Novak v. Hernandez

Opinion

FILED IN THE EASTERU N. S D. I SD TI RS IT CR TI C OT F C WO AU SR HT I NGTON Nov 10, 2021

UNITED STATES DISTRICT COURT SEAN F. MCAVOY, CLERK EASTERN DISTRICT OF WASHINGTON THOMAS NOVAK, No. 2:21-cv-00157-SMJ Plaintiff, ORDER GRANTING v. DISMISS JOHN HERNANDEZ, Defendant.

Before the Court is Defendant John Hernandez’s Motion to Dismiss for Lack of Jurisdiction, ECF No. 7. Plaintiff, proceeding pro se, opposes the motion, ECF No. 18. Having reviewed the pleadings and the file in this matter, the Court is fully informed and grants the motion. On February 22, 2021, Plaintiff Thomas Novak filed a lawsuit against FBI Task Force Officer John Hernandez (“TFO Hernandez”) in the Small Claims Department of the District Court of Spokane County, Washington. ECF No. 1-1. The lawsuit stems from a minor vehicle accident in which Mr. Novak allegedly sideswiped TFO Hernandez’s federal law enforcement vehicle. At the time of the accident, TFO Hernandez was acting as a federal law enforcement officer. ECF No. 2 at 2. Despite being cited as at-fault for the accident, Mr. Novak sued TFO

Hernandez, claiming $4,000 in damages sustained to his vehicle. ECF No. 1-1. Plaintiff’s Complaint alleges TFO Hernandez treated him poorly while exchanging information and appears to suggest that TFO Hernandez persuaded

the investigating Spokane Police Officer to find Mr. Novak at fault for the accident. Id. On May 6, 2021, TFO Hernandez removed the lawsuit to this Court under the federal officer removal statute. ECF No. 1. Shortly thereafter, TFO

Hernandez filed a motion to dismiss Plaintiff’s lawsuit under the derivative jurisdiction doctrine. After being granted several final opportunities to respond, Mr. Novak filed a one-page response and accompanying declaration of a

third-party witness. Both the response and declaration address only the merits of Plaintiff’s claim—not the jurisdictional issue raised by Defendant. The jurisdiction of the federal courts is limited to “cases” and

“controversies.” U.S. CONST. art. III, § 2. If a federal court determines at any time that it lacks subject matter jurisdiction, it must dismiss the action. Fed. R. Civ. P. 12(h)(3).

A plaintiff may not sue a federal officer acting within the scope of his duty in a state court. Rodriguez v. United States, 788 F. App’x 535, 536 (9th Cir.

2019) (“The FTCA’s limited waiver of the United States’ sovereign immunity does not extend to suits filed in state court.”). Accordingly, the Washington state court where Plaintiff filed his claim lacked subject matter jurisdiction. In turn, this case

must be dismissed under the derivate jurisdiction doctrine. The derivative jurisdiction doctrine provides that if a state court lacks jurisdiction over a case, a federal court does not acquire jurisdiction on removal. Minnesota v. United States, 305 U.S. 382, 235 (1939). Although the doctrine has been abolished with respect to

the general removal statute, 28 U.S.C. § 1441(a), the Ninth Circuit has repeatedly held that the doctrine still applies to the federal officer removal statute. See, e.g., Cox v. U.S. Dep’t of Agric., 800 F.3d 1031, 1032 (9th Cir. 2015).

Because the state court lacked subject matter jurisdiction over Plaintiff’s lawsuit and Defendant removed it under the federal officer removal statute, this Court does not have jurisdiction to hear this matter and it must be dismissed. Accordingly, IT IS HEREBY ORDERED:

1. Defendant’s Motion to Dismiss for Lack of Jurisdiction, ECF No. 7, is GRANTED. 2. Defendant’s Second Motion to Dismiss, ECF No. 20, is DENIED AS

3. Plaintiff's claims against Defendant are DISMISSED WITHOUT 4. The Clerk’s Office is DIRECTED to ENTER JUDGMENT and CLOSE the file.

IT IS SO ORDERED. The Clerk’s Office is directed to enter this Order and provide copies to all counsel.

DATED this 10% day of November 2021. g pat betes United States District Judge