# Bilal v. Russell

> District Court, E.D. New York · March 18, 2025

URL: https://www.frixlaw.com/law-library/cases/10826258

## Case

- **Court:** District Court, E.D. New York
- **Decided:** March 18, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10826258

## How later opinions describe it (automated extraction)

- holding that “the district court correctly found that it could not assert diversity jurisdiction based upon [defendant’s] cross-claims alone”

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------------------------------
MUHAMMAD BILAL and MALHOTRA ARYAN,

Plaintiffs, MEMORANDUM & ORDER
24-CV-3335 (MKB)
v.

MARK ANTHONY RUSSELL, RYDER TRUCK
RENTAL, INC., ABHISHEK RANDHAWA, and
SUKHDEV MASIH,

Defendants.
---------------------------------------------------------------
MARGO K. BRODIE, United States District Judge:
Plaintiffs Muhammad Bilal and Malhotra Aryan commenced the above-captioned action
against Defendants Mark Anthony Russell, Ryder Truck Rental, Inc. (“Ryder”), Abishek
Randhawa, and Sukhdev Masih in the Supreme Court of the State of New York, Queens County,
on September 5, 2023, asserting negligence, carelessness, wanton recklessness, and neglect
under New York law arising out of a motor vehicle accident. (Compl. ¶ 20, annexed as Ex. A to
Notice of Removal, Docket Entry No. 1.) On March 25, 2024, Randhawa and Masih filed an
Answer and asserted crossclaims against Russell and Ryder for “contribution and/or
indemnification in whole or in part” of any judgment. (Answer 2, annexed as Ex. B to Notice of
Removal, Docket Entry No. 1.) According to a certification by the Attorney General of the
United States, Russell, a federal employee, was acting in the scope of his employment at the time
of the motor vehicle accident, and, as a result, on May 6, 2024, the United States of America
substituted itself as Defendant to replace Russell and removed the case to the Eastern District of
New York pursuant to 28 U.S.C. §§ 1442(a)(1) and 2679(d)(2).1 (Notice of Removal ¶¶ 4–5, 7–
8, Docket Entry No. 1; Certification of Scope of Emp. & Not. of Substitution of U.S. as Party
Def. for Mark Anthony Russell, annexed as Ex. C to Notice of Removal, Docket Entry No. 1.)
On August 26, 2024, the United States moved to dismiss: (1) Bilal’s claims and

Randhawa and Masih’s crossclaims for lack of subject-matter jurisdiction pursuant to Rule
12(b)(1) of the Federal Rules of Civil Procedure on the basis of the derivative jurisdiction
doctrine; (2) Bilal’s claims for failure to state a claim pursuant to Rule 12(b)(6) of the Federal
Rules of Civil Procedure on grounds that the claims are time-barred; and (3) Randhawa’s
crossclaims pursuant to Rule 12 of the Federal Rules of Civil Procedure on grounds that the
claim is barred by a stipulation of settlement that Randhawa and the United States entered into in
a different case.2 For the reasons explained below, the Court grants the United States’ motion
and dismisses Bilal’s claims and all crossclaims against the United States, remands the action to
state court, and dismisses Ryder’s pending motion for summary judgment for lack of subject-
matter jurisdiction.

1 Section 1442(a)(1) provides that the United States may remove a civil action
“commenced in a State court and that is against or directed to” 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” to the “district court . . . for the district and division embracing the place wherein it is
pending.” 28 U.S.C. § 1442(a)(1). Section 2679(d)(2) provides that “[u]pon certification by the
Attorney General that the defendant employee was acting within the scope of his office or
employment at the time of the incident out of which the claim arose,” any civil action
“commenced upon such claim in a State court shall be removed without bond at any time before
trial by the Attorney General to the district court . . . for the district and division embracing the
place in which the action or proceeding is pending” and “[s]uch action or proceeding shall be
deemed to be . . . brought against the United States . . . and the United States shall be substituted
as the party defendant.” 28 U.S.C. § 2679(d)(2).
2 (Def.’s Notice of Mot. to Dismiss (“Def.’s Mot.”), Docket Entry No. 10; Def.’s Mem.
in Supp. of Def.’s Mot. (“Def.’s Mem.”), Docket Entry No. 11.) None of the parties responded
to the United States’ motion.
I. Background
At all relevant times, Bilal was a resident of Nassau County, New York and Aryan was a
resident of Queens County, New York.3 (Compl. ¶¶ 1–2.) Russell was a resident of Westchester
County, New York, Ryder was a foreign business corporation that transacted business within
New York, and Randhawa was a resident of Nassau County, New York.4 (Id. ¶¶ 3–8.)

a. Factual allegations
On December 5, 2020, at approximately 5:00 A.M., Randhawa lost control of the 2017
Dodge vehicle he was driving on I-678 Van Wyck Expressway at or near Jewel Avenue in
Queens County, New York and struck a guardrail. (Id. ¶¶ 14, 17.) Bilal and Aryan were
passengers in the Dodge vehicle. (Id. ¶ 15.) At the same time, Russell was driving a 2017
Freightliner box truck vehicle and collided with the Dodge vehicle. (Id. ¶ 18.) Ryder was the
registered owner and lessee of the Freightliner box truck that Russell was operating. (Id. ¶¶ 9–
13.)
“Plaintiff”5 sustained severe and serious personal injuries to “Plaintiff’s body and
physical health, and nervous system” and has endured “pain and suffering continuing to date”

“solely by reason of the negligence, carelessness, wanton recklessness, and neglect of the
Defendant(s), and without any negligence on the part of the Plaintiff contributing thereto.” (Id.
¶¶ 20, 23.)

3 The Court assumes the truth of the factual allegations in the Complaint for the purposes
of deciding the United States’ motion.
4 Plaintiffs did not allege the citizenship of Masih in their Complaint.
5 Although there are two Plaintiffs, Bilal and Aryan, the Complaint only includes
allegations of injury for a singular plaintiff and does not specify which Plaintiff the injuries
pertain to.
b. Procedural history
On June 12, 2024, after removal of the case to this Court, Aryan and the United States
filed a stipulation to dismiss with prejudice Aryan’s claims against the United States.
(Stipulation of Dismissal with Prejudice, Docket Entry No. 6.) On June 14, 2024, Aryan and
Ryder filed a stipulation of dismissal, which dismissed with prejudice Aryan’s claims against

Ryder. (Stipulation of Dismissal with Prejudice, Docket Entry No. 8.)
The pending claims in this action are Bilal’s claims for negligence, carelessness, wanton
recklessness, and neglect against all Defendants; Aryan’s claims for negligence, carelessness,
wanton recklessness, and neglect against Randhawa and Masih; and Randhawa and Masih’s
crossclaims against the United States and Ryder for “contribution and/or indemnification.”
(Compl. ¶ 20; Answer 2.) On August 26, 2024, the United States moved to dismiss all remaining
claims against it. (Def.’s Mem. 11.) On February 14, 2025, Ryder moved for summary
judgment on Bilal’s claims and the crossclaims against it. (Ryder’s Mot. for Summ. J., Docket
Entry No. 17; Ryder’s Mem. in Supp. of Ryder’s Mot. ¶ 11, Docket Entry No. 18.)

II. Discussion
a. Standards of review
i. Rule 12(b)(1)
A district court may dismiss an action for lack of subject-matter jurisdiction pursuant to
Rule 12(b)(1) of the Federal Rules of Civil Procedure when the court “lacks the statutory or
constitutional power to adjudicate it.” Huntress v. United States, 810 F. App’x 74, 75 (2d Cir.
2020) (quoting Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000)); Cortlandt St.
Recovery Corp. v. Hellas Telecomms., S.À.R.L., 790 F.3d 411, 416–17 (2d Cir. 2015) (quoting
Makarova, 201 F.3d at 113); Shabaj v. Holder, 718 F.3d 48, 50 (2d Cir. 2013) (per curiam)
(quoting Aurecchione v. Schoolman Transp. Sys., Inc., 426 F.3d 635, 638 (2d Cir. 2005)).
“‘[C]ourt[s] must take all facts alleged in the complaint as true and draw all reasonable
inferences in favor of [the] plaintiff,’ but ‘jurisdiction must be shown affirmatively, and that
showing is not made by drawing from the pleadings inferences favorable to the party asserting
it.’” Morrison v. Nat’l Austl. Bank Ltd., 547 F.3d 167, 170 (2d Cir. 2008) (first quoting Nat. Res.

Def. Council v. Johnson, 461 F.3d 164, 171 (2d Cir. 2006); and then quoting APWU v. Potter,
343 F.3d 619, 623 (2d Cir. 2003)), aff’d, 561 U.S. 247 (2010). Ultimately, “the party asserting
subject matter jurisdiction ‘has the burden of proving by a preponderance of the evidence that it
exists.’” Tandon v. Captain s Cove Marina of Bridgeport, Inc., 752 F.3d 239, 243 (2d Cir. 2014)
(quoting Makarova, 201 F.3d at 113); see also Suarez v. Mosaic Sales Sols. U.S. Operating Co.,
720 F. App’ x 52, 53 (2d Cir. 2018) (“[T]he party asserting subject matter jurisdiction must
demonstrate its existence by a preponderance of the evidence.” (citing Morrison, 547 F.3d at 170));
Clayton v. United States, No. 18-CV-5867, 2020 WL 1545542, at *3 (E.D.N.Y. Mar. 31, 2020)
(quoting Tandon, 752 F.3d at 243); Fed. Deposit Ins. Corp. v. Bank of N.Y. Mellon, 369 F. Supp.
3d 547, 552 (S.D.N.Y. 2019) (quoting Tandon, 752 F.3d at 243).

ii. Rule 12(b)(6)
In reviewing a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil
Procedure, a court “must construe [the Complaint] liberally, accepting all factual allegations
therein as true and drawing all reasonable inferences in the plaintiff[’s] favor.” Sacerdote v. N.Y.
Univ., 9 F.4th 95, 106–07 (2d Cir. 2021) (citing Palin v. N.Y. Times Co., 940 F.3d 804, 809 (2d
Cir. 2019)); see also Vaughn v. Phoenix House N.Y. Inc., 957 F.3d 141, 145 (2d Cir. 2020)
(quoting Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002)). A complaint must
plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007); Bacon v. Phelps, 961 F.3d 533, 540 (2d Cir. 2020) (quoting
Twombly, 550 U.S. at 570). “A claim is plausible ‘when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.’” Matson v. Bd. of Educ., 631 F.3d 57, 63 (2d Cir. 2011) (quoting Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009)); see also Roe v. St. John’s Univ., 91 F.4th 643, 651 (2d Cir. 2024)
(quoting Matson, 631 F.3d at 63); Cavello Bay Reinsurance Ltd. v. Shubin Stein, 986 F.3d 161,

165 (2d Cir. 2021) (quoting Iqbal, 556 U.S. at 678). Although all allegations contained in the
complaint are assumed to be true, this tenet is “inapplicable to legal conclusions.” Iqbal, 556 U.S.
at 678; Roe, 91 F.4th at 651 (“Although all factual allegations contained in the complaint are
assumed to be true, this rule does not extend ‘to legal conclusions. Threadbare recitals of the
elements of a cause of action, supported by mere conclusory statements, do not suffice.’”
(quoting Iqbal, 556 U.S. at 678)).
b. The Court lacks subject-matter jurisdiction over all claims against the
United States
The United States argues that Bilal’s claims must be dismissed under the derivative
jurisdiction doctrine. In support, the United States contends that the state tort claims are brought
under the Federal Tort Claims Act (“FTCA”) because the United States is the party defendant in
place of Russell, (Def.’s Mem. 1 & 1 n.1), and “[s]ince the FTCA gives federal courts exclusive
jurisdiction over tort claims against the United States, the New York State Court did not have
subject matter jurisdiction over the Complaint,” (id. at 7), and “this Court acquired no subject-
matter jurisdiction upon removal,” (id.). The United States also contends that “[t]he doctrine of
derivative jurisdiction applies equally to third-party tort claims, including those asserted here for

contribution and indemnity.” (Id.) None of the parties responded to the United States’ motion.
The derivative jurisdiction doctrine limits a federal court’s power to hear a case removed
from a state court based on the state court’s jurisdiction over the case before removal. Rosa-Harris
v. Samaritan Med. Ctr., No. 23-CV-289, 2024 WL 149763, at *3 (N.D.N.Y. Jan. 12, 2024)
(explaining that the derivative jurisdiction doctrine “governs the jurisdictional reach of federal
courts in cases that have been removed from state courts”); Kennedy v. Paul, No. 12-CV-1491,
2013 WL 5435183, at *2 (D. Conn. Sept. 30, 2013) (“Under the doctrine of derivative jurisdiction,
the federal court’s jurisdiction over a case that has been removed is derived from the jurisdiction of

the state court from which the action has been removed.”). Under the doctrine, a district court
lacks subject-matter jurisdiction on removal of an action from state court if the state court did not
have jurisdiction over the case before it was removed. Rosa-Harris, 2024 WL 149763, at *3 (“In
essence, the doctrine states that if a state court lacks jurisdiction to hear a particular case, then a
federal court hearing that same case after removal similarly lacks jurisdiction.”); Mahmud v.
United States, No. 17-CV-4774, 2018 WL 2766141, at *2 (E.D.N.Y. June 7, 2018) (“Under the
Derivative Jurisdiction Doctrine, ‘if the state court where an action was initially filed lacked
subject matter jurisdiction over the action, a federal court acquires none upon removal.’”
(quoting Moreland v. Van Buren GMC, 93 F. Supp.2d 346, 353 (E.D.N.Y. 1999))); Barnaby v.
Quintos, 410 F. Supp. 2d 142, 143 (S.D.N.Y. 2005) (“Under this doctrine, this [c]ourt lacks

jurisdiction on removal because it cannot have jurisdiction where the state court from which the
action was removed lacked jurisdiction.”); Moreland, 93 F. Supp. 2d at 353 (“The derivative
jurisdiction doctrine holds that if the state court where an action was initially commenced lacked
subject matter jurisdiction over the action, a federal court acquires none upon removal.”). This is
because “[t]he jurisdiction of the federal court on removal is, in a limited sense, a derivative
jurisdiction” and “[i]f 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. & O.R. Co., 258 U.S. 377, 382 (1922); PT United
Can Co. Ltd. v. Crown Cork & Seal Co., Inc., 138 F.3d 65, 73 (2d Cir. 1998) (quoting same);

Jensen v. Rubin, No. 21-CV-482, 2022 WL 119237, at *8 (D. Conn. Jan. 12, 2022) (same);
Rivera v. Hosp. of Saint Raphael, No. 14-CV-874, 2014 WL 6871657, at *2 (D. Conn. Dec. 3,
2014). The doctrine dictates that a district court must “dismiss a complaint if the state court from
which the case was removed lacked jurisdiction . . . . even if the reason the state court lacked
jurisdiction is that the complaint lies within the exclusive jurisdiction of the federal courts.”

Nordlicht v. N.Y. Tel. Co., 799 F.2d 859, 863 (2d Cir. 1986) (quoting Freeman v. Bee Mach. Co.,
319 U.S. 448, 452 (1943)), abrogated on other grounds by Fax Telecommunicaciones Inc. v.
AT&T, 138 F.3d 479, 486 (2d Cir. 1998); see PT United, 138 F.3d at 72–73 (“Although federal
jurisdiction in a removed action is original, not appellate, and should proceed as though
commenced in federal court, ‘[w]here a state court lacks jurisdiction . . . , the federal District
Court acquires none on a removal of the case.’” (alterations in original) (quoting Freeman, 319
U.S. at 449)); see, e.g., Jensen, 2022 WL 119237, at *8 (holding that derivative jurisdiction
barred the court’s jurisdiction on removal because “all three claims against the [f]ederal
[d]efendants ar[o]se under federal law”); Cohen v. Postal Holdings, LLC, No. 14-CV-800, 2015
WL 225051, at *2 (D. Conn. Jan. 15, 2015) (holding that the court did not have subject-matter

jurisdiction because “the [state] court lack[ed] subject-matter jurisdiction”).
Removal of cases from state court is governed by Chapter 89 of title 28 of the U.S. Code.
A defendant may remove a civil action brought in state court to a federal court of original
jurisdiction. 28 U.S.C. § 1441(a). A notice of removal must allege a proper basis for removal
under 28 U.S.C. §§ 1441–1445. Under section 1442(a)(1), a civil action may be removed to
federal court if it is:
against or directed to . . . [t]he United States or any agency thereof
or any officer (or any person acting under that office) 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.
28 U.S.C. § 1442(a)(1); Abbo-Bradley v. City of Niagara Falls, 73 F.4th 143, 146 n.1 (2d Cir.
2023) (quoting same); Cohen v. Postal Holdings, LLC, 873 F.3d 394, 397 (2d Cir. 2017) (same);
Watson v. Phillip Morris Cos., Inc., 551 U.S. 142, 145 (2007) (same).6
The derivative jurisdiction doctrine bars Bilal’s claims against the United States. The
United States has certified that Russell was acting in the scope of his employment at the time of

the alleged incident, (See Certification of Scope of Emp. & Not. of Substitution of U.S. as Party
Def. for Mark Anthony Russell 1), and therefore, the tort claims under New York law that
Plaintiffs brought against Russell may only be brought against the United States in a federal
district court. See Gonzalez v. United States, 80 F.4th 183, 193 (2d Cir. 2023) (“The FTCA’s
jurisdictional grant provides district courts with jurisdiction over tort suits against the United
States . . . .” (citation omitted)); Corley v. United States, 11 F.4th 79, 84 (2d Cir. 2021)
(explaining that “[t]he FTCA grants district courts jurisdiction over tort suits against the United
States for ‘the negligent acts of federal employees acting in the scope of their employment’”
(quoting Coyle v. United States, 954 F.3d 146, 148 (2d Cir. 2020))); see also Brownback v. King,

6 The Court acknowledges that there is some question as to whether application of the
derivative jurisdiction doctrine to removals under section 1442 is barred by section 1441(f).
Section 1441 authorizes removal of actions from state court to federal court based on diversity of
citizenship. 28 U.S.C. § 1441. Section 1441(f) bars application of the derivative jurisdiction
doctrine to removals effectuated under section 1441. 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.”); Fiermonte v. Airport Design Consultants, Inc., No. 24-CV-
2749, 2025 WL 296533, at *3 (E.D.N.Y. Jan. 24, 2025) (quoting same). Although the Second
Circuit has not expressly addressed the issue, district courts have “routinely” concluded that
section 1441(f)’s bar on the derivative jurisdiction doctrine does not apply to removals under
section 1442. Fiermonte, 2025 WL 296533, at *3 (“The enactment of 28 U.S.C. § 1441(f)
expressly limits the abolition of the derivative jurisdiction doctrine to actions removed under §
1441.”); Simmons v. United States, No. 20-CV-648, 2020 WL 3430514, at *2 n.1 (E.D.N.Y. June
22, 2020) (“Congress altered the ordinary derivative-jurisdictional rule for cases removed to
federal court under one statutory section — 28 U.S.C. § 1441.”); Donatello v. County of
Niagara, No. 15-CV-39V, 2016 WL 3090552, at *5 (W.D.N.Y. June 2, 2016) (“In diversity
cases, Congress has eliminated the judicial doctrine of ‘derivative jurisdiction.’” (citing 28
U.S.C. § 1441(f))).
592 U.S. 209, 212 (2021) (“Plaintiffs were (and are) required to bring claims under the FTCA in
federal district court.”); Bettis v. United States, 346 F.R.D. 34, 38–39 (S.D.N.Y. 2024) (quoting
28 U.S.C. § 1346(b)(1)). As a result, the New York Supreme Court never had jurisdiction over
the claims by Bilal nor Aryan against the United States and this Court “acquire[d] none on
removal of the case.”7 PT United, 138 F.3d at 72–73. The United States removed the case under

section 1442, and under the derivative jurisdiction doctrine the Court dismisses the Complaint
against the United States without prejudice for lack of subject-matter jurisdiction. See Mahmud,
2018 WL 2766141, at *3 (dismissing case removed pursuant to section 1442 under the derivative
jurisdiction doctrine because “the state court in which [p]laintiff filed his claim lacked subject
matter jurisdiction”).
The derivative jurisdiction doctrine similarly bars Randhawa and Masih’s crossclaims
against the United States because the United States, rather than Russell, is the party in interest
and the state court therefore lacked jurisdiction over the crossclaims. See Fiermonte, 2025 WL
296533, at *1, *4 (dismissing crossclaims for contribution and indemnification asserted against

7 The Court notes that Plaintiffs’ tort claims against the United States must be brought
under the FTCA and, as such, are subject to FTCA filing requirements and exhaustion of
administrative remedies. See Leytman v. United States, 832 F. App’x 720, 722 (2d Cir. 2020)
(“[A] plaintiff bringing an action under the FTCA must first exhaust administrative remedies by
filing a claim for monetary damages with the appropriate federal entity within two years of the
injury’s accrual.” (citations omitted)); see also Carroll v. U.S. ex. rel Dep’t of Veterans Affs. at
Stratton Veterans Hosp., No. 23-1165, 2024 WL 5103419, at *1 (2d Cir. Dec. 13, 2024) (affirming
denial of FTCA claim as time-barred under Rule 12(b)(6) for failure to file suit within six months
after the mailing of the agency’s denial of the claim); Searles v. Robert, No. 21-2836, 2023 WL
7271832, at *1 (2d Cir. Nov. 3, 2023) (affirming the district court’s finding that it lacked subject-
matter jurisdiction over the plaintiff’s claim because the plaintiff failed to exhaust his
administrative remedies under the FTCA by filing a complaint with the appropriate federal
agency); Thompson v. United States, 795 F. App’x 15, 20 (2d Cir. 2019) (affirming dismissal of
FTCA claims against the United States Postal Service for lack of subject-matter jurisdiction
because plaintiff “failed to allege proper exhaustion”). Plaintiffs do not allege in the Complaint
that they complied with the filing requirements of the FTCA or administrative exhaustion
requirements. Therefore, the Court also lacks subject-matter jurisdiction on this basis.
the United States in FTCA action after removal under the derivative jurisdiction doctrine); Rosa-
Harris, 2024 WL 149763, at *1, *4, *6 (dismissing FTCA crossclaims against the United States
“for common law indemnification and/or contribution, or alternatively, apportionment of
liability, and judgment” for lack of subject matter jurisdiction because “the derivative

jurisdiction doctrine would prohibit th[e] [c]ourt from hearing th[e] case”). Moreover, the
crossclaims cannot independently serve as the basis for subject-matter jurisdiction. See M.G. v.
Rye City Sch. Dist., No. 23-CV-9742, 2025 WL 343617, at *2 (S.D.N.Y. Jan. 30, 2025) (“A
federal court has subject matter jurisdiction over a cause of action only when it has authority to
adjudicate the cause pressed in the complaint.” (quoting Arar v. Ashcroft, 532 F.3d 157, 168 (2d
Cir. 2008), vacated and superseded on other grounds on reh’g en banc, 585 F.3d 559 (2d Cir.
2009))); Simmons v. United States, No. 20-CV-648, 2020 WL 3430514, at *3 (E.D.N.Y. June 22,
2020) (explaining that the codefendant “did not create federal jurisdiction by asserting a cross-
claim against the United States in his answer” because “[f]ederal jurisdiction must be predicated
on the allegations in the complaint”); see also Correspondent Servs. Corp. v. First Equities Corp.

of Fla., 338 F.3d 119, 125 (2d Cir. 2003) (holding that “the district court correctly found that it
could not assert diversity jurisdiction based upon [defendant’s] cross-claims alone”). The Court
therefore dismisses Bilal’s claims and Randhawa and Masih’s crossclaims against the United
States without prejudice.8 See Faculty v. N.Y. Univ., 11 F.4th 68, 78 (2d Cir. 2021) (explaining
that a dismissal for lack of jurisdiction “must be without prejudice rather than with prejudice”);
Katz v. Donna Karan Co., L.L.C., 872 F.3d 114, 116 (2d Cir. 2017) (explaining that when a case

8 The Court declines to reach the United States’ arguments that (1) because Bilal failed
to timely file his suit in federal court after receiving a denial of an administrative claim that was
not alleged in the Complaint, Bilal’s claims against the United States should be dismissed as
time-barred pursuant to Rule 12(b)(6); and (2) Randhawa’s claims are barred by the settlement
he entered with the United States in a different case.
is dismissed for lack of subject-matter jurisdiction, the dismissal must be without prejudice).
Although the United States also invoked section 2679 as a basis for removal, (see Notice
of Removal ¶ 7), the derivative jurisdiction doctrine nevertheless deprives the Court of subject-
matter jurisdiction over the claims against the United States. The Second Circuit has not

addressed whether the doctrine of derivative jurisdiction applies to removals under section 2679.
Some courts have found that because under section 2679(d)(2) a “claim in a State court shall be
removed” “upon certification” that “the defendant employee was acting within the scope of his
office or employment at the time of the incident out of which the claim arose,” 28 U.S.
§ 2679(d)(2), the doctrine is inapplicable as “federal jurisdiction lies only after the Attorney
General certifies that the federal [employee] was acting within the scope of his employment[]
[and] [t]he possibility that such certification might issue does not automatically divest a state
court of subject matter jurisdiction.” Thompson v. Wheeler, 898 F.2d 406, 409 n.2 (3d Cir.
1990); see Da Silva v. Temp. Univ. Hosp., Inc., 506 F. Supp. 3d 318, 325 (E.D. Pa. 2020)
(applying Thompson and concluding that the “FTCA did not deprive the state court of subject

matter jurisdiction over the claims against [federal defendant] because federal jurisdiction did not
attach while the case was in state court”); see also Zanghi v. Sisters of Charity Hosp. of Buffalo,
N.Y., No. 12-CV-765S, 2013 WL 706241, at *3 (W.D.N.Y. Feb. 26, 2013) (relying on Thompson
to find the derivative jurisdiction doctrine inapplicable to a case removed under federal statute
similar to section 2679 because “the United States did not move for substitution until it removed
the case”). The Court is unpersuaded by this reasoning because regardless of whether the United
States was technically substituted as a party immediately before, on, or after removal, it remains
an uncontested fact for jurisdictional purposes that Russell was acting in the scope of his federal
employment at the time of the alleged motor vehicle accident, rendering the United States the

real party in interest as to Plaintiffs’ tort claims and vesting district courts with exclusive
jurisdiction to hear the claims. Brownback, 592 U.S. at 212 (“Plaintiffs were (and are) required
to bring claims under the FTCA in federal district court.”); see Barnaby, 410 F. Supp. 2d at 146
(observing that the argument that the derivative jurisdiction doctrine is inapplicable under section
2679 because the state court retained jurisdiction “until [the federal defendants’] certification as

federal employees acting within the scope of their employment, actual removal, and substitution
of the United States as defendant had all taken place” would run “contrary to those cases that
have employed the doctrine of derivative jurisdiction to dismiss FTCA claims after their removal
from state court”); see also Bernard v. Yale Univ., No. 20-CV-0481, 2021 WL 1092628, at *7
(D. Conn. Mar. 22, 2021) (“There is no doubt that claims under the FTCA only can be brought in
federal court. As a result, under the doctrine of derivative jurisdiction, bringing a claim against
the Government in state court is futile.” (citations omitted)). Moreover, there is nothing in the
language of section 1441(f) to support the conclusion that Congress has or intended to bar
application of the doctrine to removals under section 2679. See Kennedy, 2013 WL 5435183, at
*5 (explaining that the current version of section 1441(f) shows that Congress “knows how to

explicitly eliminate derivative jurisdiction in removal statutes” and concluding “there is no
ambiguity in the statute, its meaning is clear and [the court] must, consistent with the clear
meaning of the statute, apply derivative jurisdiction to actions removed under section
2679(d)(2)”); see also Fiermonte, 2025 WL 296533, at *2 (“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.”).9

9 The Court also notes that in analogous contexts where the United States based removal
on both sections 1442 and 2679, district courts in the Second Circuit have found that the
derivative jurisdiction doctrine applies to section 1442 notwithstanding the invocation of section
2679(d), because the two statutes provide independent bases for removal. See A.Q.C. ex rel.
Castillo v. Bronx-Lebanon Hosp. Ctr., No. 11-CV-2656, 2012 WL 170902, at *4 (S.D.N.Y. Jan.
c. The Court lacks subject-matter jurisdiction over the state law claims
A district court must remand an action to state court “[i]f at any time before final
judgment it appears that the district court lacks subject matter jurisdiction.” 28 U.S.C. § 1447(c);
Hussein v. Maait, 129 F.4th 99, 120 n.17 (2d Cir. 2025) (“When a case has been removed from
state court to federal court, ‘[i]f at any time before final judgment it appears that the district court

lacks subject matter jurisdiction, the case shall be remanded.’” (quoting Vossbrinck v. Accredited
Home Lenders, Inc., 773 F.3d 423, 427 (2d Cir. 2014))); Link Mot. Inc. v. DLA Piper LLP, 103
F.4th 905, 912 (2d Cir. 2024) (same); Vossbrinck v. Accredited Home Lenders, Inc., 773 F.3d
423, 427 (2d Cir. 2014) (same); Brown v. Eli Lilly & Co., 654 F.3d 347, 356 (2d Cir. 2011)
(same); Kenmore Assocs., L.P. v. Burke, 367 F. App’x 168, 169 (2d Cir. 2010) (same).
Because the Court dismisses for lack of subject-matter jurisdiction the sole federal claims
in this action, the Court remands the remaining claims against Ryder, Randhawa, and Masih to
Queens County Supreme Court and dismisses Ryder’s motion for summary judgment for lack of
subject-matter jurisdiction.10 See Cangemi v. United States, 13 F.4th 115, 134 (2d Cir. 2021)

20, 2012) (“Although largely overlapping, the distinction between the two provisions is
important, as ‘Sections 1442(a)(1) and 2679(d) are two “separate and alternative statutes, both of
which authorize removal of cases to federal court.”’” (quoting Charles v. Inam, No. 99-CV-
12427, 2001 WL 79900, at *2 (S.D.N.Y. Jan. 30, 2001))); e.g., Rosa-Harris v. Samaritan Med.
Ctr., No. 23-CV-289, 2024 WL 149763, at *6 (N.D.N.Y. Jan. 12, 2024) (dismissing FTCA
claims against the United States removed to the district court on the basis of section 1442(a)(1)
and 2679 under the derivative jurisdiction doctrine because “even if dismissal was not warranted
in the Section 2679(d)(2) context, Section 1442(a)(1) provide[d] ample grounds for dismissal”);
see also Mahmud v. United States, No. 17-CV-4774, 2018 WL 2766141, at *1–3 (E.D.N.Y. June
7, 2018) (dismissing FTCA claims against the United States removed under sections 1442(a)(1)
and 2679(d)(2) without differentiating the bases for removal); Simmons, 2020 WL 3430514, at
*1 (dismissing FTCA claims against the United States removed on the basis of section
1442(a)(1) under the derivative jurisdiction doctrine and explaining section 2679 as the basis for
the United States substituting itself as the party defendant rather than as a basis for removal).
10 The Court also independently lacks jurisdiction over the remaining claims pursuant to
28 U.S.C. § 1332 because there is no complete diversity, as Plaintiffs Bilal and Aryan and
(“Where a district court dismisses all federal claims under Rule 12(b)(1) of the Federal Rules of
Civil Procedure, however, the district court is precluded from exercising supplemental
jurisdiction over the remaining state-law claims.” (citing Cohen, 873 F.3d at 399)).
III. Conclusion

For the foregoing reasons, the Court grants the United States’ motion and dismisses
without prejudice (1) Bilal’s claims and all crossclaims against the United States, and (2)
Ryder’s pending motion for summary judgment, all for lack of subject-matter jurisdiction. The
Court remands the action against Ryder, Randhawa, and Masih to state court.
Dated: March 18, 2025
Brooklyn, New York
SO ORDERED:

/s/MKB
MARGO K. BRODIE
United States District Judge

Defendant Randhawa are all citizens of New York. (Compl. ¶¶ 1–8.) See Windward Bora LLC
v. Browne, 110 F.4th 120, 126 (2d Cir. 2024); Pa. Pub. Sch. Emps.’ Ret. Sys. v. Morgan Stanley
& Co., 772 F.3d 111, 117–18 (2d Cir. 2014).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10826258. Public record. Not legal advice.