United States District Court, E.D. Wisconsin
BRADLEY J. SCHMITZ, et al., Plaintiffs,
MARQUETTE COUNTY CHILD SUPPORT IV-D AGENCY, et al., Defendants.
DECISION AND ORDER
ADELMAN DISTRICT JUDGE.
individuals, proceeding pro se, filed an action in state
court in Marquette County, Wisconsin, challenging various
governmental practices relating to child-support enforcement.
Most of the named defendants are state and county officials
or agencies. However, one of the plaintiffs, Michael
O'Grady, asserts a claim against an official of the
Social Security Administration that he identifies as John or
Jane Doe. After being served with the complaint, the Social
Security Administration removed the action to this court
under 28 U.S.C. § 1442. Before me now is the federal
defendant's motion to dismiss the claim against him or
plaintiffs' complaint, including exhibits, is 79 pages
long. However, only a single paragraph relates to the claim
against the federal defendant. (Compl. p. 10, ¶ 23.) In
this paragraph, O'Grady alleges that, in March 2009, an
unidentified employee of the Social Security Administration
began withholding money from O'Grady's Social
Security benefit payments pursuant to a state-court
garnishment order relating to O'Grady's unpaid
child-support obligations. O'Grady alleges that the defendant
continued to withhold money from his payments after
O'Grady provided him or her with a copy of a court order
dated May 6, 1999, dismissing the underlying child-custody
federal defendant moves to dismiss O'Grady's claim
against him under the doctrine of derivative jurisdiction.
Under this doctrine, a federal court's removal
jurisdiction is derivative of that of the state court.
See Minnesota v. United States, 305 U.S. 382, 388-89
(1939). If the state court in which the action was originally
filed lacked subject matter jurisdiction over the action, the
federal court will acquire none upon removal, even if the
federal court would have had jurisdiction if the case had
been originally brought in federal court. Id. Here,
the federal defendant argues that the Marquette County
Circuit Court lacked subject-matter jurisdiction to hear
O'Grady's claim against him or her, and that
therefore this court must dismiss the claim for lack of
federal defendant filed his or her motion to dismiss on June
18, 2018, and served it by mail on O'Grady on June 19,
2018. Under the local rules of this court, O'Grady had 21
days to file a response to the motion. See Civil
L.R. 7(b) (E.D. Wis. 2010, rev. 2015). That time has expired,
yet O'Grady has not filed a response to the motion. Under
the local rules, O'Grady's failure to file a response
to the motion is sufficient cause for the court to grant it.
See Civil L.R. 7(d). Moreover, because O'Grady
has not filed a response to the motion, he has not identified
any basis on which the state court might have exercised
jurisdiction over his claim against the federal defendant.
For these reasons, I will dismiss O'Grady's claims
against the federal defendant for lack of subject matter
jurisdiction. I will remand the remainder of the action,
i.e., the plaintiffs' claims against the defendants other
than the employee of the Social Security Administration, back
to the state court. See Williams v. City of Atlanta,
794 F.2d 624, 628 (11th Cir. 1986) (noting that federal court
may remand case removed to federal court under 28 U.S.C.
§ 1442 after dismissing claim against federal
reasons stated, IT IS ORDERED that the
federal defendant's motion to dismiss for lack of
jurisdiction (ECF No. 17) is GRANTED.
O'Grady's claim against the employee of the Social
Security Administration identified as John or Jane Doe is
dismissed for lack of subject-matter jurisdiction.
IS FURTHER ORDERED that the remainder of this action
is REMANDED to the Marquette County Circuit
 Although not alleged in the complaint,
it is clear that the Social Security Administration withheld
the funds in accordance with 42 U.S.C. § 659(a), which
provides that certain moneys owed to a person by the United
States (including some Social Security benefits) may be
garnished to pay child support or alimony.
 O'Grady attaches both the 2009
garnishment order and the May 6, 1999 order to his complaint.
The garnishment order appears to be “regular on its
face, ” see ECF No. 1-2 at ¶ 74 of 79,
and thus the federal defendant is almost certainly entitled
to immunity from any claim O'Grady might be attempting to
assert. See 42 U.S.C. § 659(f)(1) (providing
that federal disbursement officer is not liable with respect
to payments made pursuant to legal process regular on its
face). Also, the May 1999 order does not suggest that
O'Grady is not liable for child support. Instead, that
order was entered after the county sought to voluntarily
dismiss its own child-support case so that the issue of child
support could be litigated as part of the O'Gradys'
divorce case. See ECF No. 1-2 at p. 60 of 79. The
Social Security Administration's receiving a copy of the
1999 order would not have affected its obligation to comply
with a state-court garnishment order issued in 2009.
 I have considered warning O'Grady
that I would treat the defendant's motion as unopposed if
he did not file a response. However, as described in more
detail in the defendant's brief (ECF No. 18), O'Grady
has a long history of frivolous litigation in both state and
federal courts. He is currently barred from filing papers in
any court in the Seventh Circuit until he pays the filing
fees that he has already incurred in his “campaign of
frivolous litigation.” O'Grady v. Habeck,
No. 11-3881, ECF No. 14 (7th Cir. April 24, 2012). Like the
present suit, O'Grady's prior frivolous suits arose
out of his child-support obligations. In light of
O'Grady's track record of frivolous litigation, I
conclude that it is appropriate to dismiss ...