Felts v. Cleveland Housing Authority
Filing
49
ORDER: Plaintiff's 13 Motion to Remand and Plaintiff's 39 Motion to add additional claims is DENIED. The Court ORDERS Defendant CHA to filed no later than October 31, 2011 a copy of all process pleadings and orders in that case, including those filings and proceedings to Mr Felts's May 7, 2010 appeal to Bradley County Circuit Court. If Plaintiff Mr. Felts wishes to file a response to Defendant CHA's brief, is hereby ORDERED to do so no later than Novembe r 15, 2011.Further, Defendant's 22 Motion for Default Judgment and to Strike the Answer to Counter-Complaint is hereby GRANTED IN PART, as to the Motion to Strike, and DENIED IN PART, as to the Motion for Default Judgment. Plaintiff's Cou nter-Answer is hereby ORDERED STRICKEN, and Plaintiff is herby ORDERED to file an amended answer by October 21, 2011 that adheres strickly to the form in the order herein. Plaintiff is hereby ON NOTICE that if he fails to file his Amended Answer by O ctober 31, 2011, all of the allegations will be deemed admitted pursuant to Fed R. Civ. P. 89(b)(6). The final pretrial conference and the trial date-are hereby CANCELLED, to be rest in the Court's Order on the issue of subject matter jurisdicti on. Defendant CHA is hereby Ordered to review its previous filings for such instances of personal identification and to submit copies of any of its filings revealing such information with that information redacted to the Clerk's Office on or bef ore October 31, 2011. The Clerk's Office is hereby DIRECTED to redact Plaintiff's personal identification, including social security number and bank account number, where it appears on Plaintiff's pleadings at Pages # 289, 295, 296, 416, 422, 423, and 510. (Court Doc. 30-1, 5, 11,12: Court Doc. 33-1, 4, 10, 11: Court Doc. 39-11.). Signed by District Judge Harry S Mattice, Jr on 9/28/2011. (BJL) Modified on 9/26/2011 (BJL, ). Serviced to Plaintiff Felts.
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
at CHATTANOOGA
JOHN M. FELTS,
Plaintiff,
v.
CLEVELAND HOUSING AUTHORITY,
Defendant.
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Case No. 1:10-cv-238
Judge Mattice
ORDER
Before the Court are Plaintiff’s Motion to Remand to Bradley County Circuit Court
[Court Doc. 13], filed December 7, 2010; Defendant/Counter-Plaintiff’s Motion for Default
Judgment and to Strike Answer to Counter-Complaint [Court Doc. 22], filed January 20,
2011; and Plaintiff’s Motion to Add Additional Claim and Additional Defendants [Court Doc.
39], filed August 12, 2011. For the reasons explained below, Plaintiff’s Motion to Remand
to Bradley County Circuit Court [Court Doc. 13] and Motion to Add Additional Claim and
Additional Defendants [Court Doc. 39] will be DENIED, and Defendant/Counter-Plaintiff’s
Motion for Default Judgment and to Strike Answer to Counter-Complaint [Court Doc. 22]
will be GRANTED IN PART and DENIED IN PART.
I.
PLAINTIFF’S PRO SE STATUS
Plaintiff represents himself in this matter. Although a pro se pleading must be
construed liberally and “held to less stringent standards than formal pleadings drafted by
lawyers,” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citing Estelle v. Gamble, 429 U.S.
97, 106 (1976)), his pro se status does not exempt the Plaintiff from the requirement that
he comply with relevant rules of procedural and substantive law. Hulsey v. Texas, 929 F.2d
168, 171 (5th Cir. 1991). Pro se plaintiffs must comply with Fed. R. Civ. P. 8, which
provides that a complaint must contain “a short and plain statement of the claim showing
that the pleader is entitled to relief. . . .” LRL Properties v. Portage Metro Hous. Auth., 55
F.3d 1097, 1104 (6th Cir. 1995). Although the standard of review is liberal, it does require
more than the bare assertion of legal conclusions. Lillard v. Shelby Cnty Bd. of Educ., 76
F.3d 716, 726 (6th Cir. 1996); LRL Properties, 55 F.3d at 1103-04. Further, this Court is
not “required to create [Plaintiff]’s claims for him,” because “[t]o do so would requir[e the]
courts to explore exhaustively all potential claims of a pro se plaintiff” and would “transform
the district court from its legitimate advisory role to the improper role of an advocate
seeking out the strongest arguments and most successful strategies for a party.”
Thompson v. A.J. Rose Mfg. Co., 208 F.3d 215 (6th Cir. 2000) (internal quotation marks
omitted) (quoting Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir.1985). See
also, Crawford v. Crestar Foods, 210 F.3d 371 (6th Cir. 2000).
After Plaintiff failed to appear at the November 15, 2010 Scheduling Conference,
the Court ordered the parties to appear before the Court on December 7, 2010 for a show
cause hearing, where Plaintiff was to be prepared to “show cause why he should not be
subjected to sanctions, up to and including dismissal of the case with prejudice for failure
to prosecute this action, due to his failure to appear at the scheduling conference.” (Court
Doc. 11, Show Cause Order 1-2.) At that hearing, Defendant submitted evidence of its
costs associated with the November 15, 2010 scheduling conference Plaintiff did not
attend, and the Court took under advisement the issue of whether Plaintiff should be
sanctioned for his non-appearance. (Court Doc. 14, Dec. 7, 2010 Hr’g Mins.) The Court
then proceeded to conduct the Scheduling Conference.
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During that hearing – and throughout the pendency of this case in general – the
Court repeatedly warned Plaintiff of the risks associated with representing himself:
[P]roceeding pro se in a federal lawsuit is an enormous task.
If you choose to do that, I'm going to have to ask that you
familiarize yourself with the Federal Rules of Civil Procedure
and comply with the Court's orders in this case and meet all of
the deadlines that we're going to set today. Are you prepared
to do that?
(Court Doc. 19, Dec. 7, 2010 Sched. Conf. Hr’g Tr. 10:12-17.) Plaintiff assured the Court
that he wanted to proceed with the suit, and the Court again warned him that, if the Court
set a schedule for the case, Plaintiff would have to “educate [him]self as best [he could]
to pursue this case,” to do his “very best to comply with the deadlines that we're going to
set today.” (Id. at 11:12-19.) Plaintiff again agreed to do so.
The Court then conducted the scheduling conference and, before concluding it,
“warn[ed Plaintiff] one more time” that:
proceeding pro se in a federal lawsuit is a very demanding and
onerous undertaking. I'm going to give you as much leeway as
I can as a pro se litigant, but I'm not going to give you so much
leeway that your opponent suffers legal injury as a result of
your failure to comply with court-ordered deadlines.
(Id. at 28:24-29:6.) The Court once again asked if Plaintiff was prepared to “to familiarize
yourself with both the substantive and procedural law,” and after Plaintiff assured the Court
he was so prepared, the Court noted for a final time that “if you don't, keep in mind, I can
impose sanctions up to and including dismissal of your case,” which Plaintiff
acknowledged. (Id. at 29:7-16.) Finally, in accordance with the Court’s verbal instructions
at the December 7, 2010 hearing, the Court issued an Order the same day [Court Doc. 16],
in which it reminded Plaintiff that “pursuant to the same rule [E.D. Tenn. LR 83.13], he has
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a duty to monitor the progress of the case and to prosecute the action diligently and that
he is expected to be familiar with and follow the Federal Rules of Civil Procedure and the
Eastern District of Tennessee Local Rules.” (Court Doc. 16, Dec. 7, 2010 Order.)
II.
PLAINTIFF’S MOTION TO REMAND
A.
Legal Standard
Federal courts are courts of limited jurisdiction that possess “only that power
authorized by the Constitution and statute, which is not to be expanded by judicial decree.”
Hudson v. Coleman, 347 F.3d 138, 141 (6th Cir. 2003) (internal citations omitted). See
also, Walburn v. Lockheed Martin Corp., 431 F.3d 966, 970 (6th Cir. 2005). Accordingly,
there is a presumption that “a cause lies outside this limited jurisdiction, and the burden of
establishing the contrary rests upon the party asserting jurisdiction.” Hudson, 347 F.3d at
141 (internal citations and quotation marks omitted).
Pursuant to 28 U.S.C. § 1441(a), a civil action brought in state court may be
removed to federal court if the federal court has original jurisdiction over the matter.
Federal courts have original jurisdiction over “all civil actions arising under the Constitution,
laws, or treaties of the United States.” 28 U.S.C. § 1331. Further, “in any civil action of
which the district courts have original jurisdiction, the district courts shall have
supplemental jurisdiction over all other claims that are so related to claims in the action
within such original jurisdiction that they form part of the same case or controversy . . . .”
28 U.S.C. § 1367(a). Finally, “[w]henever a separate and independent claim or cause of
action within the jurisdiction conferred by [28 U.S.C. § 1331] is joined with one or more
otherwise non-removable claims or causes of action, the entire case may be removed.” 28
U.S.C. § 1441(c).
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B.
Background
Defendant filed its Notice of Removal [Court Doc. 1] on August 25, 2010. In that
Notice, Defendant identifies, as grounds for removal, that on August 23, 2010 it was served
with a copy of Plaintiff’s “Petition for nullity of eviction and to reinstate tenancy” [Court Doc.
1-1, Compl.] and a copy of Plaintiff’s “Uniform Civil Affidavit of Indigency” [Court Doc. 1-2].
The first document Defendant identifies as the “complaint,” which was itself an appeal for
a trial de novo pursuant to Tenn. Code Ann. §§ 29-18-128 and 16-15-729 of a final
judgment in an unlawful detainer action brought by Defendant in the General Sessions
Court for Bradley County, Tennessee filed by Plaintiff on August 20, 2010. Defendant
argued that the Court has original jurisdiction pursuant to 28 U.S.C. § 1331 over Plaintiff’s
claims alleging: “a violation of the Due Process Clause and the Equal Protection Clause
of the Fourteenth Amendment of the Constitution” (“due process claim” and “equal
protection claim”); “a violation of Section 504 of the Rehabilitation Act, as amended, 29
U.S.C. § 794 seq.” (“Rehabilitation Act claim”); “a violation of the Americans with
Disabilities Act ("ADA"), as amended, 42 U.S.C. § 12101 et seq.” (“ADA claim”); and “a
violation of the Fair Housing Act ("FHA"), as amended, 42 U.S.C. § 3601 et seq.” (“FHA
claim”). (Court Doc. 1, Notice of Removal ¶ 5.) Defendant also argued that the Court has
supplemental jurisdiction pursuant to 28 U.S.C. § 1367(a) over Plaintiff’s state statutory
and common law claims as they were so related to the claims over which the Court has
original jurisdiction. (Id. ¶ 7.)
As previously discussed, on December 7, 2010, the Court held a hearing on its
Show Cause Order [Court Doc. 11] and conducted the Fed. R. Civ. P. 16(f) Scheduling
Conference for this case. During that hearing, the Court asked Defendant’s counsel what
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the statutory basis for the subject matter jurisdiction was in the case, and Defendant’s
counsel responded by listing of Plaintiff’s federal claims and asserted that there was no
dispute as to the Court’s subject matter jurisdiction. (Hr’g Tr. 15:16-16:3.) During that
discussion Plaintiff did not raise his concerns about remand to the Court. But, shortly
thereafter, he did say that he “applied two motions” one of which was a “motion [ ] to
remand back to Bradley County Circuit Court . . . [e]ven though the time limit, I believe was
30 days had ran out on that, they have made consideration and expanded past the time
limit.” (Hr’g Tr. 17:17-18:5.) The Court directed him to file those motions with the Clerk’s
Office before he left the building that day (Hr’g Tr. 18:6-11), and Plaintiff filed the instant
Motion to Remand [Court Doc. 13] as directed.
In his “Motion to Remand to Bradley County Circuit Court” [Court Doc. 13], Plaintiff
asserts that this case “ha[s] been unethically and immorally removed to this Court” in an
“effort to by-pass a Circuit Court trial in Bradley County . . . likely due to adverse rulings
against CHA in two hearings in Circuit Court, in which CHA failed in having this Court case
dismissed.” Plaintiff asserts that he “should have his trial in Bradley County court system”
and that “[i]f either party doesn’t agree with the outcome of a trial in Circuit Court of Bradley
County, Tennessee, then it is within their right to appeal to this Court.” (Id. at 2.) Plaintiff
apologizes for his “slowness in preparing for this case,” which was due to an injury to his
arm and his lack of transportation to Chattanooga, but asserts that “[u]nder extreme
situation” – in this case, his injury – “even after the time limit to remand had expired, the
petitioner can request that the Court remand the case back to Circuit Court.” (Id. at 3-4.)
Plaintiff concludes his motion by citing to 28 U.S.C. § 1443(1). (Id. at 4.)
On December 9, 2010, Defendant responded to Plaintiff’s motion by arguing first
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that it was untimely, as it was not filed within 30 days after the filing of the notice of
removal. (Court Doc. 18, Def./Counter-Pl.’s Respon. to Mot. to Remand to Bradley Cnty.
Cir. Ct. 1.) (“Def.’s Remand Respon.”) Further, Defendant argued, although the Court could
remand at any time before final judgment if it becomes apparent that it lacks subject matter
jurisdiction, the Court has subject matter jurisdiction because the “Complaint” at issue here
– Plaintiff’s appeal from the General Sessions Court for Bradley County – asserts federal
claims falling within the Court’s original jurisdiction pursuant to 28 U.S.C. § 1331. (Id. at 3.)
Finally, it argues that Plaintiff’s citation to 28 U.S.C. § 1443(1) is misplaced because it
applies to “citizen defendants” to protect them from “civil rights violations when such
persons cannot obtain a fair hearing in a state court,” whereas “Plaintiff/Counter-Defendant
is the initiating part in this case who chose to bring federal discrimination claims in
Tennessee state court.” (Id. at 4, 5.)
Finally, on December 22, 2010, Plaintiff filed his “Counter Response to
Defendant/Counter-Plaintiff Response to Motion to Remand to Circuit Court of Bradley
County, Tennessee” [Court Doc. 20] (“Pl.’s Remand Reply”) in reply to Defendant’s
response. In that reply, Plaintiff first reiterates his argument that his tardiness is excusable
and due to Defendant’s actions. Second, Plaintiff argues that Tennessee state courts are
more appropriate both logically and practically because this type of “case of non-payment
of rent is often considered” there; because “[r]emand is needed to allow the State Courts
of Tennessee to decide local issues of first impression”; and because remand “would be
both logical and would benefit both parties” because it “can be more swiftly heard and
settled” in Bradley County Circuit Court and that court is “in close proximity to where the
Plaintiff lives, along with easier access and ability to plead his case.” (Id. at 3.) Third,
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Plaintiff argues that Defendant was untimely in removing the case in the first place, as he
asserted federal claims in his first letter of Appeal on May 7, 2010 [Court Doc. 20-1]; in his
June 16, 2010 motion [Court Doc. 20-2]; and in his July 12, 2010 answer [Court Doc. 20-3],
all of which are attached as exhibits. (Id. at 4-5.) Defendant did not contest the authenticity
of these documents or Plaintiff’s contentions regarding his earlier pleadings, and thus this
matter is ripe for decision.
C.
Analysis
As an initial matter, 28 U.S.C. § 1443(1) does not appear to be applicable. Two
conditions must be satisfied for a case to be removed pursuant to 28 U.S.C. § 1443(1):
“the right denied defendant must be one that arises under a federal law that provides for
specific civil rights stated in terms of racial equality” and “the defendant must be unable to
or be denied the opportunity to enforce these specified federal rights in the courts of the
state in question.” Conrad v. Robinson, 871 F.2d 612, 615 (6th Cir. 1989) (citing Johnson
v. Mississippi, 421 U.S. 213, 219 (1975)). Neither of these conditions are even alleged in
this case, let alone appear to be satisfied, and thus the Court will move on to consider the
other statutes potentially supporting removal.
Plaintiff’s other arguments in his motion to remand – relating to the characteristics
of Tennessee state courts that make them a more appropriate forum and to Defendant’s
lack of timeliness in filing the Notice of Removal – relate to procedural defects in the
removal process, not a lack of subject matter jurisdiction. Wis. Dept. of Corr. v. Schacht,
524 U.S. 381, 392 (1998) (holding that where a party alleges a defect in removal “because
the removal took place after relevant time limits had expired,” that party must file a motion
to remand “no later than 30 days after the filing of the removal notice.”)
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28 U.S.C. § 1447(c) clearly states that “[a] motion to remand the case on the basis
of any defect other than lack of subject matter jurisdiction must be made within 30 days
after the filing of the notice of removal under section 1446(a).” Although Plaintiff identifies
several reasons why his delay should be excused – injury, an agreement he believed he
had with Defendant’s counsel, etc. – there does not appear to be a good cause exception
to the mandatory filing period. Compare 28 U.S.C. §§ 1446-47 with Fed. R. Civ. P. 4(m)
(“But if the plaintiff shows good cause for the failure, the court must extend the time for
service for an appropriate period.“) Therefore, any party who does not move to remand the
case within thirty days of its removal has “waived any challenge to this potential procedural
defect.” Idemudia v. J.P. Morgan Chase, No. 10-1074, 2011 WL 3648219, at *3 n.2 (6th
Cir. 2011) (citing Loftis v. United Parcel Serv., Inc., 342 F.3d 509, 516-17 (6th Cir. 2003)).
Because by failing to file his Motion to Remand within thirty days, Plaintiff has
waived any challenges to potential procedural defects, and his Motion to Remand to
Bradley County Circuit Court” [Court Doc. 13] will be DENIED.1
1
Plaintiff has taken several actions since preparing this m otion which could be read as indicating he
had abandoned his rem and argum ent.
First, although he prepared this m otion before the Decem ber 7, 2010 hearing, he m entioned it only
once during that hearing, in passing in response to the Court’s deadline for the parties to notify the Court about
their interest in the Federal Mediation Program . More im portantly, at that hearing – during which the Court
could discuss the m atter with Plaintiff directly and clearly and thus which would have been the m ost
appropriate tim e to discuss this issue – the Court directly asked the parties if there was a question about
subject m atter jurisdiction, and Plaintiff did not say anything, let alone raise the issues in the instant m otion.
Further, since filing this m otion, Plaintiff has twice m oved to am end his com plaint, one of which has
already been granted. (Court Doc. 30, Pl.’s Motion to Am ended Com pl., filed Mar. 10, 2011; Court Doc. 32,
Apr. 18, 2011 Order Granting Mot. to Am .; Court Doc. 39, Pl.’s Mot. to Add Add’l Claim & Add’l Defs., filed
Aug. 12, 2011.) In addition, Plaintiff also sent to the Court a “Motion to Reasonable Accom m odation and to
Expunge Plaintiff/Counter-Defendant’s August 12, 2010 Eviction Record,” [Court Doc. 44] docketed as filed
on February 24, 2011. In the Order ruling on that m otion – issued concurrently with this Order – the Court
construes the m otion, to the extent it discusses “reasonable accom m odation,” as one to am end the com plaint
to add additional detail regarding his FHA claim s and grants that m otion.
On the other hand, in his February 25, 2011 “Correction of address and update” letter to the Clerk’s
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D.
Remaining Questions as to Subject Matter Jurisdiction
Although Plaintiff’s Motion to Remand will be denied for the reasons outlined above,
that motion and the responsive briefing have raised significant questions as to whether
subject matter jurisdiction exists in this case.
The Court is under a continuing obligation to review its subject matter jurisdiction
and may raise the issue sua sponte. N.H. Ins. Co. v. Home Sav. & Loan Co. of
Youngstown, Ohio, 581 F.3d 420, 423 (6th Cir. 2009). See also, United States v. Bowers,
615 F.3d 715, 718 (6th Cir. 2010) (“subject-matter limitations on federal jurisdiction must
be policed by the courts on our own initiative”) (quoting Ruhrgas AG v. Marathon Oil Co.,
Office [Court Doc. 29], he says:
In a recent em ail from Cleveland Housing Authority attorney, [CHA’s counsel] m entioned that
Judge Mattice will rule on m y m otion to rem and soon. Today, I em ailed the Cleveland
Housing Authority attorney and told him that I should com plete m y am ended com plaint in
about seven to ten days. It is m y apology that I hadn't already com pleted the am ended
com plaint as it had been placed on a back burner several tim es, due to m y effort to respond
housing attorney concerns on discovery, his recent notice and other docum entation.
It is m y hope that Judge Mattice considers m y am ended com plaint before ruling on the
m otion to rem and because in that am ended com plaint outlines Tennessee State Law of
Landlord Uniform Codes, the sam e Tennessee codes used at the end of m y January 7th,
2011 answer. At the tim e, I ran out of tim e to com plete the details and specifics of why those
Tennessee code sections relates to this case and m y am ended com plaint does address that
issue with the needed specifics.
Yesterday, I subm itted a m otion for reasonable accom m odation and used the Federal Law
in m y argum ent because while Tennessee Law has a reasonable accom m odation statue in
em ploym ent, it does not have a reasonable accom m odation in housing. Most im portantly
though, is that this case is of first im pression of m ore than one issue and I feel that the state
court should first chance at addressing it . . . .
(Id. at 2-3.) Therefore, while Mr. Felts’s understanding of the pleading regim e and requirem ents for rem and
appears to be som ewhat confused, in m oving to “am end” his “com plaint,” he not only does not appear to be
abandoning his m otion for rem and, but actually believes the augm ented legal argum ent in his answer will
bolster his argum ents in favor of rem and , rather than underm ining them .
Because his failure to m ove for rem and within the prescribed period is determ inative, the Court need
not reach the question of whether his “am endm ents” to his “Com plaint” indicated that he abandoned his
rem oval argum ent or constitute a waiver of the sam e.
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526 U.S. 574, 583 (1999)); Campanella v. Comm. Exch. Bank, 137 F.3d 885 (6th Cir.
1998). This is especially true in the removal context, where “[d]ue regard for state
governments' rightful independence requires federal courts scrupulously to confine their
own jurisdiction to precise statutory limits.” Ahearn v. Charter Twp. of Bloomfield, 100 F.3d
451, 454 (6th Cir. 1996) (citing Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 109
(1941)) (internal quotation marks omitted). Finally, jurisdiction is assessed “by examining
the complaint as it existed at the time of removal.” Harper v. AutoAlliance Intern., Inc., 392
F.3d 195, 210-11 (6th Cir. 2004).
The most significant questions arise from the nature of the filing removed by
Defendant2 and from the cursory nature of CHA’s Notice of Removal. The procedural
posture of this case, which CHA itself characterizes as an “appeal . . . of a final judgment
in [CHA’s] unlawful detainer action,” is unlike most cases removed to this Court, where an
individual files a civil action in state court and the defendant in that action quickly files a
notice of removal and removes the case to this Court. As represented by CHA in its Notice
of Removal, this matter originally arose when CHA filed an unlawful detainer action against
Mr. Felts in Bradley County General Sessions Court. (Def.’s Remand Respon. 1.) The
General Sessions Court awarded CHA possession of the property on April 28, 2010 and
damages on August 12, 2010. (Id.) Although CHA left many of the relevant details of the
procedural history out of its Notice of Removal, subsequent pleadings have made clear that
immediately after being awarded damages on August 12, 2010, CHA evicted Mr. Felts, and
Mr. Felts filed his appeal for a trial de novo in Bradley County Circuit Court – “Petition for
2
For the sake of clarity, hereinafter Defendant Cleveland Housing Authority will be referred to as
"CHA" and Plaintiff will be referred to as "Mr. Felts."
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nullity of eviction and to reinstate tenancy” [Court Doc. 1-1] – on August 20, 2010, which
pleading was served on CHA August 23, 2010. (Id.)
Although this Court agrees that Mr. Felts’s petition/appeal raises certain federal
issues, it is not clear it does so as a “civil action brought in a State court,” as is required by
for a case to be removable. 28 U.S.C. § 1441(a) (providing for removal of “any civil action
brought in a State court of which the district courts of the United States have original
jurisdiction”). 28 U.S.C. § 1441(a) authorizes removal “by the defendant” of “any civil action
brought in a State court” of which this Court has original jurisdiction. 28 U.S.C. § 1441(a)
(emphasis added). Because the Notice of Removal in this case contains so few details and
so little argument, it is not clear why CHA believes Mr. Felts’s appeal for a trial de novo,
the alleged “Complaint” in this action, constituted a new civil action, rather than just a
subsequent filing in an already-pending action. Nor does CHA’s Notice of Removal make
clear why Mr. Felts’s appeal for a trial de novo pursuant to Tenn. Code Ann. §§ 29-18-128
and 16-15-729 transforms him from a defendant in an unlawful detainer action to a plaintiff
“bringing” a “civil action . . . in a State court” as required for removal. (Id.)
Although this matter does not appear to be litigated often, one case that seems at
least partially on point – B&G Constr., Inc. v. Polk, 37 S.W.3d 462 (Tenn. Ct. App. 2000)
(discussing timely removal in an unlawful detainer action appealed to the Circuit Court after
a judgment was entered in the General Sessions Court) – refers to the landlord who filed
the unlawful detainer action and who was the plaintiff in the proceedings before the
General Sessions Court as the “Plaintiff” throughout, both in the proceedings before the
Circuit Court and the lower court. Likewise, the defendant in the lower court action, the
tenant being evicted, is referred to as the “Defendant” throughout. (Id.) Finally, although
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in B&G Constr., Inc. the Tennessee Court of Appeals makes clear that the filing of an
appeal to the Circuit Court “open[s] the door for Plaintiff to amend its Complaint,” in that
case “to include relief not available in the General Sessions proceeding,” in its Notice of
Removal, CHA does not argue that Plaintiff’s petition/appeal effectively amended his
answer to assert a counterclaim, which could constitute “bringing” a removable civil action.
(Id. at 465-66.)
Further, this does not appear to be the situation contemplated by 28 U.S.C. §
1446(b), where “the case stated by the initial pleading is not removable,” but where a
Defendant receives “through service or otherwise, of a copy of an amended pleading,
motion, order or other paper from which it may first be ascertained that the case is one
which is or has become removable,” that is, where a plaintiff has added a claim of which
this Court has original jurisdiction. Not only did CHA not argue this circumstance in its
Notice of Removal, but Mr. Felts’s Remand Reply and the exhibits attached thereto clearly
establish that Mr. Felts had repeatedly referred, in the proceedings before the General
Sessions and Circuit Courts, to the federal laws CHA cites as the basis for original
jurisdiction in its Notice of Removal.
For instance, in his Remand Reply, Mr. Felts states that “Exhibit 1 shows that the
P/CD asserted Federal Law in his first letter of Appeal on May 7, 2010 to Bradley County
Circuit Court and CHA did not bother to remove the case to Federal Court.” (Pl.’s Remand
Reply 4.) And indeed, his April 28, 2010 “appeal” of the General Sessions Court’s award
of a writ of possession to CHA [Court Doc. 20-1] has the following language:
If it is possible for a landlord to alter its policies and rules so
that a tenant with a disability can remain in a unit, and is not
unduly burdensome, the landlord must make the
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accommodation and preserve the tenancy. Housing that has
been developed with assistance from the U.S. Department of
Housing and Urban Development (HUD) will also have an
obligation under Section 504 of the Rehabilitation Act of 1973,
29 U.S. C. §794, to provide such accommodations.
Defendant assume outside circumstances such as his
advocacy to protect tenant's rights, which may had led to
Cleveland Public Housing unwillingness to give the defendant
the same reasonable accommodation and equal opportunity
that it has given to other disability tenants.
(Court Doc 20-1, J. Felts’s May 7, 2010 “Appeal to eviction hearing on April 28, 2010” 2.)
Therefore, even if CHA did not recognize “reasonable accommodation” as the term of art
relating to certain requests between landlords and disabled tenants, as early as May 7,
2010 Plaintiff not only clearly referred to a federal law (the Rehabilitation Act), but
seemingly raised that law as a defense to eviction, and even potentially raised a First
Amendment retaliation-type claim.
Mr. Felts makes the same arguments – that he “asserted Federal law” in the
underlying state court proceedings and that CHA did not remove the action at those
assertions – in relation to his June 16, 2010 “Motion for to Appoint an Guardian Ad Litem”
[Court Doc. 20-2] and July 12, 2010 “Answer to Motion to Reconsider Appellee’s Motion
to Dismiss” [Court Doc. 20-3]. (Pl.’s Remand Reply 4-5.) Although the latter does not
appear to discuss any rights or claims arising under federal laws,3 Mr. Felts’s June 16,
2010 Guardian Ad Litem motion unquestionably reasserted the applicability of the
Rehabilitation Act and added several new federal laws to the briefing, including the
Americans with Disabilities Act, the Fair Housing Amendments Act of 1988 (“FHAA”), and
3
M r. Felts’s “Answer to Motion to Reconsider Appellee’s Motion to Dism iss” repeatedly m entions
"accom m odation," in depth, but does not appear to use that term within the context of a “reasonable
accom m odation” m andated by the ADA or Rehabilitation Act.
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the Due Process Clause of the Fourteenth Amendment of the United States Constitution.
For instance, Mr. Felts cited “Blatch v. Franco, 360 F. Supp. 2d 595 (S.D.N.Y. 2005)” in
support of his argument that, because he is an individual with mental disabilities,4 CHA’s
attempt to evict him without appointing a guardian ad litem first was a violation of “the
Americans with Disabilities Act, Section 504 of the Rehabilitation Act of 1973, the Fair
Housing Amendments Act, and due process of law.”5
Therefore, as with Plaintiff’s abortive May 7, 2010 appeal, Plaintiff’s Guardian Ad
Litem motion, while potentially suffering from certain legal deficiencies, also clearly refers
to several federal laws and, in the case of the latter motion, the laws cited therein are
largely coextensive with those cited in CHA’s Notice of Removal as the basis for federal
question jurisdiction, including the ADA, the FHAA and his Fourteenth Amendment due
process rights. Although this Court has already noted that untimeliness in filing the notice
of removal is a procedural defect that cannot serve as a basis for remand in this case since
Mr. Felts did not file his motion to remand within the required time period, Mr. Felts’s
apparent history of asserting federal arguments is significant both because he seemingly
raises them as a defense to the eviction proceeding, rather than as separate and
independent claims, and because it is some evidence that, for at least some period of time,
CHA regarded Mr. Felts’s discussion of these statutes as defenses, or at a minimum, did
4
To his Motion for to Appoint an Guardian Ad Litem, Mr. Felts attached a copy of Social Security
Adm inistrative Law Judge Decision finding Mr. Felts disabled due to both m ental and physical im pairm ents.
(Court Doc. 20-2, Ex. A, 6-10, Nov. 27, 2009 Soc. Sec'y Decision at 6, 8.)
5
But see, Blatch ex rel. Clay v. Hernandez, 360 F. Supp. 2d 595, 615 (S.D.N.Y. 2005) (rejecting Mr.
Felts’s very argum ent because “there is no evidence of record from which a factfinder could rationally
conclude, without engaging in unwarranted and unseem ly stereotyping, that each and every m em ber of this
broadly-defined class of persons is so incapable of rational thought and coherent com m unication as to require
the appointm ent of expert representation in order to enjoy a m eaningful opportunity to be heard with regard
to tenancy term ination.”)
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not regard his discussion of those statutes as stating a counterclaim, requiring an answer
but also giving CHA the right of removal. By the terms of the removal statute, it is only
available to a defendant, and CHA cannot make the instant action eligible for removal
merely by labeling Mr. Felts’s petition/appeal a “Complaint” and Mr. Felts “Plaintiff.”
Because, as the Court has already noted, there is a presumption against the
removability of an action and because the burden of establishing an action is removable
rests on the party asserting removal jurisdiction – in this case, CHA – the Court will
ORDER Defendant CHA to file a brief no later than October 31, 2011 outlining in detail its
argument for why subject matter jurisdiction exists in this case. Further, although the Court
has already made clear that jurisdiction is assessed by examining the “complaint” as it
existed at the time of removal, Defendant CHA’s brief shall also analyze the effect, if any,
of Mr. Felts’s subsequent filings before this Court, particularly his amendments to the
“Complaint,” in addition to addressing the questions and concerns highlighted by the Court
heretofore and any other argument CHA deems relevant. All arguments shall be supported
by clear, specific citations to relevant authority. If Plaintiff Felts wishes to file a response
to Defendant CHA’s brief, he will be ordered to do so by no later than November 15, 2011.
Finally, despite CHA’s apparent belief to the contrary, the Court believes that the
proceedings on the unlawful detainer action originally filed in and heard before the General
Sessions Court are inextricably linked to the instant case and that it is impossible for this
Court to consider adequately the question of its own subject matter jurisdiction without
having all the information related to those proceedings. Accordingly, and pursuant to 28
U.S.C. §§ 1446(b), 1447(b), the Court will ORDER Defendant CHA to file on the record by
no later than October 31, 2010 a copy of “all process, pleadings, and orders” in that case,
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including those filings and proceedings relating to Mr. Felts’s May 7, 2010 appeal to
Bradley County Circuit Court.
Such filing shall take the form of an affidavit of counsel
(1)
outlining, in separate, numbered paragraphs each event or filing that took
place in those underlying state court proceedings;
(2)
attaching true and correct copies of those filings; and
(3)
authenticating those copies by affirming that the attached copies are true
and correct copies.
Such a timeline shall be in chronological order and shall start with no event later than the
“14 Day-Notice of Lease Termination for Non-Payment of Rent” cited by CHA in its
Counter-Complaint, but may start with an earlier event, including the signing of Plaintiff’s
lease. Finally, at the filing’s conclusion, counsel shall certify that to the best of his or her
knowledge, that filing constitutes a complete record of all the filings in the underlying case.
To the extent the parties find it necessary hereinafter to refer to a document that is
contained within this complete record of the underlying case history – including if CHA
wishes to cite such a document in its brief on subject matter jurisdiction – the Court will
ORDER that they shall not attach those documents as exhibits to their pleadings, but shall
instead cite to the document attached as an exhibit to this complete history of the
underlying proceedings.
II.
DEFENDANT’S MOTION FOR DEFAULT JUDGMENT AND MOTION TO STRIKE
A.
Background
After filing its Notice of Removal on August 25, 2010, Defendant CHA filed its
Answer to Plaintiff’s Complaint and Counterclaim [Court Doc. 6] on September 8, 2010.
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Given the volume of mail returned as undeliverable and Mr. Felts’s tenuous housing status
at the time, it is not clear whether Mr. Felts received a copy of CHA’s Answer and
Counterclaim, but regardless, he did not file a response to the counterclaim within the time
specified by Fed. R. Civ. P. 12.
At the December 7, 2010 Show Cause Hearing and Scheduling Conference, CHA’s
counsel notified the Court that Mr. Felts had yet to file his answer to the counterclaim.
(Dec. 7, 2010 Hr’g Tr. 26:15-18.) The Court told Mr. Felts that he was “required to respond
to that counter claim,” and that his “deadline has long pas[sed],” and asked if he had a
copy of that counter claim. (Id. at 26:23-27:1.) Mr. Felts replied that he did not have a copy
and further that he “didn't even know I was supposed to be responding to it.” (Id. at 27:2-3.)
The Court told Mr. Felts that “that's a real problem” and had a copy of the Answer and
Counterclaim printed for and given to him. (Id. at 27:4-6.) The Court then notified Mr. Felts
that “by separate order, I'm going to order you to file a response to that counter claim no
later than December 29[, 2010],” giving him “approximately three weeks” to answer, and
that if he did not “respond to that counter claim by that time [the Court was] going to
assume that [he was] admitting [ ] all of the allegations in the counter claim.” (Id. at 27:616.) Mr. Felts assured the Court that he planned to file both his answer and the amended
complaint soon. (Id. at 27:20-21.)
Because Mr. Felts did not file his answer to Defendant’s counterclaim [Court Doc.
21] until January 12, 2011, two weeks after the December 29, 2010 deadline specified by
the Court, on January 20, 2011, CHA filed a “Motion for Default Judgment and to Strike
Answer to Counter-Complaint” [Court Doc. 22] (“Def.’s Mot. for Default & to Strike”). In that
motion, CHA argued that not only was Mr. Felts’s Answer to the Counter-Complaint not
-18-
timely filed, but that its contents “fail to admit or deny the allegations of the CounterComplaint” and that it “is nonresponsive, containing only impertinent, immaterial, and
scandalous matters, which are both legally and factually unfounded.” (Def.’s Mot. for
Default & to Strike 2.) Therefore, CHA argues, because Mr. Felts’s “Answer” is “lengthy”
and “disorganized,” it should be stricken because his failure to adhere to the requirements
of Fed. R. Civ. P. 8 is prejudicial to Defendant. (Id. at 7-10.) Further, CHA asserts that
because Mr. Felts’s answer was both untimely and did not conform to the requirements of
Fed. R. Civ. P. 8, he failed to respond or plead an affirmative defense, and thus CHA is
entitled to default judgment pursuant to Fed. R. Civ. P. 55. (Id. at 2-7.)
Mr. Felts did not file a response to CHA’s Motion, but in his February 25, 2011 letter
to the Clerk’s Office [Court Doc. 29] correcting and updating his address in accordance
with the Court’s instructions on December 7, 2010, he apologized for his tardiness in
submitting his Amended Complaint, which he explained was the result of his efforts to
respond to discovery requests, to respond to the instant Motion for Default Judgment and
to Strike, and to prepare various other motions he hoped the Court would consider before
ruling on his Motion to Remand, which CHA’s counsel informed him would happen shortly.
B.
Legal Standard
Fed. R. Civ. P. 8 establishes the rules of pleading, including the form it should take
and a party’s responsibilities in answering a claim asserted against it. Fed. R. Civ. P. 8(d)
& (b). As to the former, the pleading’s form, the allegations in the pleading at issue “must
be simple, concise, and direct”; “no technical form is required.” Fed. R. Civ. P. 8(d)(1).
Further, arguments can be made in the alternative and, pursuant to Fed. R. Civ. P. 8(e),
this Court must construe pleadings “so as to do justice,” and “liberally in order to prevent
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errors in draftsmanship from barring justice to litigants.” Carter v. Ford Motor Co., 561 F.3d
562, 566 (6th Cir. 2009) (internal quotation marks omitted) (citing Fed. R. Civ. P. 8(e) and
Ritchie v. United Mine Workers of Am., 410 F.2d 827, 833 (6th Cir.1969)).
As to the latter, a party must do two things in its response to a pleading: “state in
short and plain terms its defenses to each claim asserted against it” and “admit or deny the
allegations asserted against it by an opposing party.” Fed. R. Civ. P. 8(b)(1)(A)-(B). This
rule even lays out the different permissible forms a response to allegations can take:
(1)
admit the allegations [Fed. R. Civ. P. 8(b)(1)(B)];
(2)
deny the allegations [Fed. R. Civ. P. 8(b)(1)(B)], including generally by filing
a general denial [Fed. R. Civ. P. 8(b)(3)] or partially by admitting the part that
is true and denying the rest [Fed. R. Civ. P. 8(b)(4)]; or
(3)
where applicable, state that the respondent lacks knowledge or information
sufficient to form a belief about the truth of the allegations, which response
has the effect of a denial [Fed. R. Civ. P. 8(b)(5)].
Fed. R. Civ. P. 12(f) provides that the Court “may strike from a pleading an
insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” But,
“the action of striking a pleading should be sparingly used by the courts,” because “[i]t is
a drastic remedy to be resorted to only when . . . the pleading to be stricken has no
possible relation to the controversy.” Brown & Williamson Tobacco Corp. v. U.S., 201 F.2d
819, 822 (6th Cir. 1953). Finally, because “[a] motion to strike admits the well-pleaded
allegations of the pleading asked to be stricken,” in deciding on this motion to strike, the
Court accepts as true all allegations in the answer. Id.
Finally, Fed. R. Civ. P. 55(a) provides as follows:
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When a party against whom a judgment for affirmative relief is
sought has failed to plead or otherwise defend, and that failure
is shown by affidavit or otherwise, the clerk must enter the
party's default.
The United States Court of Appeals for the Sixth Circuit has noted that “[j]udgment by
default is a drastic step which should be resorted to only in the most extreme cases,” which
do not include situations “[w]here default results from an honest mistake rather than willful
misconduct, carelessness or negligence.” United Coin Meter Co., Inc. v. Seaboard
Coastline RR., 705 F.2d 839, 845 (6th Cir. 1983) (internal quotation marks omitted).
In considering whether to enter a default judgment, this Court considers this
preference for a decision on the merits along with several other factors, including: “(1)
possible prejudice to the plaintiff; (2) the merits of the claims; (3) the sufficiency of the
complaint; (4) the amount of money at stake; (5) possible disputed material facts; [and] (6)
whether the default was due to excusable neglect.” Russell v. City of Farmington Hills, 34
F. App’x 196, 198 (6th Cir. 2002). Finally, “[m]ere delay in satisfying a plaintiff's claim, if it
should succeed at trial, is not sufficient prejudice.” United Coin Meter Co., Inc., 705 F.2d
at 845 (internal citations and quotation marks omitted).
C.
Analysis
The title alone of Mr. Felts’s “Counter Answer and Response to Defendant’s Answer
and Counter-Complaint” reveals that Mr. Felts seems to conflate his “Complaint” with his
duty to respond to Defendant’s Counter-Complaint. Given that the Court suffered enough
confusion about the posture of the litigation to call the sufficiency of the Notice of Removal
into question and to order briefing on its subject matter jurisdiction, it is likely that at least
some of the confused nature of the “Counter Answer” is assignable to CHA. Further, while
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the amount of money at issue does not appear to be significant, neither does the
“prejudice” due to late-filing, particularly given that the delay was only two weeks.
Further, the balance of the factors identified in Russell militate in favor of denying
the motion for a default judgment. The claims appear to be at least plausible, and the
“complaint” pled ample factual and legal allegations. In addition, it appears as though there
are a significant number of disputed materials facts, and Plaintiff’s February 25, 2011 letter
to the Clerk’s Office reveals a litigant aware of his deadlines and actively prosecuting his
case – though potentially unsure how to balance competing deadlines (in terms of
responding to Defendant’s discovery requests and later-filed motions) – and apologetic for
his tardiness. Accordingly, although Plaintiff’s failure to submit his answer within the time
ordered by the Court is a very serious matter, it does not rise to the level so as to justify
striking the answer and entering his default, and Defendant’s Motion for Default Judgment
and to Strike Answer to Counter-Complaint” [Court Doc. 22] will be DENIED IN PART as
to the Motion for Default Judgment.
CHA also overstates the case by saying “[t]he Answer is entirely nonresponsive to
the allegations contained in the Counter-Complaint.” (Def.’s Mot. for Default & to Strike 4.)
Mr. Felts clearly responds to at least some of CHA’s allegations, particularly with regards
to his attempts and the attempts of various individuals on his behalf to pay his March 2010
rent. But, CHA is correct that Mr. Felts’s “Counter Answer” fails to conform with Fed. R. Civ.
P. 8's requirements, in that his “Counter Answer” is rambling and imprecise and does not
explicitly admit, deny, or state a lack of sufficient knowledge to answer each of CHA’s
allegations. Further, most of his “Counter-Answer” it is also susceptible to being stricken
pursuant to Fed. R. Civ. P. 12(f) as redundant, since it is largely comprised of arguments
-22-
made and evidence introduced in and duplicative of other filings, and as immaterial and
impertinent, since many of his arguments do not relate to any actions alleged by either
party and since many of the lengthy excerpts are not relevant to this case.6
Accordingly, as to the Motion to Strike portion of Defendant’s Motion for Default
Judgment and to Strike Answer to Counter-Complaint [Court Doc. 22] will be GRANTED
IN PART and DENIED IN PART. Plaintiff’s “Counter-Answer” will be STRICKEN, but he
will be given leave to file an amended answer. The Court will ORDER Plaintiff to file an
amended answer by October 31, 2011 that adheres strictly to the following form:
(1)
Plaintiff Mr. Felts must respond to only those allegations in found in
Defendant CHA’s “Counter-Complaint,” which consists of paragraphs 1-19
located on pages 17-20 of Defendant CHA’s “Answer and CounterComplaint” [Court Doc. 6].
(2)
Plaintiff’s amended answer shall consist of nineteen (19) separate,
numbered paragraphs, with each paragraph responding to the corresponding
paragraph in Defendant CHA’s Counter-Complaint.
(3)
Each paragraph shall begin with the sentence “The allegations in
Defendant’s Paragraph 1 are [ADMITTED][DENIED][DENIED BECAUSE
PLAINTIFF HAS INSUFFICIENT INFORMATION],” depending on which
Plaintiff believes is appropriate.
(4)
After that initial sentence, Plaintiff must state in short and plain terms his
defense. Plaintiff shall not include lengthy excerpts from treatises, cases, or
statutes; if citing authority is necessary, Plaintiff can merely provide the
6
For instance, in the paragraph he excerpts from Cason v. Rochester Hous. Auth., 748 F. Supp.
1002 (W .D.N.Y. 1990), Mr. Felts adds em phasis to the final sentence – “Public agencies m ust be especially
vigilant to protect the disabled from all form s of discrim ination-intentional as well as benign discrim ination
caused by tile public's perception of what is ‘best’ for the disabled” – which, he says “elaborates as to the
discrim ination of this Court case.” (Pl.’s Counter-Answer, 2.) But neither party has ever argued that CHA’s
alleged discrim ination was prem ised upon what it believed to be best for Mr. Felts.
Likewise, he frequently cites and excerpts at length from articles discussing in a generic fashion the
challenges faced by disabled individuals, when the only challenges at issue in this case are whichever
particular challenges he either believes m ade him entitled to a deviation from CHA’s usual procedures or
whichever challenges are evidence of any com pensatory dam ages he m ay be claim ing as a result of CHA’s
alleged violations. (Id. at 9.)
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citation and a brief (less than one sentence) explanation of why it is relevant.
Plaintiff’s defense must not be unduly argumentative nor should it reproduce
verbatim arguments made elsewhere.
(5)
Given the length of the Counter-Complaint (four pages), Plaintiff’s Amended
Answer must be no longer than six (6) pages in length, exclusive of the
certificate of service.
This ruling is premised on the Court’s belief that there do not appear to be any
allegations or arguments made in the “Counter Answer” that are not also made elsewhere
in other pleadings, such as the Amended Complaint [Court Doc. 33]; to the extent there
are, Plaintiff will not be deemed to have waived them by the effect of this Order.
III.
PLAINTIFF’S MOTION TO ADD ADDITIONAL CLAIM AND ADDITIONAL
DEFENDANTS
A.
Background
On August 12, 2011, Plaintiff Felts filed his “Motion to Add Additional Claim and
Additional Defendants” [Court Doc. 39], asking for leave to add a new claim – a First
Amendment-based retaliatory eviction-type claim – and new defendants, including the
Board of Directors of the Cleveland Housing Authority, the Cleveland Police Department,
and Cleveland Housing Authority Director Paul Delliger in his individual capacity.
On August 16, 2011, Defendant CHA filed its “Response in Opposition to
Plaintiff/Counter-Defendant’s Motion to Add Additional Claim and Additional Defendants”
[Court Doc. 40], arguing that Plaintiff’s amendment should be denied as untimely, since the
Scheduling Order [Court Doc. 17] specifies an August 9, 2011 deadline for joining parties
and amending the pleadings and Plaintiff Felts has not shown good cause why the
Scheduling Order should be amended. (Def.’s Respon. to Pl.’s 2nd Mot. to Am. 1, 3.)
Further, Plaintiff Felts has not conducted any discovery, to the best of CHA’s knowledge,
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and thus has not been prosecuting his action and attempting to meet the Scheduling Order
deadlines diligently. (Id. at 3-4.) Finally, Defendant CHA argues that it would be unduly
prejudiced if such amendment were allowed, as this is a substantial claim – both in the
nature of the claim and in the number and type of defendants sued – premised on
information that has been at Plaintiff’s disposal throughout the pendency of this action.
Plaintiff replied to Defendant’s response in opposition on August 30, 2011 in his
“Answer to Defendant/Counter-Plaintiff’s in Opposition to Plaintiff/Counter-Defendant’s
Motion Add Additional Claim to Add Additional Claims and Additional Defendants” (sic)
[Court Doc. 43]. Plaintiff’s arguments are disjointed, argumentative, and conclusory and
relate largely to the parties’ recently-concluded mediation rather than to allegations
supporting a retaliatory eviction-type claim.
B.
Legal Standard
Although Fed. R. Civ. P. 15(a) specifies that “the court should freely give leave [to
amend] when justice so requires,” the Court may deny leave to amend for a variety of
reasons, including “undue delay, bad faith or dilatory motive on the part of the movant,
repeated failure to cure deficiencies by amendments previously allowed, undue prejudice
to the opposing party by virtue of allowance of the amendment, [and] futility of
amendment.” Foman v. Davis, 371 U.S. 178, 182 (1962).
Further, on December 7, 2010, this Court issued a Scheduling Order [Court Doc.
17] pursuant to Fed. R. Civ. P. 16(b), which requires such an order to “limit the time to join
other parties, amend the pleadings, complete discovery, and file motions.” Fed. R. Civ. P.
16(b)(1), (3)(A). The rule further provides that such an order “may be modified only for
good cause and with the judge’s consent.” Fed. R. Civ. P. 16(b)(4).
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C.
Analysis
Plaintiff’s instant Motion to Amend suffers from pleading deficiencies – both
procedural and substantive – so severe, this Court will not give him leave to so amend.
As to the substantive deficiencies, Plaintiff’s Motion to Amend, like his Reply to
Defendant’s Response in Opposition, is disjointed, argumentative, and conclusory; the
nature of the precise claim he wishes to add is not apparent, let alone how the potential
defendants, particularly the Cleveland Police Department, are alleged to have violated his
rights specifically. Further, Plaintiff does not give any reason for his delay. This Court has
already noted that Plaintiff’s May 7, 2010 “appeal” to Bradley County Circuit Court
potentially raised a First Amendment retaliation-type claim, but any such claim has not
been developed at all until the instant motion to amend, and Plaintiff does not identify any
newly-discovered information giving rise to his need to amend.
Eastern District of Tennessee Local Rule 15.1, the basis for the first of the
procedural deficiencies, requires a party who moves to amend a pleading to “attach a copy
of the proposed amended pleading to the motion,” which must “reproduce the entire
pleading as amended” and “may not incorporate any prior pleading by reference,” in part
to avoid the precise situation presented here, where a party is moving to amend a pleading
but it is not clear how that pleading would actually be amended. That rule warns parties
that “[a] failure to comply with this rule may be grounds for denial of the motion.”
Further, as Defendant CHA pointed out, the Court’s Scheduling Order set an August
9, 2011 deadline for joining parties and amending the pleadings. (Court Doc. 17, Sched.
Order ¶ 6(a).) This Scheduling Order was completed at and issued after the December 7,
2010 Scheduling Conference, during which the Court said to Plaintiff, on the topic of the
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joinder/amendment deadline:
Joinder of parties and amendments to pleadings. And that's if
you want to amend your complaint, do it as soon as you can,
Mr. Felts, but after August 9th, 2011, you will not be permitted
to do that, do you understand what I'm saying, absent
extraordinary circumstances, August 9th, 2011. But, Mr. Felts,
you need to do it as soon as possible because a lot of time can
be wasted if you don't have the proper complaint before the
court.
(Hr’g Tr. 25:14-21.)
As Defendant CHA noted, Fed. R. Civ. P. 16(b)(4) specifies that “[a] schedule may
be modified only for good cause and with the judge's consent,” and Plaintiff has not
specified any good cause giving rise to his delay in seeking to amend his complaint for a
second time. Further, almost all the reasons justifying a Court’s denial of leave to amend
– the movant’s undue delay, dilatory motive, and repeated failure to cure deficiencies, as
well as undue prejudice to the nonmovant if the amendment is allowed – is present in this
case with regard to this motion.
Therefore, because neither the nature of Plaintiff’s proposed additional claims nor
the basis of liability for the proposed additional defendants is clear; because Plaintiff has
not shown good cause and has a history of late-filing; because this Court repeatedly gave
him notice of the consequences of missing this deadline; and because he failed to attach
a copy of the proposed amended pleading, required by E.D. Tenn. LR. 15.1, this Court will
DENY Plaintiff’s Motion to Add Additional Claim and Additional Defendants [Court Doc. 39].
IV.
CONCLUSION
Accordingly, and for the reasons stated above, Plaintiff’s Motion to Remand to
Bradley County Circuit Court [Court Doc. 13] and Plaintiff’s Motion to Add Additional Claim
-27-
and Additional Defendants [Court Doc. 39] are hereby DENIED.
In accordance with and for the reasons discussed in depth in Section II(D), the Court
hereby ORDERS Defendant CHA to file a brief no later than October 31, 2011 outlining
in detail its argument for why subject matter jurisdiction exists in this case. Such brief shall
analyze, at a minimum, those issues outlined by the Court, the effect, if any, of Mr. Felts’s
subsequent filings before this Court, particularly his amendments to the “Complaint,” and
any other argument CHA deems relevant.
If Plaintiff Mr. Felts wishes to file a response to Defendant CHA’s brief, is hereby
ORDERED to do so by no later than November 15, 2011.
All arguments made by both parties SHALL be supported by clear, specific citations
to relevant authority. Given the parties’ past filings, the Court feels compelled to note that,
although extrajurisdictional precedent can be useful, in this case relevant authority will
likely comprise Tennessee statutes and cases and opinions of the federal courts of
Tennessee, including those of the United States Court of Appeals for the Sixth Circuit.
Lengthy excerpts from general treatises dealing with other states’ statutes or large portions
of legal argument citing largely cases from other Circuits and seemingly excerpted from
filings in other cases are generally not useful.
Further, for the reasons stated above and pursuant to 28 U.S.C. §§ 1446(b),
1447(b), the Court hereby ORDERS Defendant CHA to file by no later than October 31,
2011 a copy of “all process, pleadings, and orders” in that case, including those filings and
proceedings relating to Mr. Felts’s May 7, 2010 appeal to Bradley County Circuit Court.
Such filing SHALL take the form of an affidavit of counsel:
(1)
outlining, in separate, numbered paragraphs each event or filing that took
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place in those underlying state court proceedings;
(2)
attaching true and correct copies of those filings as exhibits to the affidavit;
and
(3)
authenticating those exhibits by affirming that the attached copies are true
and correct copies.
The affidavit thus constituting a complete history of the case and index of filings shall be
in chronological order and SHALL start with no event later than the “14 Day-Notice of
Lease Termination for Non-Payment of Rent” cited by CHA in its Counter-Complaint,
though in CHA’s discretion, it may start with an earlier event, including the signing of
Plaintiff’s lease. Finally, at the conclusion of the filing, counsel SHALL certify that to the
best of his or her knowledge that filing constitutes a complete record of all the filings in the
underlying case.
To the extent the parties find it necessary hereinafter to refer to a document that is
contained within this complete record of the underlying case history – including if CHA
wishes to cite such a document in its brief on subject matter jurisdiction – the Court hereby
ORDERS that they SHALL NOT attach those documents as exhibits to their pleadings, but
SHALL instead cite to the document attached as an exhibit to this complete history of the
underlying proceedings.
Further, in accordance with and for the reasons stated above, Defendant’s Motion
for Default Judgment and to Strike Answer to Counter-Complaint [Court Doc. 22] is hereby
GRANTED IN PART, as to the Motion to Strike, and DENIED IN PART, as to the Motion
for Default Judgment.
Plaintiff’s “Counter-Answer” is hereby ORDERED STRICKEN, and Plaintiff is hereby
ORDERED to file an amended answer by October 31, 2011 that adheres strictly to the
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following form:
(1)
Plaintiff Mr. Felts must respond to only those allegations in found in
Defendant CHA’s “Counter-Complaint,” which consists of paragraphs 1-19
located on pages 17-20 of Defendant CHA’s “Answer and CounterComplaint” [Court Doc. 6].
(2)
Plaintiff’s amended answer shall consist of nineteen (19) separate,
numbered paragraphs, with each paragraph responding to the corresponding
paragraph in Defendant CHA’s Counter-Complaint.
(3)
Each paragraph shall begin with the sentence “The allegations in
Defendant’s Paragraph 1 are [ADMITTED][DENIED][DENIED BECAUSE
PLAINTIFF HAS INSUFFICIENT INFORMATION],” depending on which
Plaintiff believes is appropriate.
(4)
Plaintiff must then state his defense to the allegation in short and plain
terms. It must not be argumentative nor reproduce arguments made
elsewhere and shall not include lengthy excerpts from treatises, cases, or
statutes. If reference to authority is necessary, Plaintiff shall simply cite it with
a brief (less than one sentence) explanation of its relevance.
(5)
Given the length of the Counter-Complaint (four pages), Plaintiff’s Amended
Answer must be no longer than six (6) pages in length, exclusive of the
certificate of service.
Because of the amount of time that has elapsed, Plaintiff’s history of untimely filings,
and the Court’s repeated warnings about the effects of failing to answer, Plaintiff is hereby
ON NOTICE that if he fails to file his Amended Answer by October 31, 2011, all of
Defendant’s allegations will be deemed admitted pursuant to Fed. R. Civ. P. 8(b)(6).
Further, because of the significance of the jurisdictional issue and because of the
stage of the case, all outstanding deadlines in the Court’s December 7, 2010 Scheduling
Order [Court Doc. 17] – including the deadline for dispositive motions, proposed findings
of fact and conclusions of law for a nonjury trial, motions in limine, the final pretrial
conference and the trial date – are hereby CANCELLED, to be reset in the Court’s order
on the issue of subject matter jurisdiction.
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As a final matter, in reviewing the parties’ pleadings and exhibits, the Court has
noted that each party has repeatedly revealed Mr. Felts’s “private or personal information”
in contravention of E.D. Tenn. LR. 83.3(k) by filing documents containing his Social
Security number and bank account information, among other identifiers. See, e.g. (Court
Docs. 6-1, 20-2, 31-1, & 31-7.). Both parties are hereby REMINDED that E.D. Tenn. LR.
83.3(k) requires parties “to protect the private or personal information [of individuals], such
as the identification of minors, financial account information, home addresses, and social
security numbers, to the extent practicable.”
Defendant CHA is hereby ORDERED to review its previous filings for such instances
of personal information and to submit copies of any of its filings revealing such information
with that information redacted to the Clerk’s Office on or before October 31, 2011.
The Clerk’s Office is hereby DIRECTED to redact Plaintiff’s personal information,
including his social security number and bank account number, where it appears on
Plaintiff’s pleadings at PageID #s 289, 295, 296 , 416, 422, 423, and 510. (Court Doc. 301, 5, 11, 12; Court Doc. 33-1, 4, 10, 11; Court Doc. 39-1, 1.)
SO ORDERED this 26th day of September, 2011.
/s/Harry S. Mattice, Jr.
HARRY S. MATTICE, JR.
UNITED STATES DISTRICT JUDGE
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