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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

NORTHERN DIVISION

ANGLEA P. MARTIN, :

 :

Plaintiff, :

 :

vs. :

 : CIVIL ACTION 15-0127-KD-M

MARY M. CHAMPION and BRISTOL :

WEST INSURANCE COMPANY, :

 :

Defendants. :

REPORT AND RECOMMENDATION

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 

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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, 

Alabama1 when Champion, the driver and owner of the vehicle, 

collided with a tree (Complaint, ¶¶ 1-2, 8-10).2 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)3, and asserted that Defendant Champion was a 

 

1 Wilcox County falls within the jurisdiction of this Court. 28 

U.S.C. § 81(c)(1). 2

The Complaint can be found at pages seven through thirteen in

document one.

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“A civil action or criminal prosecution that is commenced in a 

State court and that is against or directed to any of the following 

may be removed by them to the district court of the United States for 

the district and division embracing the place where it is pending: 

The United States or any agency thereof or any officer (or any person 

acting under that officer) of the United States or of any agency 

thereof, in an official or individual capacity, for or relating to any 

act under color of such office or on account of any right, title or 

authority claimed under any Act of Congress for the apprehension or 

punishment of criminals or the collection of the revenue.”

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Postal Service employee acting with the scope of her employment 

at the time of the accident (Doc. 1).4

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 

 

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The Court notes Defendant Bristol played no part in removing 

this action (see Doc. 1).

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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 

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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 

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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 compensation statute or under a 

Federal tort liability statute. However, 

this subsection does not apply to a master 

or a member of a crew of a vessel.

5 U.S.C. § 8116(c). See also Noble v. United States, 216 F.3d 

1229, 1235 (11th Cir. 2000) (“the exclusive liability provision 

of FECA would bar an FTCA claim”).

Finally, Defendant USA argues that Martin has not exhausted 

administrative remedies under the FTCA (Doc. 3, pp. 4-6). FTCA 

law requires that a claimant cannot seek money damages for 

personal injury caused by another employee while acting within 

the scope of their employment without first presenting the claim 

to—and the claim being denied by—the appropriate Federal agency. 

28 U.S.C. § 2675(a). Defendant has submitted a declaration from 

the Supervisor of the Tort Claims Examiner/Adjudicator with the 

United States Postal Service National Tort Center stating that 

Martin has not filed such a claim (Doc. 3, Exhibit D).

The Court notes that Plaintiff, without conceding any 

particular argument, has stated that she does not oppose 

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Defendant USA’s Motion to Dismiss the action against Champion 

(Doc. 16, p. 2).

Therefore, finding all of Defendant’s arguments persuasive 

while acknowledging Martin’s general concession, the undersigned 

recommends that Defendant USA’s Motion to Dismiss be granted 

(Doc. 3). In accord with that recommendation, it is further 

recommended that Defendant Champion, and substituted Defendant 

USA, be dismissed from this action.

The Court will now take up Plaintiff’s renewed Motion to 

Remand (Doc. 17) in which she argues that dismissing Defendants 

Champion and USA leaves Bristol as the only Defendant. Martin 

points out that her claim against Bristol for breach of contract 

provides no independent basis for federal jurisdiction and was 

only in this Court because it was supplemental to the claims 

against Champion (Doc. 17). Plaintiff points out that statutory 

law affords district courts the option of declining supplemental 

jurisdiction over a claim if “the district court has dismissed 

all claims over which it has original jurisdiction.” 28 U.S.C. 

§ 1367(c)(3). 

It has been recommended that the claims against Defendants 

Champion and USA be dismissed and that those Defendants be 

dismissed from this action. The undersigned has failed to 

independently conceive of any reason why this Court should 

continue to preside over what is now only a state law claim. 

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Defendant Bristol’s silence reaffirms that conclusion. 

Therefore, it is recommended that Martin’s Motion to Remand 

be granted. Accordingly, it is recommended that this action be 

remanded to the Wilcox County Circuit Court for all further 

proceedings.5

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 USA be 

dismissed. No recommendation is made as to Defendant Bristol’s 

Motion to Dismiss (Doc. 13). 

NOTICE OF RIGHT TO FILE OBJECTIONS 

A copy of this report and recommendation shall be served on 

all parties in the manner provided by law. Any party who objects 

to this recommendation or anything in it must, within fourteen 

(14) days of the date of service of this document, file specific 

written objections with the Clerk of this Court. See 28 U.S.C. 

 

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Affirmance of this recommendation means that the Court would not 

have jurisdiction to rule on Defendant Bristol’s Motion to Dismiss 

(Doc. 13). The undersigned makes no recommendation as to that motion.

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§ 636(b)(1); FED.R.CIV.P. 72(b); S.D. ALA. L.R. 72.4. The parties 

should note that under Eleventh Circuit Rule 3-1, “[a] party 

failing to object to a magistrate judge's findings or 

recommendations contained in a report and recommendation in 

accordance with the provisions of 28 U.S.C. § 636(b)(1) waives 

the right to challenge on appeal the district court's order 

based on unobjected-to factual and legal conclusions if the 

party was informed of the time period for objecting and the 

consequences on appeal for failing to object. In the absence of 

a proper objection, however, the court may review on appeal for 

plain error if necessary in the interests of justice.” 11th 

Cir. R. 3-1. In order to be specific, an objection must 

identify the specific finding or recommendation to which 

objection is made, state the basis for the objection, and 

specify the place in the Magistrate Judge’s report and 

recommendation where the disputed determination is found. An 

objection that merely incorporates by reference or refers to the 

briefing before the Magistrate Judge is not specific. 

DONE this 19th day of June, 2015.

s/BERT W. MILLING, JR. 

UNITED STATES MAGISTRATE JUDGE

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