UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF INDIANA 

CASSANDRA AXSON, ) 

 ) 

 Plaintiff, ) 

 ) 

 v. ) CAUSE NO.: 1:16-CV-343-TLS 

 ) 

JORGE ORTIZ, ) 

(United States of America in substitution ) 

For Jorge Ortiz, effective as of 10/5/16) ) 

 ) 

Defendant. ) 

OPINION AND ORDER 

This matter is before the Court on the Motion to Dismiss [ECF No. 7], filed by the United 

States of America on October 17, 2016. For the reasons set forth below, the Court grants the 

Motion. 

BACKGROUND 

The pro se Plaintiff, Cassandra Axson, originally filed this case on September 1, 2016, in 

the Allen Superior Court Small Claims Division. The Plaintiff alleges that she was harmed 

because the Defendant, Jorge Ortiz, was negligent in connections with actions he took within the 

scope of his employment. (Notice of Claim, ECF No. 4.) On September 23, 2016, the Defendant 

filed a Notice of Removal [ECF No. 1] pursuant to 28 U.S.C. § 1442. On October 5, 2016, the 

United States filed a Notice of Substitution [ECF No. 5], substituting the United States of 

America in place of Jorge Ortiz pursuant to the Federal Torts Claims Act (FTCA), 28 U.S.C. 

§ 2679. 

On October 17, 2016, the Government filed the Motion to Dismiss, arguing that the case 

should be dismissed because the Allen Superior Court Small Claims Division lacked subject-
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matter jurisdiction over any claims for monetary damages arising out of the alleged negligence of 

a federal employee and thus, this Court did not acquire derivative jurisdiction from the state 

court. In the alternative, the Government argues that the Plaintiff has failed to state a claim upon 

which relief may be granted, and that there has been no service of process in this case. On 

October 12, 2016, United States Magistrate Judge Susan Collins issued an Order [ECF No. 6] 

directing the Plaintiff to file a response to the Motion on or before November 3, 2016, pursuant 

to Lewis v. Faulkner, 689 F.2d 100 (7th Cir. 1982) and Timms v. Frank, 952 F.2d 281 (7th Cir. 

1992). To date, the Plaintiff has not filed a response to the Motion to Dismiss. 

On December 5, 2016, the Plaintiff submitted an additional filing [ECF No. 14], which 

she also submitted in connection with another parallel litigation she filed on the same issue 

against employees at the Fort Wayne Social Security Office. That case has since been dismissed 

without prejudice. See Axson v. Reynolds, No. 1:16-CV-322, 2017 WL 495694 (N.D. Ind. Feb. 7, 

2017). The Plaintiff’s additional filing contains several attachments in furtherance of her 

argument that she has not received her Social Security Disability Insurance (SSDI) benefits, 

including her bank record and a record of a complaint she made with the Fort Wayne Social 

Security Office. 

STANDARD OF REVIEW

This Court must first consider the threshold jurisdictional 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.” Axson, 2017 

WL 495694, at *2 (quoting Minnesota v. United States, 305 U.S. 382, 389 (1939)); see also Abu-
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Humos v. First Merit Bank, No. 15-CV-6961, 2015 WL 7710374, at *1 (N.D. Ill. Nov. 30, 

2015). 

ANALYSIS

The Plaintiff’s claims are difficult to decipher, but they appear to stem from an 

interaction she had with Mr. Ortiz regarding the termination of her SSDI payments and her 

subsequent dissatisfaction with the efforts of the Office of the United States Senator Joe 

Donnelly to intercede of her behalf. At the time of the interaction, Mr. Ortiz was an employee at 

the Office of Senator Donnelly. 

Because Mr. Ortiz has been certified [ECF No. 5–1] under the FTCA as acting within the 

scope of his employment, the Plaintiff’s claim of negligence is really against the United States. It 

is well established that “[t]he United States, as sovereign, is immune from suit save as it consents 

to be sued,” and hence may be sued only to the extent that it has waived sovereign immunity by 

enacting a statute consenting to the suit. United States v. Sherwood, 312 U.S. 584, 586 (1941). 

“[T]he FTCA is a limited waiver of the United 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.” Couch v. United States, 694 F.3d 852, 856 (7th Cir. 

2012); see also 28 U.S.C. §§ 1346(b), 2679(a)–(b)(1); Feres v. United States, 340 U.S. 135, 140 

(1950). 

However, an FTCA claim must be initiated in federal court. 28 U.S.C. § 1346(b)(1); 

Alinsky v. United States, 415 F.3d 639, 643 (7th Cir. 2005) (stating that 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) (“The FTCA provides that federal district courts ‘shall have exclusive jurisdiction of 
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civil actions on claims against the United States, for money damages . . . .’”) (citing 28 U.S.C. § 

1346(b)); Abu-Humos, 2015 WL 7710374, at *1 (holding “while common law torts are 

cognizable under the FTCA, state courts lack jurisdiction over such claims.”). When Congress 

attaches conditions to legislation waiving the sovereign immunity of the United States, “those 

conditions must be strictly observed, and exceptions thereto are not to be implied.” Lehman v. 

Nakshian, 453 U.S. 156, 161 (1981) (internal quotations and citations omitted). 

Because exclusive jurisdiction under the FTCA exists 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, and thus, 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. U.S. Dep’t of Justice, 43 F.3d 312, 316 (7th 

Cir. 1994); Fedorova v. Wells Fargo & 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 §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 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 (“[D]ismissal is strongly indicated 

when the issue is raised before any substantive matters have been addressed.”). Accordingly, the 

Court dismisses the action without prejudice. 

As this dismissal is without prejudice to the Plaintiff filing another complaint in a court 

with proper original jurisdiction, the Plaintiff is cautioned that any subsequent complaint should 

state a valid cause of action, 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. 
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See Foster v. DeLuca, 545 F.3d 582, 584 (7th Cir. 2008) (“District courts routinely do not 

terminate a case at the same time that they grant a defendant’s motion to dismiss; rather, they 

generally dismiss the plaintiff’s complaint without prejudice and give the plaintiff at least one 

opportunity to amend her complaint.”); Barry Aviation, Inc. v. Land O’Lakes Mun. Airport 

Comm’n, 377 F.3d 682, 687 (7th Cir. 2004) (“The better practice is to allow at least one 

amendment regardless of how unpromising the initial pleading appears because except in 

unusual circumstances it is unlikely that the court will be able to determine conclusively on the 

face of a defective pleading whether plaintiff actually can state a claim.”) (quotation marks and 

citation omitted). 

Accordingly, if the Plaintiff chooses to pursue her claim in this Court, the Plaintiff has 

until June 19, 2017, in which to file an Amended Complaint. 

CONCLUSION 

 For the reasons stated above, the Motion to Dismiss [ECF No. 7] is GRANTED. The 

Court DIRECTS the Clerk of Court to dismiss this action without prejudice. 

 SO ORDERED on May 18, 2017. 

 s/ Theresa L. Springmann 

 CHIEF JUDGE THERESA L. SPRINGMANN 

 UNITED STATES DISTRICT COURT