Fiermonte v. Airport Design Consultants, Inc.

UNITED STATES DISTRICT COURT CLE RK

1/24/2025 10:19 am

EASTERN DISTRICT OF NEW YORK

------------------------------------------------------------------X U.S. DISTRICT COURT

GINO FIERMONTE, EASTERN DISTRICT OF NEW YORK

LON G ISLAN D OFFICE

MEMORANDUM

Plaintiff, AND ORDER

CV 24-2749 (GRB)(SIL)

-against-

AIRPORT DESIGN CONSULTANTS, INC.,

BURNS ENGINEERING, INC., SAVIK &

MURRAY, CONSULTING ENGINEERS, PLLC,

SAVIK, MURRAY & AURORA CONSTRUCTION

MANAGEMENT CO., LLC, SAVIK AND

MURRAY, LLP, LONG ISLAND POWER

AUTHORITY, TOWN OF ISLIP, JOHNSON,

KUKATA & LUCHESSI, P.C. and VASHTI

DEONARIAN,

Defendant.

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GARY R. BROWN, United States District Judge:

In this action involving personal injury suffered by plaintiff Gino Fiermonte, the Court

previously dismissed claims by plaintiff as against Vashti Deonarian, an employee of the Federal

Aviation Administration (“FAA”) acting within the scope of her employment, based on

plaintiff’s failure to timely file a complaint after the exhaustion of administrative remedies under

the Federal Tort Claims Act. Before the Court is a motion to dismiss remaining cross-claims for

contribution and indemnification against the United States brought by co-defendants herein

based upon a purported absence of subject matter jurisdiction. The seemingly incidental citation

of 28 U.S.C.§ 1441(a) in the Government’s notice of removal creates an issue requiring

examination in an otherwise straightforward matter.

Factual Background

On November 10, 2022, plaintiff commenced this action in Suffolk County Supreme

Court. Docket Entry “DE” 56 at 5. In an amended complaint, filed on February 12, 2024,

plaintiff alleges that, as a Town of Islip employee at Long Island MacArthur Airport, he

sustained an electrocution-related injury while repairing a lighted sign on September 8, 2021.

See DE 1-1. Tragically, a coworker working with Fiermonte was killed during this incident.

While the amended complaint charges negligence against individuals and entities that designed,

owned and/or operated the related electrical grid and systems, most notably for these purposes, it

alleges that Vashti Deonarian, an air traffic controller employed by the FAA, acting within the

scope of her employment, failed to fully de-energize the lights being repaired by plaintiff. Id. ¶¶

98-105, 605-33. On April 12, 2024, the United States removed the state court action to this

Court. See DE 1.

Following removal, the defendants filed answers to the amended complaint, asserting

cross-claims for contribution and indemnification against all codefendants, including Deonarain.

The United States commenced motion practice seeking dismissal of Fiermonte’s complaint based

on the doctrine of derivative jurisdiction. DE 16. Specifically, the United States argued that

plaintiff failed to timely file a complaint after exhaustion of his administrative remedies under

the Federal Tort Claims Act. Id. at 1. Plaintiff had filed an administrative tort claim with the

FAA on April 3, 2023, which was rejected by a mailing dated September 28, 2023. Id. This

rejection commenced a six-month period under 28 U.S.C. § 2671; as plaintiff failed to file the

amended complaint until after the expiration of that period, the Court granted the motion to

dismiss the claims against Deonarain for lack of subject matter jurisdiction based on the late

filing, as well as on the doctrine of derivative jurisdiction. DE 59-1 at 22-24.

Following that dismissal of plaintiff’s action, the remaining parties briefed the question

of whether the cross-claims by defendants against the United States are subject to dismissal

under the doctrine of derivative jurisdiction. For the reasons set forth below, the Court finds that

the cross-claims are subject to dismissal without prejudice.

Discussion

Standard of Review

The oft-repeated and well-understood standard of review for a motion to dismiss

under Rule 12(b)(6) has changed little from the first decade of this century, when the

Supreme Court issued its decision in Ashcroft v. Iqbal, 556 U.S. 662 (2009) and Bell

Atlantic Corp. v. Twombley, 550 U.S. 544 (2007).1 In short, assuming the pending

allegations to be true and drawing inferences in favor of the non-movant, the factual

matter asserted must contain cross-claims that are facially plausible.

Derivative Jurisdiction

Traditionally, upon removal, a case brought against the United States or one of its

officers was subject to dismissal based on the doctrine of derivative jurisdiction. Describing this

principle as “the anomalous doctrine of derivative jurisdiction,” the Second Circuit explained:

Since a district court’s jurisdiction is derivative in a removal context, a district

court must dismiss a complaint if the state court from which the case was

removed lacked jurisdiction. This result obtains even if the reason the state court

lacked jurisdiction is that the complaint lies within the exclusive jurisdiction of

the federal courts.

Nordlicht v. New York Tel. Co., 799 F.2d 859, 863 (2d Cir. 1986) (abrogated on other grounds).

Assuming it applies, the doctrine requires dismissal based on the absence of state court

1 For further detail, the undersigned recommends a recent thorough and nuanced reiteration of this standard by my

learned colleague Judge Scarcella, whose discussion is incorporated by reference herein. See In re Molina, 657 B.R.

172, 181 (Bankr. E.D.N.Y. 2023)

jurisdiction over the original claims.

The doctrine of derivative jurisdiction has been criticized by some courts and

commentators and curtailed by Congress. As the Circuit observed:

Congress has recently abolished the doctrine of derivative jurisdiction for claims

in civil actions filed in state courts after June 19, 1986. See Judicial

Improvements Act of 1985, Pub. L. No. 99–336, § 3, 100 Stat. 633, 637 (1986)

(adding new subsection (e) to 28 U.S.C. § 1441).

Id. That amendment, designated as 28 U.S.C. 1441(e), originally provided:

The court to which such civil action is removed is not precluded from hearing and

determining any claim in such civil action because the State court from which

such civil action is removed did not have jurisdiction over that claim.

Judicial Improvements Act of 1985, Pub.L. 99–336 § 3, 100 Stat. 633. As that subsection is

found in 28 U.S.C. § 1441, but not in § 1442, which covers actions against federal officers and

agencies, the Government argues that derivative jurisdiction requires dismissal.

Some early decisions, most notably the Eighth Circuit’s opinion in State of N.D. v.

Fredericks, 940 F.2d 333, 336 (8th Cir. 1991), suggested otherwise. In that case, the Eighth

Circuit, characterizing the derivative jurisdiction doctrine as “a judicial gloss … never based

upon anything explicit in the removal statutes” held that “the policy of Congress underlying new

§ 1441(e) supports the complete abandonment of the derivative-jurisdiction theory, even though

the words of the statute clearly do not reach this far.” Id. at 337 (applying Congress’s

amendment of § 1441 to a foreclosure proceeding against the United States removed under

§ 1444). Other courts disagreed. See, e.g., Edwards v. United States Dept. of Justice, 43 F.3d

312, 316 (7th Cir. 1994) (holding that the derivative jurisdiction doctrine continued to apply to

suits removed under § 1442). Then, “any ambiguity about the endurance of the derivative

jurisdiction doctrine as applied to removals under § 1442 was eliminated when Congress

amended § 1441 in 2002 to add the words ‘removed under this section.’” Lopez v. Sentrillon

Corp., 749 F.3d 347, 350 (5th Cir. 2014), as revised (Apr. 28, 2014).

The enactment of 28 U.S.C. § 1441(f) expressly limits the abolition of the derivative

jurisdiction doctrine to actions removed under § 1441. Thus, the doctrine remains viable as to

actions, such as the instant matter, brought against federal officers. Indeed, a number of

factually similar cross-claims removed under § 1442 have been dismissed on these grounds. See,

e.g., Simmons v. United States, No. 20-CV-648(RPK)(RML), 2020 WL 3430514, at *1

(E.D.N.Y. June 22, 2020). As Judge Kovner observed:

Congress altered the ordinary derivative-jurisdictional rule for cases removed to

federal court under one statutory section—28 U.S.C. § 1441. See 28 U.S.C. §

1441(f) (“The court to which a civil action is removed under this section is not

precluded from hearing and determining any claim in such civil action because

the State court from which such civil action is removed did not have jurisdiction

over that claim.”) (emphasis added). But this case was removed under a different

provision—28 U.S.C. § 1442—which contains no similar language. Accordingly,

as courts in this circuit have consistently recognized, the ordinary rule of

derivative jurisdiction remains applicable to removals under Section

1442. See Mooney v. G.A.C. Realty Corp., No. 14-CV-6207-FPG, 2015 WL

1010486, at *3 (W.D.N.Y. Mar. 5, 2015) (collecting cases).

Id. at 2 n.1.

In this case, though, there is a potential fly in the ointment: in its Notice of Removal, the

United States nominally lists both sections 1441(a) and 1442(a)(1) as bases for removal.

DE 1 ¶ 8. Defendants argue that this invocation of § 1441(a) by the United States Attorney gives

effect to the provisions of §1441(f) thereby defeating the defense of derivative jurisdiction in this

matter. While offering some surface appeal, the argument ultimately fails. First, the Notice of

Removal provides a single citation to 1441(a), without quotation or characterization of the

statute’s language. Compare Strychasz v. Maron Const. Co., 01-CV-2063(PCD), 2002 WL

32500874, at *2 (D. Conn. July 16, 2002) (“In its notice of removal, the Government refers to

and quotes 28 U.S.C. § 1441(a).”) (emphasis added). For example, the Notice of Removal does

not use the phrase “original jurisdiction” as found in § 1441. Further, all of the substantive

assertions in the Notice of Removal support removal under § 1442(a)(1), rendering the intention

of the notice plain. See DE 1 ¶¶ 3-6 (describing defendant as an FAA employee, acting in the

scope of her employment). The Court finds the passing incidental reference to §1441(a) in a

string citation to be without force and effect in these circumstances.

Defendants’ remaining objections to the applicability of doctrine of derivative

jurisdiction are without merit. Thus, the motion of the United States is granted, and the cross-

claims are dismissed.2

Conclusion

Based on the foregoing, plaintiff’s claims against the United States and the cross-claims

against the United States are dismissed. The balance of the case is remanded to the state court.

The Clerk of the Court is directed to return the file to the state court and close the matter.

SO ORDERED.

Dated: Central Islip, New York

January 24, 2025

/s/ Gary R. Brown _________

HONORABLE GARY R. BROWN

UNITED STATES DISTRICT JUDGE

2 Of course, this dismissal is without prejudice to defendants’ rights to file a separate action for contribution and/or

indemnity. The question of whether such claims would be ripe prior to a judgment in the state court action is not

before the Court. See Pall v. KPMG, LLP, No. 03-CV-842(AWT), 2006 WL 2800064, at *3 (D. Conn. Sept. 29,

2006) (“because the plaintiff is attempting to bring a contribution claim which is contingent upon a finding of

liability in the related actions, the injury (and availability of a contribution claim) depends upon the results in the

related actions, making the contribution claim not ripe”).