UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

CAROLYN S. DENNIS )

 )

Plaintiff, )

 )

v. ) CAUSE NO.: 1:14-CV-248-TLS

 )

PATRICK R. DONOHOE, )

Postmaster General of the United States, and )

UNITED STATES POSTAL SERVICE )

 )

Defendants. )

OPINION AND ORDER

The Plaintiff, Carolyn S. Dennis, sued the Postmaster General and the United States

Postal Service under Title VII of the Civil Rights Act of 1964. This matter is before the Court on

the Government’s Motion to Dismiss for Lack of Jurisdiction [ECF No. 7]. For the following

reasons, the Motion is denied. 

PROCEDURAL BACKGROUND

On August 18, 2013, the Plaintiff filed an Equal Employment Opportunity (EEO)

Complaint against the Postal Service [ECF No. 3 at 5], alleging employment discrimination on

the basis of race, color, and sex, and charging retaliation. On February 12, 2014, the Postal

Service issued a Final Agency Decision [ECF No. 3 at 14] denying her claims. The Final Agency

Decision provided notice to the Plaintiff of her right to file a civil action in United States District

Court within 90 days. On May 8, 2014, the Plaintiff filed this civil action in the Allen Superior

Court, Allen County, Indiana [ECF No. 3], and tendered summonses for the Postmaster General
and the Postal Service. On August 14, 2014, the Government removed the case to this Court 1

pursuant to 28 U.S.C. §§ 1442(a)(1) and 1446(b) [ECF No. 1]. The record reflects that the

Plaintiff did not tender summonses to either the United States Attorney or the United States

Attorney General prior to the case’s removal on August 14, 2014; although the Plaintiff did

tender an alias summons to the United States Attorney on August 28, 2014 [ECF No. 10]. 

On August 19, 2014, the Government filed a Motion to Dismiss for Lack of Jurisdiction

[ECF No. 7] and a Memorandum in Support of the Motion to Dismiss [ECF No. 8] pursuant to

Federal Rule of Civil Procedure 12(b)(1). The Plaintiff filed a Response [ECF No. 9] on

September 4, 2014, and the Government filed a Reply [ECF No. 13] on September 16, 2014.2

ANALYSIS

In the Government’s Motion to Dismiss, it asserts that this Court lacks subject matter

jurisdiction over the Plaintiff’s civil action because, prior to removal to federal court, the Plaintiff

failed to properly file suit in state court within the statute of limitations for Title VII actions

against a federal employer. The Government specifically relies on the doctrine of derivative

jurisdiction. The Plaintiff contends, in part, that the doctrine of derivative jurisdiction is

Both parties agree that the Postmaster General is the only proper defendant in this case. See 1

McGuinness v. U.S. Postal Serv., 744 F.2d 1318, 1322 (7th Cir. 1984) (“The only proper defendant in a

Title VII suit is the head of the agency accused of having discriminated against the plaintiff.”). This

distinction, however, is a technical one. Loeffler v. Frank, 486 U.S. 549, n. 8 (1988) (“Whenever the

head of the Postal Service acts in his official capacity, he is acting in the name of the Postal Service.”). 

The Court notes that the Plaintiff has filed four separate lawsuits in federal district court over 2

the last seven years— including the present lawsuit—all alleging Title VII claims against the Postal

Service. See Dennis v. Donohoe, 2012 WL 1577445 (N.D. Ind. 2012); Dennis v. Potter (1:11-cv-58);

Dennis v. Potter, 2010 WL 987217 (N.D. Ind. 2012). The Plaintiff’s allegations in each case arose from

separate incidents involving her employment with the Postal Service. 

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inapplicable here; and accordingly, 28 U.S.C. § 1448 and Federal Rule of Civil Procedure 4(m)

allow the Plaintiff up to 120 days from the date of removal to perfect service. 

A. Subject Matter Jurisdiction 

Indeed, “[n]o court may decide a case without subject-matter jurisdiction, and neither the

parties nor their lawyers may stipulate to jurisdiction or waive arguments that the court lacks

jurisdiction.” United States v. Cnty. of Cook, Ill., 167 F.3d 381, 387 (7th Cir. 1999). Federal

jurisdiction “upon removal, pursuant to 28 U.S.C. § 1442, is essentially derivative of that of the

state court.” Edwards v. U.S. Dep’t of Justice, 43 F.3d 312, 316 (7th Cir. 1994) (quoting Arizona

v. Manypenny, 451 U.S. 232, 242 n.17 (1981). Under the derivative jurisdiction doctrine,

“[w]here the state court lacks jurisdiction of the subject matter or of the parties, the federal court

acquires none.” Id. (quoting Minnesota v. United States, 305 U.S. 382, 389 (1939)). “Therefore,

the state court must initially have jurisdiction to review the agency’s decision for the district

court to similarly acquire such authority on removal.” Id. at 315. 

Here, the Plaintiff filed in state court a civil action under Title VII, which is the exclusive

remedy for discrimination suits by federal employees against federal agencies. 42 U.S.C. §

2000e-16(c). Because the Plaintiff’s suit is against the United States Postal Service it is also

governed by 39 U.S.C. § 409, which grants concurrent jurisdiction to state courts “over all

actions brought by or against the Postal Service.” 39 U.S.C. § 409(a) (“[T]he United States

district courts shall have original but not exclusive jurisdiction over all actions brought by or

against the Postal Service.”); see also Powers v. U.S. Postal Serv., 671 F.2d 1041, 1042 (7th Cir.

1982) (§ 409(a) “gives the federal courts, concurrently with the state courts jurisdiction over suits

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by or against the Postal Service.”). 

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Therefore, the Court may adjudicate this case, unless subject matter jurisdiction is lacking

due to the Plaintiff’s failure to properly file suit within Title VII’s statute of limitations. §

2000e-16(c). 

1. Title VII Statute of Limitations

Under § 2000(e)-16(c), a civil action must be commenced within 90 days of receipt of a

final agency decision. Id. The record shows that the Plaintiff received a Final Agency Decision

on February 12, 2014, and was granted 90 days—up to, and including May 13, 2014—to file a

civil action. The Plaintiff filed a Complaint in state court on May 8, 2014, a date within the

90-day filing deadline. However, at the time of filing, the Plaintiff served the Postmaster General

and the United States Postal Service, but did not serve either the United States Attorney nor the

United States Attorney General, as required by Federal Rule of Civil Procedure 4(i). In Indiana, 4

The Government’s brief includes a footnote stating that “[t]he United States for purposes of this 3

motion to dismiss does not choose to challenge whether plaintiff filed in the proper forum.” (Def’s Mem.

in Supp. of Mot. to Dismiss 4.) It should be noted that in Bullock v. Napolitano, a split Fourth Circuit

panel held that Congress provided for exclusive jurisdiction in federal courts for Title VII suits against

federal employers. 666 F.3d 281, 286 (4th Cir. 2012). Because the plaintiff in Bullock originally filed his

Title VII suit in state court, the majority held that the derivative jurisdiction doctrine required the federal

district court, upon removal from state court, to dismiss the case under Rule 12(b)(1) for lack of subject

matter jurisdiction. Id. As the Government noted, the Seventh Circuit has not taken up this issue.

Regardless, because the Plaintiff’s suit is governed by § 409(a)—which grants concurrent jurisdiction to

state courts “over all actions brought by or against the Postal Service,” and moreover, does not include an

exception for Title VII claims—this issue need not be considered here. § 409(a) (emphasis added). 

Rule 4(i)—which applies to cases brought under § 409, even when litigating in state 4

court—requires a plaintiff to serve (1) the United States Attorney for the district where the action is filed,

or an assistant United States attorney or clerical employee whom the United States attorney designates in

writing filed with the court clerk; (2) the United States Attorney General; and (3) the federal agency or

officer of the United States whose action(s) is being challenged. Fed. R. Civ. P. 4(i)(1). 

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a civil action is not timely commenced if the plaintiff files a complaint within the applicable

statute of limitations but does not tender the “necessary” summonses to the clerk within the

statutory period. Ray-Hayes v. Heinamann, 760 N.E.2d 172, 174 (Ind. 2002), rev’d on other

grounds, Ray-Hayes v. Heinamann, 768 N.E.2d 899 (Ind. 2002); Ind. R. of Ct. 3. Thus, the

Plaintiff’s failure to serve the necessary summonses triggered a violation of the statute of

limitations. 

Title VII’s statute of limitations is a condition to the waiver of sovereign immunity—and

generally, such “conditions upon which the Government consents to be sued must be strictly

observed and exceptions thereto are not to be implied.” Lehman v. Nakshian, 453 U.S. 156, 161

(1981) (quoting Soriano v. United States, 352 U.S. 270, 276 (1957). However, in Irwin v.

Department of Veterans Affairs, the Supreme Court held that the statutes of limitation in Title

VII suits against the United States or one of its agencies are subject to the equitable remedies of

estoppel and tolling. 498 U.S. 89, 95–96 (1990). According to the Court, “[s]uch a principle is. . .

a realistic assessment of [the] legislative intent [of Title VII] as well as a practically useful

principle of interpretation.” Id. at 95. As the Seventh Circuit noted, Irwin’s holding “is

incompatible with a ‘jurisdictional’ characterization of a statute of limitations.” Wis. Valley

Improvement Co. v. United States, 569 F.3d 331, 333 (7th Cir. 2009) (“After Irwin . . . it is hard

to understand how a ‘jurisdictional’ tag may be attached to any period of limitations, whether or

not the United States is a party”); see also Schmidt v. United States, 933 F.2d 639, 640 (8th Cir.

1991) (“Necessary to [Irwin’s] expressed holding is an implied holding that strict compliance

with the statute of limitations [of Title VII] is not a jurisdictional prerequisite to suing the

government. If the statute of limitations were jurisdictional, the court would have no power to

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consider tolling it”). The message from Irwin is clear: Title VII’s statute of limitations is not a

jurisdictional barrier to relief. 

Nonetheless, in support of its derivative jurisdiction theory, the Government cites several

cases, most of which involve a diversity suit removed to federal court. See Marshall v. Warwick,

155 F.3d 1027 (8th Cir. 1998); Witherow v. Firestone Tire & Rubber Co., 530 F.2d 160 (3d Cir.

1976); Morton v. Meagher, 171 F. Supp. 2d 611 (E.D. Va. 2001). In each case, the court

dismissed a state-created action that, prior to removal, was time-barred by a state statute of

limitations. See, e.g., Morton, 171 F. Supp. 2d at 615 (removal to federal court “does not

retroactively extend the time limits prescribed by state law in cases where service was untimely

before the action is removed.”); Marshall, 155 F.3d at 1033 (8th Cir. 1998) (“We do not believe

that [removal to federal court] can ‘resurrect’ a . . . diversity case which would have been

dismissed as time-barred had it remained in state court.”).

However, none of the aforementioned cases cited by the Government were premised on

the derivative jurisdiction doctrine, or even subject matter jurisdiction in general. Instead, each

case involved a state cause of action and a state statute of limitations; and as a result, each case

was premised on non-jurisdictional considerations of comity and federalism. See, e.g., Morton,

171 F. Supp. 2d at 615 (“[I]t is contrary to the correlative doctrines of comity and federalism to

allow a case that would be dead under state law to be revived upon removal by a federal court

applying the same state law that would have led to the termination of the case in the state

court.”). In contrast, the cause of action, statute of limitations and service requirements in this 5

Although the court in Witherow referenced the derivative jurisdiction doctrine, it also made 5

clear “that, unlike subject matter jurisdiction, the statute of limitations [at issue] is a waivable affirmative

defense.” 530 F. Supp. 2d at 168. And like Morton and Marshall, Witherow is premised on comity and

6
case are all dictated by federal law. 39 U.S.C. § 409; 42 U.S.C. § 2000(e)-16(c). Thus, the comity

and federalism considerations here are far more limited.6

Moreover, outweighing any comity and federalism considerations here are the

countervailing federal goals of Title VII—a statute with the broad purpose of “stamp[ing] out

discrimination” on the basis of race, color, religion, sex, or national origin. Hayden v. La-Z-Boy

Chair Co., 9 F.3d 617, 619 (7th Cir. 1993); see also Rennie v. Garrett, 896 F.2d 1057, 1059 (7th

Cir. 1990). By declaring the Plaintiff’s Title VII suit as “dead” in state court due to procedural

error, the Court would be rejecting controlling authority that requires a more flexible application

of Title VII’s procedural requirements. See Irwin, 498 U.S. at 95; Zipes v. Trans World Airlines,

Inc., 455 U.S. 385, 896 (1982) (emphasizing the “remedial purpose of [Title VII]” when

construing its procedural requirements); Rennie, 896 F.2d at 1061 (citing Zipes, 455 U.S. at

394–95). 

Accordingly, neither the derivative jurisdiction doctrine, nor the non-jurisdictional

considerations of comity and federalism prevent the Court from adjudicating this case upon

removal.

federalism considerations. See id. (“We discern valid reasons supporting the application of state law. And

we perceive at work here no federal affirmative countervailing considerations.”) (internal quotation

marks and citation omitted). 

Even in cases where non-adherence to a state statute of limitations is at issue, disagreement 6

exists among federal courts as to the propriety of the decisions cited by the Government. See Baumeister

v. N.M. Comm’n for the Blind, 409 F. Supp. 2d 1351, 1353 (D. N.M. 2006) (rejecting dismissal because

“[t]here is nothing . . . that points to the inexorable conclusion that a federal court must dismiss a case in

which a plaintiff would have been subject to a motion to dismiss for improper or untimely service at the

state level.”); Lawrence v. Hanson, 197 F. Supp. 2d 533, 539 (W.D. Va. 2002) (rejecting dismissal

because “it is the defendant who makes the decision to remove the case to federal court and restarts the

clock.”) (internal quotation marks and citation omitted)). 

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B. Opportunity to Perfect Service

The Government appears to admit that, absent a jurisdictional bar, 28 U.S.C. § 1448 and

Federal Rule of Civil Procedure 4(m) permit the Plaintiff an opportunity to perfect service upon

removal. (Def’s Mem. in Supp. of Mot. to Dismiss 5.) Section 1448 provides that: 

In all cases removed from any State court to any district court of the United States in

which any one or more of the defendants has not been served with process or in which the

service has not been perfected prior to removal, or in which process served proves to be

defective, such process or service may be completed or new process issued in the same

manner as in cases originally filed in such district court.

28 U.S.C. § 1448; see Fed. R. Civ. P. 4(m) (allowing 120 days to provide service following the

original filing of a civil action in district court). Furthermore, a district court may in its discretion

grant an extension of time to perfect service under Rule 4(m), with or without a showing of good

cause. Troxell v. Fedders of N. Am., Inc., 160 F.3d 381, 383 (7th Cir. 1998); Panaras v. Liquid

Carbonic Indus., Corp., 94 F.3d 338, 341 (7th Cir. 1996). The Advisory Committee’s Note to

Rule 4(m) specifically states that courts should provide an extension to perfect service “to correct

oversights in compliance with the requirements of multiple service in actions against the United

States or its officers, agencies, and corporations,” and also in cases where “the applicable statute

of limitations would bar the refiled action.” Fed. R. Civ. P. 4(m) advisory committee’s note. 

Accordingly, the Court is persuaded that, upon removal, the Plaintiff—who, again, did

file her Complaint in state court within the 90-day filing period, but failed to serve all of the

necessary summonses—was entitled to 120 days to perfect service against the United States and

its officers. This interpretation is not only consistent with § 1448 and Rule 4(m), but also the

underlying goals of the Federal Rules of Civil Procedure. See Foman v. Davis, 371 U.S. 178, 181

(1962) (“It is . . . entirely contrary to the spirit of the Federal Rules of Civil Procedure for

8
decisions on the merits to be avoided on the basis of [] mere technicalities”); Baumeister, 409 F.

Supp. 2d at 1353 (“Given the strong policy underlying the Federal Rules of reaching the merits of

an issue . . . it seems the interplay of § 1448 and Rule 4(m) actually encourages courts to direct

plaintiffs to perfect service”). Further, the Government has not provided any indication that it

would suffer prejudice if the Plaintiff were to be granted an opportunity to perfect service. See

Brazell v. Green, 67 F.3d 293, at *1 (4th Cir. 1995) (permitting the plaintiff to perfect service

because “the defendants had notice of the suit and do not claim to have been prejudiced by [the

plaintiff’s] failure to properly serve them.”) 

As such, the Plaintiff should be given an opportunity to perfect service in accordance with

39 U.S.C. § 409 and Federal Rule of Civil Procedure 4(i). 

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CONCLUSION

For the foregoing reasons, the Government’s Motion to Dismiss Complaint Pursuant to

Rules 12(b)(1) is DENIED. The Court GRANTS the Plaintiff thirty (30) days from the date of

this Order in which to properly serve all pleadings (including a summons and Complaint) on both

the United States Attorney for the Northern District of Indiana and the Attorney General of the

United States. As to all pleadings filed by the Plaintiff henceforth, the Plaintiff is ORDERED to

comply fully with the Federal Rules of Civil Procedure and with the service of process

The Plaintiff briefly references the Government’s failure to file a notice of removal within 30

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days after service of the Complaint, as required by 28 U.S.C. § 1446(b). (Pl’s Mem. in Opp. to Mot. to

Dismiss 2.) However, considering that the Plaintiff is relying, in part, on § 1448 to perfect service upon

removal, and moreover, has not filed a motion for remand to state court, the Plaintiff has effectively

waived any objection to the 30-day requirement. See Pettitt v. Boeing Co., 606 F.3d 340, 342–43 (7th

Cir. 2010). 

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requirements set forth in Rule 4. The Plaintiff is advised that failure to perfect service within

thirty (30) days from the date of this Order will result in the dismissal of her claims.

Additionally, because the Postmaster General is the only proper defendant here, the United States

Postal Service is DISMISSED as a party in this case. 

SO ORDERED on February 12, 2015.

 s/ Theresa L. Springmann 

THERESA L. SPRINGMANN

UNITED STATES DISTRICT COURT

FORT WAYNE DIVISION

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