Anderson Lumber Company, Inc. v. Kinney et al (TV3)

Filing 7

MEMORANDUM OPINION: The Court will GRANT plaintiff's motion to remand [Doc. 3 ] and REMAND this action to the Circuit Court for Blount County, Tennessee. The Clerk of Court will be DIRECTED to CLOSE this case. Signed by Chief District Judge Thomas A Varlan on 2/2/16. (JBR) Modified to reflect c/m on 2/2/2016 (JBR).

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
ANDERSON LUMBER COMPANY, INC.,
Plaintiff,
v.
CHRIS KINNEY, et al.,
Defendants.

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No.:

3:15-CV-324-TAV-HBG

MEMORANDUM OPINION
This civil action is before the Court on plaintiff’s Motion to Remand [Doc. 3].
Defendants filed a response to the motion [Doc. 5]. After careful consideration, the
Court finds the motion to remand well taken and will remand this action to the Circuit
Court for Blount County, Tennessee.
I.

Background
Plaintiff commenced this action in the Circuit Court for Blount County,

Tennessee, on November 21, 2012, against Chris Kinney and Margaret Kinney, d/b/a
Kinney Custom Interiors [Doc. 3 pp. 7–8]. Plaintiff sued defendants for $34,765.98 on
an open account for “supplies and material” purchased from plaintiff [Id.]. On August
11, 2014, William Kinney was added as an additional defendant to the litigation [Id. at
12]. All three defendants filed answers to plaintiff’s complaint and counterclaims [Doc.
1-2 pp. 56–82].

The counterclaims are: frivolous lawsuit, duress and coercion,

harassment, intentional infliction of emotional distress, aggravated perjury, falsifying

records, and defamation [See id.]. All parties are citizens and residents of Tennessee
[Doc. 1 p. 2].
On December 2, 2014, the Blount County trial court referred the case to a Special
Master [Id. at 86], and on April 30, 2015, the Special Master filed his report finding that
the correct amount owed by defendants to plaintiff was $32,912.95 [Doc. 3 p. 15–19].
Defendants then filed a petition for a writ of mandamus in the Court of Appeals of
Tennessee, which was denied on June 22, 2015 [Doc. 1-2 p. 89]. On July 28, 2015,
defendants filed the notice of removal in this Court [Doc.1].
Plaintiff filed a notice to remand asserting that the Court does not have subject
matter jurisdiction, that the notice of removal was not timely field, and that defendants
have waived their right to removal [Doc. 3]. Further, plaintiff requests costs, expenses,
and attorney fees.
II.

Removal1
Defendants assert that this Court has proper jurisdiction over this case, pursuant to

the following statutory authorities: 15 U.S.C. § 1692k(d) and 28 U.S.C. §§ 1443(1),
1446(3), 1331, 1367.
As a general matter, “an action may be removed from state court to federal court
only if a federal district court would have original jurisdiction over the claim in suit.”
Jefferson Cnty. v Acker, 527 U.S. 423, 430 (1999) (citing 28 U.S.C. § 1441(a)). A

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Because the Court finds that there is no basis for subject matter jurisdiction, the Court
declines to address whether the notice of removal was timely filed and whether defendants
waived their right to removal.
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federal court has original subject matter jurisdiction over two types of actions. The first
type involves those actions raising a federal question. 28 U.S.C. § 1331. The second type
involves those actions where there is diversity of citizenship and an amount in
controversy greater than $75,000, excluding costs and fees. 28 U.S.C. § 1332. The party
removing an action to federal court has the burden of showing that the federal
jurisdictional requirements are satisfied. Gafford v. Gen. Elec. Co., 997 F.2d 150, 158
(6th Cir. 1993). If the court determines that the removing party has met this burden, then
the court should not remand the case back to state court.
Federal question jurisdiction exists for “all civil actions arising under the
Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. “To remove a case
as one falling within federal-question jurisdiction, the federal question ordinarily must
appear on the face of a properly pleaded complaint.” Acker, 527 U.S. at 430–31 (citation
omitted).
In this case, plaintiff’s complaint filed in the Circuit Court for Blount County,
Tennessee, did not contain any federal-law claims.

Further, none of defendants’

counterclaims arise under federal law. Rather, they are all state-law claims.
As a basis for jurisdiction, defendants appear to be relying on the “ongoing civil
rights violations” first discussed in defendants’ petition for writ of mandamus [Doc. 1-2
pp. 96–126]. The Tennessee Court of Appeals denied the petition because the court lacks
jurisdiction over original proceedings and defendants were alleging new claims against
plaintiff in the petition [Id. at 89]. Thus, while defendants are asserting that plaintiff
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violated federal law, defendants have not actually filed a claim arising under federal law.
Allegations made in the petition for writ of mandamus and in the notice of removal [Doc.
1] do not constitute claims. Consequently, as the only claims before the Court are statelaw claims, the Court lacks federal-question jurisdiction.
The Court also lacks diversity jurisdiction because there is no dispute that all
parties to this suit are citizens and residents of Tennessee [Doc. 1 p. 2].
Defendants assert that the Court has jurisdiction pursuant to a number of other
statutes as well. First, defendants argue that the Court has jurisdiction pursuant to 15
U.S.C. § 1692k(d), a jurisdictional provision of the Fair Debt Collection Practices Act.
Defendants have not filed a claim under the Fair Debt Collection Practices Act, and
therefore this jurisdictional provision does not apply.
Another statute defendants contend confers jurisdiction to this Court is 28 U.S.C.
§ 1443(1). But for § 1443(1) to apply, there must be a right denied that arises under a
federal law that “provides for specific civil rights stated in terms of racial equality.”
Tenn. Dept. of Children’s Servs. v. Winesburgh, 614 F. App’x 277, 280 (6th Cir. 2015)
(emphasis omitted) (citing Conrad v. Robinson, 871 F.2d 612, 614–15 (6th Cir. 1989)).
Defendants have not alleged a civil rights claim stated in terms of racial equality, and
consequently, this jurisdictional provision does not apply.
Defendants further assert jurisdiction based on 28 U.S.C. § 1446(3), which the
Court construes as defendants referring to 28 U.S.C. § 1446(b)(3). This provision,

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however, only describes the timeliness of the filing of notice of removal, and does not
describe a basis of jurisdiction.
Defendants allege jurisdiction based on 28 U.S.C. § 1367. Section 1367 describes
supplemental jurisdiction, which does not apply unless the Court first has original
jurisdiction over a claim.
In sum, there is no basis for original jurisdiction over this matter and the case
should be remanded to state court.
III.

Costs, Expenses, and Attorney Fees
Having determined this case should be remanded, the Court must examine

plaintiff’s request for attorney fees. Section 1447(c) provides that “[a]n order remanding
the case may require payment of just costs and any actual expenses, including attorney
fees, incurred as a result of the removal.” 28 U.S.C. § 1447(c). An award of fees is
appropriate only where “the removing party lacked an objectively reasonable basis for
seeking removal.” Martin v. Franklin Capital Corp., 546 U.S. 132, 141 (2005); Paul v.
Kaiser Found. Health Plan of Ohio, 701 F.3d 514, 523 (6th Cir. 2012) (denying request
for fees and costs where “question of complete preemption . . . is a close one”).
The Court does not find it appropriate to award fees in this case due to defendants’
pro se status. See Heynen v. Give Life Found., No. 3:08-CV-253, 2008 WL 4372969, at
*2 (E.D. Tenn. Sept. 22, 2008). In Heynen, this Court refused to award fees and costs
under § 1447(c) where the defendant was pro se and it was “apparent from his response
to plaintiff’s Motion to Remand that he attempted to read the statutes and simply lack[ed]
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sufficient legal knowledge to understand the applicable statutory provisions, case law,
and rules.” Id. The Court finds that the circumstances in this case are analogous to the
situation in Heynen, and the Court will not penalize the pro se defendants for having
attempted removal of this case. Accordingly, the Court will not award fees and costs
associated with plaintiff’s defense against the removal of this action.
IV.

Conclusion
For the reasons set forth herein, the Court will GRANT plaintiff’s motion to

remand [Doc. 3] and REMAND this action to the Circuit Court for Blount County,
Tennessee. The Clerk of Court will be DIRECTED to CLOSE this case.
ORDER ACCORDINGLY.

s/ Thomas A. Varlan
CHIEF UNITED STATES DISTRICT JUDGE

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