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Paul A. Rosberg v. Jeff Jacobsen

April 29, 2013

PAUL A. ROSBERG,
PLAINTIFF,
v.
JEFF JACOBSEN, DEFENDANT.



The opinion of the court was delivered by: John M. Gerrard United States District Judge

MEMORANDUM AND ORDER

This matter is before the court on Defendant's*fn1 Notice of Removal and Motion to Dismiss. (Filing Nos. 1 and 9.) Also pending is Plaintiff Paul Rosberg's ("Rosberg") "Motion to Transfer Case Back to Cedar County." (Filing No. 7.) For the reasons explained below, the court finds that Defendant properly removed this matter to this court, and also finds that this case must be dismissed because this court does not have jurisdiction to hear the case.

I. BACKGROUND

Rosberg filed a complaint in the District Court of Cedar County, Nebraska, on September 24, 2012, against Jeff Jacobsen ("Jacobsen"). (Filing No. 1-1 at CM/ECF pp. 1-3.) Generally, Rosberg alleges that Jacobsen, a federal employee, made false statements about Rosberg within a United States Department of Agriculture ("USDA") report. (Id.) Rosberg alleges that these false statements resulted in the federal government suspending the assignment of inspectors to his meat processing facility in Randolph, Nebraska. (Id. at CM/ECF pp. 1-4.)

Defendant removed the state-court action to this court on October 31, 2012. (Filing No. 1.) Along with the Notice of Removal, Defendant filed a certification by the United States Attorney that Jacobsen was acting within the scope of his employment at the time of the incident out of which Rosberg's claim arose. (Filing No. 1-2.) Jacobsen stated in the Notice of Removal that removal of the state-court action was required under 28 U.S.C. § 2679(d)(2), which states that a state-court action "shall be removed" upon a scope-of-employment certification by the Attorney General. (Filing No. 1 at CM/ECF p. 2.)

Rosberg filed a "Motion to Transfer Case Back to Cedar County" (Filing No. 7), on November 19, 2012. Thereafter, on December 6, 2012, Defendant filed a Motion to Dismiss. (Filing No. 9.) Rosberg did not respond to Defendant's Motion to Dismiss, and the time in which to do so has now passed. In this Memorandum and Order, the court will first take up Defendant's "Motion to Transfer Case Back to Cedar County" (Filing No. 7), and then address Defendant's Motion to Dismiss (Filing No. 9).

II. MOTION TO TRANSFER CASE TO STATE COURT

Rosberg has moved the court to transfer this matter back to the state district court. (Filing No. 7.) In support of the Motion, Rosberg argues that Defendant's basis for removal does not apply because Jacobsen was not acting within the scope of his employment when he made the false statements. (Id. at CM/ECF p. 1 ("[I]t is not his job to make written false statements that he knows are false in an attempt to destroy someone's business . . .").)

The Westfall Act, an amendment to the Federal Tort Claims Act, requires removal of a civil action commenced in state court if the Attorney General certifies that the defendant was acting within the scope of his employment. 28 U.S.C. § 2679(d)(2). The statute unequivocally states that the Attorney General's certification "shall conclusively establish scope of office or employment for purposes of removal." Id.; Osborn v. Haley, 549 U.S. 225, 241 (2007) ("Congress gave district courts no authority to return cases to state courts on the ground that the Attorney General's certification was unwarranted.").

Here, the United States Attorney for the District of Nebraska, exercising the authority given to her by the United States Attorney General, certified that Jacobsen was acting within the scope of his employment at the time of the incident out of which Rosberg's claim arose. (Filing No. 1-2.) This certification "renders [this court] exclusively competent and categorically precludes a remand to the state court." Osborn, 549 U.S. at 243. Accordingly, Plaintiff's "Motion to Transfer Case Back to Cedar County" (Filing No. 7) will be denied.

III. MOTION TO DISMISS

Defendant moves to dismiss this action pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure because the court lacks jurisdiction over the subject matter of the action. (Filing No. 9.) The court agrees with Defendant and, for the reasons discussed below, it will dismiss this matter.

A. Standard for Dismissal

The burden of establishing subject matter jurisdiction falls on the plaintiff. Jones v. Gale, 470 F.3d 1261, 1265 (8th Cir. 2006). A party challenging subject matter jurisdiction under Rule 12(b)(1) may mount either a facial or factual attack to the court's jurisdiction. Id. at 729-31. On a facial attack, the court limits its consideration to the allegations of the complaint. Id. at 729. On a factual attack, the court may consider matters outside of the pleadings that relate to the existence of subject matter jurisdiction without converting the motion to one for summary judgment. Id. Here, Defendant has offered the declaration ...


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