Murray et al v. Hamby et al (TV1)

Filing 12

Memorandum Opinion. Because the plaintiff lacks the authority to remove this action under 28 U.S.C. § 1446, the plaintiff's motion for permission to remove their case, [R. 3], is DENIED, and the defendants' motions to remand, [R. 4, 7], are GRANTED. This action will be Remanded to the Circuit Court for Roane County, Tennessee. Signed by District Judge Pamela L Reeves on 8/13/14. (JBR) (c/m) Modified text on 8/13/2014 (JBR).

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE

Bobby D. Murray and
Loretta Murray,
Plaintiffs,
v.
Tom Hamby, Tom McFarland,
Henson and Elaine Stafford, and
Roane County, Tennessee,
Defendants.

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No.:

3:14-CV-13-PLR-CCS

Memorandum Opinion
On June 12, 2013, Mr. and Ms. Murray filed a lawsuit in the Circuit Court for Roane
County, Tennessee against the defendants alleging a civil conspiracy in relation to the
installation of drainage culverts on the Stafford’s property. According to the plaintiffs, the
installation of the culverts on the Stafford’s property caused a great deal of water to run onto the
plaintiff’s property causing damage. The plaintiffs assert claims for property damage, civil
conspiracy, violations of the Tennessee Water Quality Control Act, Tenn. Code Ann. § 69-3-101
et. seq., the Tennessee Governmental Tort Liability Act, Tenn. Code Ann. § 29-20-101 et. seq.
The Circuit Court for Roane County eventually dismissed all the plaintiffs’ claims except those
against Mr. and Ms. Stafford for property damage. [R. 7-3, 7-4, 7-5, and 7-6].
The plaintiffs moved this Court for permission to remove their case January 13, 2014,
arguing they cannot receive a fair trial in Roane County, that the defendants used the mail to
complete their conspiracy, and the plaintiffs can be tried under 18 U.S.C.§ 242. [R. 3]. The
defendants have moved to remand or dismiss based on a lack of subject matter jurisdiction. [R. 4,

7].
The party seeking to litigate in federal court bears the burden of establishing the existence
of federal subject matter jurisdiction. McNutt v. General Motors Acceptance Corp. of Indiana,
298 U.S. 178 (1936). Title 28 U.S.C. § 1446 authorizes removal only by state court defendants.
While a plaintiff has the prerogative to choose the initial form for a suit, once it is filed in state
court, there is no valid authority providing a plaintiff the ability to remove the case to federal
court. To the contrary, substantial precedents explicitly deny that power to the original plaintiff
in an action. See, e.g. Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100 (1941); FDIC v. Loyd,
955 F.2d 316 (5th Cir. 1992); H&R Block, Ltd. v. Housden, 24 F.Supp.2d 703 (E.D. Tex. 1998).
Because the plaintiff lacks the authority to remove this action under 28 U.S.C. § 1446,
the plaintiff’s motion for permission to remove their case, [R. 3], is DENIED, and the
defendants’ motions to remand, [R. 4, 7], are GRANTED. This action will be Remanded to the
Circuit Court for Roane County, Tennessee.
It is so ORDERED.
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UNITED STATES DISTRICT JUDGE