United States District Court, S.D. Alabama, Northern Division
ANGLEA P. MARTIN, Plaintiff,
MARY M. CHAMPION and BRISTOL WEST INSURANCE COMPANY, Defendants.
REPORT AND RECOMMENDATION
BERT W. MILLING, Jr., Magistrate Judge.
The Motion to Dismiss filed by Defendant, the United States of America (hereinafter USA ) (Doc. 3), Motion to Remand filed by Plaintiff Anglea P. Martin (Doc. 7), Motion to Dismiss by Defendant Bristol West Insurance Company (hereinafter Bristol ) (Doc. 13), and a renewed Motion to Remand filed by Plaintiff Martin (Doc. 17) have been referred for report and recommendation, under 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.2. USA has invoked jurisdiction pursuant to the Federal Tort Claims Act (hereinafter FTCA ), codified at 28 U.S.C. §§ 2671-80 (Doc. 1). After consideration of all pleadings of record, the undersigned recommends that Plaintiff's Motion to Remand (Doc. 7) be denied, that Defendant USA's Motion to Dismiss (Doc. 3) be granted, and that Plaintiff's Motion to Remand (Doc. 17) be granted. In connection with these recommendations, it is further recommended that Defendants Champion and the United States of America be dismissed. No recommendation is made as to Defendant Bristol's Motion to Dismiss (Doc. 13).
The facts are, briefly, as follows. On December 2, 2013, Martin and Defendant Mary M. Champion, both United States Postal Service employees, were delivering mail in Wilcox County, Alabama when Champion, the driver and owner of the vehicle, collided with a tree (Complaint, ¶¶ 1-2, 8-10). Plaintiff Martin was injured and, on February 11, 2015, filed this action in the Wilcox County Circuit Court, asserting claims of negligence and wantonness against Champion and breach of contract against Defendant Bristol, her automobile insurance carrier (Complaint). On March 9, 2015, USA, substituting itself for Champion, removed this action to this Court, pursuant to 28 U.S.C. § 1442(a)(1), and asserted that Defendant Champion was a Postal Service employee acting with the scope of her employment at the time of the accident (Doc. 1).
On March 13, 2015, USA filed a Motion to Dismiss (Doc. 3) to which Plaintiff has responded (Doc. 16). On April 3, Martin filed a Motion to Remand (Doc. 7) to which USA has responded (Doc. 15). On April 21, Bristol filed a Motion to Dismiss (Doc. 13); no response has been filed to this Motion. On May 14, Martin filed a second Motion to Remand (Doc. 17) to which USA has responded (Doc. 19).
The Court must first determine that it has jurisdiction over this action. In a removal action, the party asserting jurisdiction has the burden of establishing proof of it by a preponderance of the evidence. McNutt v. General Motors Acceptance Corp. of Indiana, Inc., 298 U.S. 178 (1936); see also Lowery v. Alabama Power Co., 483 F.3d 1184, 1210 (11th Cir. 2007), cert. denied sub nom Hanna Steel Corp. v. Lowery, 553 U.S. 1080 (2008). In a removal action, that burden is upon the defendant. Wilson v. Republic Iron & Steel Co., 257 U.S. 92 (1921). Removal is a statutory remedy that must be narrowly construed so as to limit federal jurisdiction. Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100 (1941); Robinson v. Quality Ins. Co., 633 F.Supp. 572 (S.D. Ala. 1986).
The Court notes that any civil action over which the district court would have had original jurisdiction may be removed by the defendant to the district court for the district in which the action is pending. 28 U.S.C. § 1441(a). In the removal action, Defendant points to statutory support for its argument that this Court has jurisdiction (Doc. 1, ¶ 5):
Subject to the provisions of chapter 171 of this title, the district courts, together with the United States District Court for the District of the Canal Zone and the District Court of the Virgin Islands, shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, accruing on and after January 1, 1945, 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, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.
28 U.S.C. § 1346(b)(1). In her Response to USA's Motion to Dismiss, Martin concedes that this Court has jurisdiction in this action (Doc. 16, p. 2).
The undersigned finds that USA properly removed this action from the Wilcox County Circuit Court as this Court has exclusive jurisdiction over it under § 1346. Therefore, it is recommended that Martin's Motion to Remand be denied (Doc. 7).
The Court will now take up USA's Motion to Dismiss (Doc. 3). Therein, Defendant argues that the FTCA bars Martin's action against Champion as USA has substituted itself for her (Doc. 3, pp. 2-3). Statutory language supports this argument:
The remedy against the United States provided by sections 1346(b) and 2672 of this title for injury or loss of property, or personal injury or death arising or resulting from the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment is exclusive of any other civil action or proceeding for money damages by reason of the same subject matter against the employee whose act or omission gave rise to the claim or against the estate of such employee. Any other civil action or proceeding for money damages arising out of or relating to the same subject matter against the employee or the employee's estate is precluded without regard to when the act or omission occurred.
28 U.S.C. § 2679(b)(1).
USA further argues that because Martin is receiving benefits under the Federal Employees' Compensation Act (hereinafter FECA ), she cannot "double dip" by receiving funds from the FTCA (Doc. 3, pp. 3-4). FECA provisions support this argument:
The liability of the United States or an instrumentality thereof under this subchapter or any extension thereof with respect to the injury or death of an employee is exclusive and instead of all other liability of the United States or the instrumentality to the employee, his legal representative, spouse, dependents, next of kin, and any other person otherwise entitled to recover damages from the United States or the instrumentality because of the injury or death in a direct judicial proceeding, in a civil action, or in admiralty, or by an administrative or judicial proceeding under a workmen's ...