NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

 :

TRICO DEVELOPMENT ASSOCIATES, : CIVIL ACTION NO. 11-2861 (MLC)

LIMITED PARTNERSHIP, :

 :

Plaintiff, : MEMORANDUM OPINION

 :

v. :

 :

O.C.E.A.N., INC., :

 :

Defendant. :

 :

COOPER, District Judge

This matter is before the Court on the Motion to Dismiss of

Third-Party Defendant, the United States of America (“the United

States”), which contends, pursuant to Federal Rule of Civil

Procedure (“Rule”) 12(b)(1), that this Court lacks subject matter

jurisdiction over the Amended Third-Party Complaint of Defendant,

O.C.E.A.N., Inc. (“Ocean”). (Dkt. entry no. 11, Mot. Dismiss.)1

Ocean opposes the motion. (Dkt. entry no. 13, Def. Opp.) The

Court, pursuant to Local Civil Rule 78.1(b), decides the motion

on the papers and, for the reasons set forth below, will grant

the motion, dismiss the Amended Third-Party Complaint, and remand

the remainder of the action to state court.

 The Court previously issued a Memorandum Opinion upon the 1

Motion to Dismiss the Third-Party Complaint. See Trico Dev.

Assocs. Ltd. P’ship v. O.C.E.A.N., Inc., No. 10-2847 (MLC), 2010

WL 3614214 (D.N.J. Sept. 8, 2010) (hereafter “Trico I”). To the

extent that the Court recited portions of the background of this

action in that Memorandum Opinion, the Court will rely upon and

provide citation to that Opinion. 

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BACKGROUND

Plaintiff, Trico Development Associates, Limited Partnership

(“Trico”), commenced this action in the Superior Court of New

Jersey (“Superior Court”) alleging that Ocean breached a contract

whereby Trico agreed to sell the Emerald Terrace apartment

complex (“Emerald Terrace”) to Ocean. Trico I at *1. Emerald

Terrace was subject to a program operated by the Rural

Development Agency of the United States Department of Agriculture

(“USDA”). Id. Through the Complaint, Trico alleged

that Ocean prepared a proposed contract for purchasing

Emerald Terrace in April 2008, and that the final sales

contract was executed in August 2009. Trico allege[d]

that at the time of the execution, Ocean was aware of a

settlement agreement between Trico and the United

States that would allow the USDA to foreclose upon the

apartment complex if closing did not occur.

Trico allege[d] that in December 2009, two days

prior to closing, Ocean informed Trico that the closing

would not occur unless Trico credited Ocean with

$115,843. The Complaint against Ocean alleged five

counts including breach of contract, breach of the

implied covenant of good faith and fair dealing, unjust

enrichment, conversion, and intentional

misrepresentation.

Id. (internal citations omitted).

Ocean brought a derivative action against the United States,

alleging that the United States tortiously interfered with the

contract by advising Ocean that the USDA would not approve the

closing of title unless Trico paid Ocean $115,843 to perform

certain repairs. See id. at *1, *3 n.1, *4. The United States,

2

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pursuant to 28 U.S.C. § 1442(a)(1), removed the case to this

Court and thereafter filed a Motion to Dismiss the Third-Party

Complaint pursuant to Rule 12(b)(6), contending that Ocean’s

claims were barred by the Federal Tort Claims Act, 28 U.S.C. §

1346 (“FTCA”). Id. at *1. Upon consideration of the motion and

the parties’ briefs thereon, the Court granted the motion,

dismissed the Third-Party Complaint, and remanded the remainder

of the action to state court. Id. at *4.

Upon remand to the Superior Court, Ocean filed a Motion to

Dismiss the Complaint. (Dkt. entry no. 11, United States Br. at

1; dkt. entry no. 13, Def. Opp. at 1-2.) The Superior Court

granted the motion but permitted Trico to file an Amended

Complaint, which Trico filed on or about February 28, 2011. 

(United States Br. at 2; Def. Opp. at 2.) Through the Amended

Complaint, Trico alleges that the United States had actual or

apparent authority to act as Ocean’s agent, and that the United

States so acted by insisting that Trico pay Ocean approximately

$115,000 as a predicate to the above-mentioned sale of Emerald

Terrace. (United States Br. at 2; Def. Opp. at 2.) Trico has

thus proceeded against Ocean under a theory of agency liability. 

(United States Br. at 2; Def. Opp. at 2.) Ocean filed an Amended

Third-Party Complaint, contending that the United States, as

Ocean’s alleged agent, owed a fiduciary duty to Ocean and

breached that duty. (Dkt. entry no. 1, Notice of Removal, Ex. A

3

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(“Amend. Third Pty. Compl.”), at 13-14.) Ocean accordingly

seeks: (1) damages, costs, and fees resulting from the fiduciary

duties owed to Ocean and breached by the United States; (2)

contribution for any amounts that Ocean owes to Trico; and (3) to

make the United States an indispensible party to this action. 

(Id. at 14-16.) The United States, in response, again removed

the action to this Court, pursuant to 28 U.S.C. § 1442(a)(1). 

(Dkt. entry no. 1, Notice of Removal.) The United States also

filed the instant motion, whereby the United States, pursuant to

Rule 12(b)(1), seeks to dismiss Ocean’s Amended Third-Party

Complaint. (United States Br..) The United States claims that

the Court lacks jurisdiction for three reasons, i.e., that: (1)

as in the first proceeding before the Court, the FTCA bars

Ocean’s claims; (2) the United States Court of Federal Claims has

exclusive jurisdiction over this matter; and (3) the doctrine of

derivative jurisdiction precludes the Court’s exercise of

jurisdiction. (United States Br.) Ocean opposes the motion. 

(Def. Opp.) 

STANDARD OF REVIEW

A party may move to dismiss a claim for lack of subject

matter jurisdiction. Fed.R.Civ.P. (12)(b)(1). “Challenges to

subject matter jurisdiction under Rule 12(b)(1) may be facial or

factual. Facial attacks . . . contest the sufficiency of the

pleadings, and the trial court must accept the complaint’s

4

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allegations as true.” Common Cause of Pa. v. Pa., 558 F.3d 249,

257 (3d Cir. 2009) (citation omitted). When ruling upon a facial

attack, the Court may dismiss the complaint “only if it appears

to a certainty that the plaintiff will not be able to assert a

colorable claim of subject matter jurisdiction.” Iwanowa v. Ford

Motor Co., 67 F.Supp.2d 424, 438 (D.N.J. 1999). 

Factual attacks differ greatly from facial attacks. See

Mortenson v. First Fed. Sav. & Loan Ass’n, 549 F.2d 884, 891 (3d

Cir. 1977). 

Because at issue in a factual 12(b)(1) motion is the

trial court's jurisdiction . . . the trial court is

free to weigh the evidence and satisfy itself as to the

existence of its power to hear the case. In short, no

presumptive truthfulness attaches to plaintiff's

allegations, and the existence of disputed material

facts will not preclude the trial court from evaluating

for itself the merits of jurisdictional claims. 

Moreover, the plaintiff will have the burden of proof

that jurisdiction does in fact exist.

Id. When considering a factual attack to subject matter

jurisdiction, the Court may make factual findings, beyond the

pleadings, to determine jurisdiction. See, e.g., CNA v. United

States, 535 F.3d 132, 145 (3d Cir. 2008). A Rule 12(b)(1)

“factual evaluation may occur at any stage of the proceedings,

from the time the answer has been served until after the trial

has completed.” Mortenson, 549 F.2d at 891, 892 n.1 (explaining

that “[a] factual jurisdictional proceeding cannot occur until

plaintiff’s allegations have been controverted”). 

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Because the United States has not filed an answer, the Court

has determined that the United States has not controverted

Ocean’s allegations and, therefore, considers the motion a facial

attack on subject matter jurisdiction. While resolving the

motion, the Court will accordingly only analyze the allegations

contained in the Amended Third-Party Complaint. Common Cause of

Pa., 558 F.3d at 257; see also Anthony v. Small Tube Mfg. Corp.,

No. 06-CV-4419, 2007 WL 2850609 at *5, *10 (E.D. Pa. Sept. 28,

2007).

DISCUSSION

The United States argues, inter alia, that the Court lacks

subject matter jurisdiction over the Amended Third-Party

Complaint under the doctrine of derivative jurisdiction. (United

States Br. at 14-15.) Pursuant to that doctrine, the United 2

States argues that the Court lacks jurisdiction because the

Superior Court lacked jurisdiction, pursuant to the FTCA. (Id.) 

Ocean, in response, argues that it properly raised its causes of

action under the FTCA and that, as a result, the Superior Court

properly had and the Court properly has jurisdiction over the

Amended Third-Party Complaint. (Def. Opp. at 2-4, 6.) 

 Because the Court has determined that the doctrine of 2

derivative jurisdiction controls the disposition of the motion,

the Court does not discuss the other arguments raised by the

United States.

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A. The Federal Tort Claims Act

“[T]he United States, as sovereign, is immune from suit save

as it consents to be sued . . . and the terms of its consent to

be sued in any court define that court’s jurisdiction to

entertain the suit.” United States v. Mitchell, 445 U.S. 535,

538 (1980) (citation omitted). Sovereign immunity, therefore,

deprives courts of subject matter jurisdiction over actions

against the United States unless a statute expressly waives such

immunity. United States v. Bein, 214 F.3d 408, 412 (3d Cir.

2000) (“federal courts do not have jurisdiction over suits

against the United States unless Congress, via a statute,

expressly and unequivocally waives the United States’ immunity to

suit”); Perez v. United States, No. 06-1508, 2007 WL 1489816, at

*1 (D.N.J. May 21, 2007) (“Absent a specific waiver of sovereign

immunity[,] the courts lack subject matter jurisdiction over

claims against the federal government.”). 

The FTCA provides one such waiver to sovereign immunity. It

contemplates that, in limited circumstances, a party may bring a

claim against the United States in one of the federal district

courts. See 28 U.S.C. § 1346(b)(1). Section 1346 of the FTCA

states:

the district courts . . . 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 . . .

caused by the negligent or wrongful act or omission of

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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) (emphasis added). The FTCA does not,

however, provide a waiver of sovereign immunity for claims

brought against the United States in state courts. For that

reason, state courts lack jurisdiction over third-party claims

raised against the United States under the FTCA. See Turturro v.

Agusta Aerospace Corp., No. 10-2894, 2010 WL 3239199, at *2 (E.D.

Pa. Aug. 13, 2010); Scoratow v. Smith, No. 08-1576, 2009 WL

890575, at *2 (W.D. Pa. Mar. 27, 2009). 

The Court, accordingly, determines that the Superior Court

lacked subject matter jurisdiction over Ocean’s Amended ThirdParty Complaint. Turturro, 2010 WL 3239199, at *2; Scoratow,

2009 WL 890575, at *2. 

B. The Doctrine of Derivative Jurisdiction

The doctrine of derivative jurisdiction stands for the

proposition that “[t]he jurisdiction of the federal court on

removal is, in a limited sense, a derivative jurisdiction. If

the state court lacks jurisdiction of the subject-matter or of

the parties, the federal court acquires none, although it might

in a like suit originally brought there have had jurisdiction.” 

Lambert Run Coal Co. v. Balt. & Ohio R.R. Co., 258 U.S. 377, 382

(1922); see also Bradshaw v. Gen. Motors Corp., 805 F.2d 110, 112

8

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(3d Cir. 1986) (“Long-standing authority holds that a removed

case may not be adjudicated in a federal court if the state court

did not have subject matter jurisdiction over the suit when it

was initially filed there.”). Where “the state court was without

jurisdiction over either the subject-matter or the United States,

the District Court [cannot] acquire jurisdiction over them by the

removal.” Lambert Run Coal Co., 258 U.S. at 382.

Other district courts sitting in the Third Circuit have

accordingly held that the federal district courts lack

jurisdiction over FTCA claims that are originally raised in state

court and subsequently removed pursuant to 28 U.S.C. § 1442. 

Turturro, 2010 WL 3239199, at *2-3 (dismissing defendant’s FTCA

claims against United States, as raised in third-party complaint,

pursuant to doctrine of derivative jurisdiction); Scoratow, 2009

WL 890575, at *3 (same). Because this case shares a similar

procedural background–-because, as discussed above, Ocean brought

the Amended Third-Party Complaint against the United States in

Superior Court and the case was later removed pursuant to 28

U.S.C. § 1442--the Court will grant the motion and dismiss

Ocean’s Amended Third-Party Complaint.3

 The Court, in dismissing the Amended Third-Party 3

Complaint, will not distinguish between Ocean’s direct claims

against the United States, its claims for contribution, or its

assertion that the United States is an indispensible party to the

underlying action. Any damages tied to those claims were

necessarily “caused by the . . . wrongful act or omission of [the

United States] . . . under circumstances where the United States,

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CONCLUSION

The Court, for the reasons stated above, will grant the

motion to dismiss, dismiss the Amended Third-Party Complaint, and

remand the remainder of the action to state court.

 s/ Mary L. Cooper 

MARY L. COOPER

United States District Judge

Dated: September 29, 2011

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). The Superior Court thus

lacked subject matter jurisdiction over all of Ocean’s thirdparty claims. 

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