United States District Court, D. Oregon, Eugene Division
OPINION AND ORDER
AIKEN UNITED STATES DISTRICT JUDGE
the Court is Defendant Social Security Administration's
unopposed Motion to Dismiss (doc. 5). Plaintiff brought this
action in Coos County Circuit Court alleging that defendant
owes him $10, 000 because of "abandonment." Notice
of Removal (doc. 1), Ex. 1 at 1. Defendant removed to federal
court and now moves to dismiss plaintiffs claim for lack of
subject matter jurisdiction under Rule 12(b)(1) and for
failure to state a claim under Rule 12(b)(6) of the Federal
Rules of Civil Procedure.
filed this lawsuit against defendant in the Small Claims
Department of Coos County Circuit Court. See Notice
of Removal, Ex. 1. He alleged that defendant owes him $10,
000 because of "abandonment" and that he made the
following efforts to collect this claim from defendant before
filing with the court: "I filed in 2012 my lawyer spent
5 years trying." Id. at 1-2.
removed plaintiffs action to the District of Oregon pursuant
to 28 U.S.C. § 1442(a)(1).
motion to dismiss brought under Rule 12(b)(1) addresses the
court's subject matter jurisdiction. Fed.R.Civ.P.
12(b)(1). The party asserting jurisdiction bears the burden
of proving that the court has subject matter jurisdiction
over his claims. Kokkonen v. Guardian Life Ins. Co. of
Am., 511 U.S. 375, 377 (1994). Where, as here, a
defendant asserts a facial challenge to jurisdiction, the
factual allegations in the complaint are taken as true, and
all reasonable inferences are drawn in plaintiffs favor.
Pride v. Correa, 719 F.3d 1130, 1133 (9th Cir.
2013). "The defense of lack of subject matter
jurisdiction cannot be waived, and the court is under a
continuing duty to dismiss an action whenever it appears that
the court lacks jurisdiction." Augustine v. United
States, 704 F.2d 1074, 1077 (9th Cir. 1983).
motion to dismiss under Rule 12(b)(6) assesses the
sufficiency of the allegations in the Complaint. The Court
must dismiss a complaint if it fails so state a claim upon
which relief can be granted. Fed.R.Civ.P. 12(b)(6). To
survive a motion to dismiss under Rule 12(b)(6), the
complaint must include a short plain statement of the claim
that "contains sufficient factual matter, accepted as
true, to 'state a claim for relief that is plausible on
its face."' Aahcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Bell Ail Corp. v. Twombly,
550 U.S. 544, 570 (2007)).
Ninth Circuit has instructed, however, courts must
"continue to construe pro se filings liberally."
Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010).
A pro se complaint "must be held to less stringent
standards than formal pleadings drafted by lawyers."
Id. (quotations omitted).
argues that this Court lacks subject matter jurisdiction over
plaintiffs claim under the doctrine of derivative
jurisdiction. When an action is removed from state court
under § 1442(a)(1), the federal court's jurisdiction
is derivative of the state court's jurisdiction. Cox
v. U.S. Dep't of Agric, 800 F.3d 1031, 1032 (9th
Cir. 2015); Elko Cty. Grand Jury v. Siminoe, 109
F.3d 554, 555 (9th Cir. 1997). If the state court lacked
subject matter jurisdiction, then the federal court lacks
jurisdiction, regardless of whether it would have had
jurisdiction had the action originally been filed in federal
court. Minnesota v. U.S., 305 U.S. 382, 389 (1939).
Court concludes that Coos County Circuit Court lacked
jurisdiction over the action. First, the complaint fails to
allege an express waiver of defendant's sovereign
immunity as an agency of the United States. See Cox,
800 F.3d at 1032 (holding that the district court should have
dismissed the case under the doctrine of derivative
jurisdiction because there was no evidence that USDA waived
its sovereign immunity to suit in Nevada state court).
Second, even if, as defendant points out, the claim could be
construed as a tort claim under the Federal Tort Claims Act
or a breach of contract claim under the Tucker Act, both must
be brought in federal court in the first instance. See
U.S. v. Park Place Assoc, Ltd., 563 F.3d 907, 927 (9th
Cir. 2009) (noting that both acts provide waivers of
sovereign immunity but provide that federal courts have
exclusive jurisdiction over the claims).
the Court lacks subject matter jurisdiction over plaintiffs
claim and this case must be dismissed, and the Court will not
address defendant's Rule 12(b)(6) motion. See
Cox, 800 F.3d at 1032 (holding that when a district
court lacks jurisdiction under the derivative jurisdiction
doctrine, the court is "bound to dismiss the [complaint]
rather than remand to state court"). Because ...