IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF INDIANA

FORT WAYNE DIVISION

CASSANDRA AXSON, )

 )

Plaintiff, )

 )

vs. ) CAUSE NO. 1:16-cv-322

 )

MICHAEL REYNOLDS and )

VIRGIL GONZOLES, )

 )

Defendants. )

OPINION AND ORDER

This matter is before the Court on the Motion for Summary

Judgment, filed by the United States of America, on October 21,

2016 (DE #17). For the reasons set forth below, the motion (DE

#17) is GRANTED. This case is DISMISSED WITHOUT PREJUDICE for lack

of derivative jurisdiction. The remaining pending motions (DE ##

22, 23, 27, 29, 31, 34, and 40), are DENIED AS MOOT. 

BACKGROUND

Pro se plaintiff, Cassandra Axson, originally filed this case

in the Allen Superior Court Small Claims Division. On September 1,

2016, Defendants Reynolds and Gonzalez filed a notice of removal

pursuant to 28 U.S.C. § 1442. (DE #1.) On October 5, 2016, the

United States filed notices of substitution as to Michael Reynolds

(who was employed by the Social Security Administration (“SSA”)),

and Virgen Gonzalez (whose name is misspelled in the caption, and
who was also employed by the SSA). Axson alleges that she was

damaged as a result of their negligence during actions taken within

the scope of their employment. (DE ##12, 13.) 

Axson’s claims are difficult to decipher, but they seem to

stem from an interaction with Gonzalez and Reynolds at the Fort

Wayne SSA Field Office regarding the denial of her federal benefits

for a period of time. Gonzalez was the District Manager of the

Fort Wayne SSA Field Office during July 2012. Reynolds is now

retired, but was the District Manager of the Fort Wayne SSA Field

Office. A search showed that no final decision from the

Commissioner of the SSA was ever issued to Axson regarding her

benefits, and that Axson has not filed an administrative claim with

the SSA under the Federal Tort Claims Act (“FTCA”). (Gonzalez Dec.

¶ 2; Dell’aglio Dec. ¶ 5.) 

On October 21, 2016, the United States filed a motion for

summary judgment, arguing the case should be dismissed for a number

or reasons, including that the Allen Superior Court Small Claims

Division lacked subject matter jurisdiction over any claims for

money damages arising out of the alleged negligence of federal

employees; therefore, this Court did not acquire derivative

jurisdiction from the state court. (DE ##17, 18.) In accordance

with Timms v. Frank, 953 F.2d 281, 285 (7th Cir. 1992), the United

States properly gave pro se Plaintiff notice of the motion for

summary judgment and cited the rules detailing the requirements for

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her response. (DE #19.) To date, Axson has not filed a response

to the motion for summary judgment.

Axson has, however, filed a whole slew of other motions

including, inter alia, an amended motion to remand (DE #22); an

amended motion for the judge to intervene (DE #23); a motion to

dismiss on the grounds of perjury (DE #27); a motion to prevent the

attorney to argue that a state statute conflicts with a federal

statute (DE #31); and a motion for leave to proceed in forma

pauperis (DE #40).

 This Court must first determine if it possesses jurisdiction

over this matter. If it does not, the Court does not have the

authority to rule on these motions, and the case must be dismissed

without prejudice.

DISCUSSION

This Court must first consider the threshold jurisdiction

issue. “Jurisdiction of the federal court on removal is, in a

limited sense, a derivative jurisdiction. Where the state court

lacks jurisdiction of the subject matter or of the parties, the

federal court acquired none, although in a like suit originally

brought in a federal court it would have had jurisdiction.” AbuHumos v. First Merit Bank, No. 15-cv-6961, 2015 WL 7710374, at *1

(N.D. Ill. Nov. 30, 2015) (quoting Minnesota v. United States, 305

U.S. 382, 389 (1939)).

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Axson’s complaint is difficult to decipher, yet it seems that

she is contesting the suspension of her SSDI benefits and

complaining that the federal SSA employees were negligent and

failed to properly do their jobs. In her motion to remand, Axson

refers to Indiana Code § 34-13-3-5 in support of the proposition

that she can sue in state court an employee of a governmental

entity if their employee was not acting within the scope of their

employment. (DE #33.) Yet section § 34-13-3-5 is a statute under

the Indiana Tort Claims Act, which is applicable only to state

governmental entities of the State of Indiana and its employees. 

I.C. § 34-6-2-49; see also Baker v. Schafer, 922 F.Supp. 171 (S.D.

Ind. 1996). 

Defendants Reynolds and Gonzalez have been certified under the

FTCA as acting within their scope of employment; therefore, Axson’s

claim of negligence is really against the United States and the

exclusive remedy for tort claims against the United States for

money damages is the FTCA. Feres v. United States, 340 U.S. 135,

140 (1950); 28 U.S.C. §§ 1346(b), and 2679(a)-(b)(1); see also

Couch v. United States, 694 F.3d 852, 856 (7th Cir. 2012) (stating

“the FTCA is a limited waiver of the Untied States’ sovereign

immunity” and it “is the exclusive remedy for any tort claim

resulting from the negligence of a government employee acting

within the scope of employment”).

However, an FTCA claim must be initiated in federal court. 

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See Alinsky v. United States, 415 F.3d 639, 643 (7th Cir. 2005)

(stating the “FTCA grants federal courts jurisdiction over” damages

claims against the United States for negligence by a government

employee); Midwest Knitting Mills, Inc. v. United States, 950 F.2d

1295, 1297 (7th Cir. 1991); Abu-Humos, 2015 WL 7710374, at *1

(holding “while common law torts are cognizable under the FTCA,

state courts lack jurisdiction over such claims.”).1

Because exclusive jurisdiction under the FTCA was only in

federal court, the Allen Superior Court Small Claims Division

lacked subject matter jurisdiction over any claims for money

damages arising out of the alleged negligence of the federal

employees. Furthermore, the state court lacked jurisdiction to

hear the claims of negligence, and upon removal, this Court

acquired no derivative jurisdiction from the state court. See

Rodas v. Seidlin, 656 F.3d 610, 615-16 (7th Cir. 2011); Edwards v.

United States Dep’t of Justice, 43 F.3d 312, 316 (7th Cir. 1994);

Fedorova v. Wells Fargo and Co., No. 16 C 1810, 2016 WL 2937447, at

*2 (N.D. Ill. May 20, 2016); Abu-Humos, 2015 WL 7710274, at *1-2. 

Rodas recognized a limited exception for the derivative

jurisdiction rule for removals under section 1442 where a motion to

dismiss is made after removal, but only where the case has already

been decided on the merits. Rodas, 656 F.3d at 619-25. Here, the

1 There also is no indication that Axson complied with the

administrative exhaustion requirements before seeking to bring a FTCA claim. 

See Augutis v. United States, 732 F.3d 749, 752 (7th Cir. 2013). 

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case has not been decided on the merits, and dismissal without

prejudice is the proper result. See Abu-Humos, 2015 WL 7710374, at

n.1 (“dismissal is strongly indicated when the issue is raised

before any substantive matters have been addressed.”). 

Finally, as this dismissal is without prejudice to Axson

filing another complaint with a court with proper original

jurisdiction, Axson is cautioned that any subsequent complaint

should state a valid cause of action against each defendant,

satisfy any exhaustion requirements, comply with Federal Rule of

Civil Procedure Rule 8 in stating a short and plain statement for

relief, and have proper service. 

CONCLUSION

For the reasons set forth above, the motion for summary

judgment (DE #17) is GRANTED. This case is DISMISSED WITHOUT

PREJUDICE for lack of derivative jurisdiction. The remaining

pending motions (DE ## 22, 23, 27, 29, 31, 34, and 40), are DENIED

AS MOOT. 

DATED: February 7, 2017 /s/RUDY LOZANO, Judge

United States District Court

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