original jurisdiction as to the only asserted federal claim, 3 carrieri v. jobs.com inc., 393 f.3d 508, 518 (5th cir. 2004) (quoting lamie v. united jurisdictional and prevented the district court from establishing original which a civil action is removed under this section is not precluded from hearing terms.’”3 “only after we apply principles of statutory construction, including with these claims dismissed, supplemental jurisdiction under 28 u.s.c. § 1367 serve as a jurisdictional anchor for plaintiff’s state law claims.” in the provided the only potential jurisdictional hook for the remaining state law interests of judicial economy, convenience, fairness, and comity weigh in favor claims must be remanded, or whether we determine the district court was supreme court precedent to dismiss sentrillion’s claims against the united remand pending appeal, but both the district court and this court denied the pending, the united states filed a second motion to dismiss, arguing that any no. 13-50790 court. jesus ivan lopez, removals under § 1441. in so holding, we join both circuits to have considered jurisdiction.14 the united states has waived its sovereign immunity to tort sentrillion now appeals both the dismissal and remand. we affirm the district jurisdiction of the court of federal claims. the district court denied the against the united states, the district court granted lopez’s motion to remand third party defendant – appellee 6 28 u.s.c. § 1447(d). raised its third-party claims against the united states in state court, but federal sovereign immunity deprived the state court of subject matter to federal district court under § 1441(b)); in re dutile, 935 f.2d 61, 63 (5th cir. 1991) (holding as an initial matter, lopez argues that this court lacks jurisdiction to sentrillion challenges on appeal only the subject matter jurisdiction basis for the issue since the 2002 amendments and similarly concluded that, “for state law claims that remained after the district court dismissed the ftca 1 41 u.s.c. § 7101 et seq. district court was correct in ruling it lacked jurisdiction, because then the appeal from the united states district court case: 13-50790 document: 00512591909 page: 3 date filed: 04/10/2014 case: 13-50790 document: 00512591909 page: 4 date filed: 04/10/2014 doctrine in place” for removals other than those under § 1441.15 federal tort claims act (ftca) against the united states. the united states, third-party claims against the united states were the only potential basis for construction project for the united states custom and border protection. liability only under the ftca, which grants exclusive jurisdiction over such no. 13-50790 4 20section 1367(c)(3) provides that “[t]he district courts may decline to exercise iv united states on october 4, 2012, seeking contribution and indemnification amended statutory language is clear that the “new § 1441(f) limits the whatever reasons[,] congress intended to keep the [derivative jurisdiction] subject matter or of the parties, the federal court acquires none, although in a defect barring it from original jurisdiction. it determined that the doctrine is filed federal court, the jurisdiction of the federal court is derived from the state 9 exercise supplemental jurisdiction based on the balance of the 28 u.s.c. briefed on appeal are waived.”). (alternations in original)). the amended § 1441(f) as we do, we see little room to question that congress § 1442), and in re elko cnty. grand jury, 109 f.3d 554, 555 (9th cir. 1997) (same), with u.s.c. § 1442.10 before higginbotham, davis, and haynes, circuit judges. appeal.”22 having determined as a preliminary matter that the derivative no. 13-50790 14 see hercules, inc. v. united states, 516 u.s. 417, 422 (1996) (“the united states, as revised the statutory language against sentrillion’s favor.12 but we think the to the state court from which it was removed pursuant to section 1442 or 1443 government arose from its contract with the united states and therefore, because the state court from which such civil action is removed did not have 2 pub. l. no. 112-51, 125 stat. 545 (2011). lyle w. cayce alternative holding that if it possessed original jurisdiction, it would decline to found that the derivative jurisdiction doctrine required it to dismiss the federal original jurisdiction in the district court, as lopez’s state-law claims against states trustee, 124 s. ct. 1023, 1030 (1994)). 10 jurisdiction,” and so “the ftca claim, as removed, is simply too attenuated to amendment provided that “the court to which such civil action is removed is statute a limitation that does not appear there, and hold that we have held, without explicitly citing the derivative jurisdiction doctrine, that a federal court lacked and determining any claim in such civil action because the state court from plaintiff – appellee motion. and it therefore dismissed those claims on july 8, 2013. the derivative 3 united states of america, language that eliminated the application of the derivative jurisdiction. that original federal subject matter jurisdiction over removed actions has purchase, sentrillon corporation, district court’s remand of the state-law claims whether we determine the lopez’s state-law claims against sentrillion.20 16 minnesota, 305 u.s. 382; lambert run, 258 u.s. 377. corporation, a general contractor, for injuries he sustained during a the district court determined that the derivative jurisdiction doctrine united states for lack of jurisdiction on july 8, 2013. any jurisdiction over that claim.”9 following this amendment, courts case: 13-50790 document: 00512591909 page: 1 date filed: 04/10/2014 sentrillion present no federal question and complete diversity is lacking. district court thus dismissed sentrillion’s third-party claims against the sentrillion urges us to hold that the 1986 amendment to § 1441 waived, by not briefing, an appeal of one of the district court’s grounds for dismissal). incorrect in ruling it lacked jurisdiction, because sentrillion did not challenge no. 13-50790 immediately moved to dismiss under the derivative jurisdiction doctrine. the the canons of construction, and conclude that the statute is ambiguous, may against the united states. the district court correctly noted that sentrillion’s derivative jurisdiction only with respect to removals effectuated under § 1441.”) iii claims,” sentrillion alleges this dismissal was in error, and hence so also was basis that sentrillion waived appeal of the § 1367(c) determination.23 18 see also baris v. sulpicio lines, inc., 932 f.2d 1540, 1548 (5th cir. 1991) (referring that occurred on july 25, 2011. at the time of the accident, lopez was working 9 28 u.s.c. § 1441(e) (1987). timely appealed both the dismissal and the remand. it also moved to stay the the district court determined it lacked a “jurisdictional anchor” to assert the state law claims to state court, and it did so explicitly on two grounds. the v. case: 13-50790 document: 00512591909 page: 6 date filed: 04/10/2014 jurisdiction over the remaining state law claims, even if those claims derive no. 13-50790 7 rodas v. seidlin17 that the doctrine is better understood as a procedural bar to 978 f.2d 226, 234–36 (5th cir 1992) (dismissing on sovereign immunity grounds a case by appeal or otherwise.”6 we thus decline lopez’s invitation to read into the jurisdiction doctrine applies to removals under § 1442, we affirm the district no. 13-50790 federal officers, which it alleges was congress’ intent in passing the removal sentrillion argues that the district court erred in dismissing sentrillion’s 8 the order of remand. court granted the motion to dismiss the third party claims against the united § 1367(c) discretion “constituted an independent ground for dismissal below, but we need not decide this issue to affirm the district court’s order abrogated the derivative jurisdiction doctrine with respect to removals under the district court then determined that it lacked supplemental the ftca claims on removal would not “strike[] at the heart” of the district to the “doctrine of derivative removal jurisdiction”) of this title shall be reviewable by appeal or otherwise.” the language of the in the united states court of appeals states under the derivative jurisdiction doctrine.16 no. 13-50790 upon removal prior to adjudication of the merits, the doctrine must be invoked supreme court precedent precluded its earlier finding that the united states § 3721 (4th ed. 2012). while the united states’ motion to dismiss for lack of jurisdiction was remaining state law claims against sentrillion to state court. sentrillion the district court’s remand order, and ignores altogether the district court’s defendant – third party plaintiff- and we find persuasive the recent careful analysis of the seventh circuit in § 1367(c) statutory and common law factors. by not briefing any challenge to which the court had original jurisdiction. it concluded that the doctrine of plainly states that “an order remanding a case to the state court from which it (holding that the derivative jurisdiction doctrine continued to apply to suits removed under court’s jurisdiction. thus, “[w]here the state court lacks jurisdiction of the in turn, removed the case to federal court under 28 u.s.c. § 1442(a) and then the district court’s alternative § 1367(c) basis for remand, sentrillion has stripped it of jurisdiction over the third-party claims against the united states, amended § 1441 in 2002 to add the words “removed under this section.” thus, to dismiss the claims against it. sentrillion filed a second suit in federal the alternative basis for remand and thus waived it. in other words, because remanding the remaining state law claims against sentrillion to state court. 868 f.2d 776, 779–80 n.6 & n.8 (5th cir. 1989) (noting that the fdic removed the action to case: 13-50790 document: 00512591909 page: 7 date filed: 04/10/2014


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