Calvary SPV 1, LLC v. Evans

Filing 9

REPORT AND RECOMMENDATION: The Magistrate Judge recommends that this case be REMANDED for lack of federal subject matter jurisdiction. Signed by Magistrate Judge Joe Brown on 12/5/2013. (xc:Pro se party by regular and certified mail.)(DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(hb)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
CALVARY SPV I, LLC,

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Plaintiff
v.
WALLACE EVANS,
Defendant
TO:

No. 3:13-1235
Judge Trauger/Brown

THE HONORABLE ALETA A. TRAUGER
REPORT AND RECOMMENDATION
For

the

reasons

stated

below,

the

Magistrate

Judge

recommends that this case be remanded to the General Sessions Court
of

Davidson

County,

Tennessee,

from

which

it

was

improperly

removed.
BACKGROUND
The Defendant in this matter, Wallace C. Evans, acting
pro se, filed a notice of removal of this case from General
Sessions Court for Davidson County on November 8, 2013 (Docket
Entry 1). The matter was referred to the undersigned for case
management and for a report and recommendation on any dispositive
matter (Docket Entry 3).
After reviewing the matter, the undersigned had concerns
about the propriety of the removal, and the jurisdiction of this
Court. The Defendant was therefore given notice of the Magistrate
Judge’s concerns (Docket Entry 5) and was allowed the opportunity
to show why removal was appropriate.

The

Defendant

filed

a

response

(Docket

Entry

8)

essentially stating that the case had been pending in general
sessions court for over a year and that he did not believe that the
general sessions court had jurisdiction, and that since the matter
involved a bank chartered under the Federal Bank Holding Company
Act of 1956 it was subject to federal banking law and the case
would be better served in the United States District Court.
LEGAL DISCUSSION
As an initial matter, the Magistrate Judge notes that
although the Defendant used a fill-in-the-blanks complaint form, at
the Defendant’s specific request and direction, the clerk filed it
as a removal notice. The documents attached to his removal showed
that this complaint was originally filed against Mr. Evans by
Calvary SEV I, LLC as an assignee of the Bank of America FIA Card
Services, N.A., on September 24, 2012.

Mr. Evans filed an answer

and counter-claim on November 29, 2012. He filed a motion to compel
the

Plaintiff

original

loan,

to
on

produce
July

documents,

30,

2013.

which

The

would

motion

to

include

the

produce

was

apparently served on July 18, 2013, and granted by the general
sessions judge on July 18, 2013 (Docket Entry 1-1, p. 9-10).
It appears that the matter was later reset for trial on
August 15, 2013, at 9:00 a.m. (Docket Entry 1-1, p. 12).
Federal courts are courts of limited jurisdiction. Title
28 U.S.C. § 1446 governs the procedure for removal of a civil
action. Subsection (b)(1) clearly states that “[t]he notice of

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removal of the civil action or proceeding shall be filed within 30
days after receipt by the defendant through service or otherwise of
a copy of the initial pleading . . .” In this case the record
shows that Mr. Evans was served on October 9, 2012, and filed an
answer and counter-claim on November 29, 2012. His efforts to
remove the case are therefore clearly outside the 30-day limit.
In the original removal petition the Defendant did not
state the basis for removal, whether he was proceeding under
1441(a), a civil action he brought in state court, of which the
district courts of the United States have original jurisdiction, or
1441(b), removal based on diversity of citizenship.
Mr. Evans has no basis for removal under diversity, as
the amount in question is less than $25,000. The limit of the
general sessions court jurisdiction is also only $25,000

The

complaint itself, although quite brief in accordance with general
sessions pleadings, does not appear to raise a federal question.
The mere fact that the Plaintiff is a bank does not establish a
federal question.
Mr. Evans’ response that the matter involves a bank subject to
the Federal Bank Holding Company Act and subject to federal banking
law and thus gives the court original federal jurisdiction, is a
pure conclusion with no basis that the Magistrate Judge can tell in
fact or law.
Regardless, even if there were original jurisdiction in
this case, the Defendant has waited far beyond the 30 days allowed
by law to remove this case.

28 U.S.C. § 1447(c) provides that
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“[i]f at any time before final judgment it appears that the
district court lacks subject matter jurisdiction, the case shall be
remanded.” In this case it appears that the court lacks subject
matter jurisdiction and, therefore, lacks jurisdiction to proceed
further, except to remand this case.

Chase Manhattan Mortg. Corp.

v. Smith, 507 F.3d 910 (6th Cir. 2007). As pointed out in that case,
there is no reasonable basis for federal jurisdiction. The amount
in

controversy

is

less

than

$75,000,

therefore,

diversity

jurisdiction cannot apply and the complaint itself does not, on its
face, raise federal questions.
For some reason the Plaintiff in the general sessions
case has not raised any issue about the removal. Perhaps it may be
because the Magistrate Judge initially raised the issue himself.
If this were simply a case where there was no objection
that the removal was beyond 30 days, there is authority that a
plaintiff

who

fails

to

raise

the

issue

waives

the

30-day

requirement. See City of Cleveland v. Deutsche Bank Trust Co., 571
F.Supp. 2d 807, 812-14 (N.D. OH 2008) affirmed by City of Cleveland
v. Ameriquest Mortg. Sec., Inc., 615 F.3d 496, 500 (6th Cir. 2012).
Unfortunately for the Defendant’s removal efforts, it is
apparent that no basis for removal existed at the time of removal.
There was neither diversity or independent federal jurisdiction in
this matter, and jurisdiction may not be waived, but can be raised
at any point and may be done by the court sue sponte, provided the

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removing party is given notice and an opportunity to respond to
such a suggestion.
In

this

case

the

removing

Defendant

was

given

an

opportunity to respond and he has failed to show that any federal
jurisdiction existed in this case.
In view of the lack of any motion by the original
plaintiff in this matter and in view of the pro se status of the
Defendant, the Magistrate Judge does not recommend any sanctions
against the Defendant for this improper removal.
RECOMMENDATION
For

the

reasons

stated

above,

the

Magistrate

Judge

recommends that this case be REMANDED for lack of federal subject
matter jurisdiction.
Under Rule 72(b) of the Federal Rules of Civil Procedure,
any

party

has

14

days

from

receipt

of

this

Report

and

Recommendation in which to file any written objections to this
Recommendation with the District Court.

Any party opposing said

objections shall have 14 days from receipt of any objections filed
in this Report in which to file any responses to said objections.
Failure to file specific objections within 14 days of receipt of
this Report and Recommendation can constitute a waiver of further

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appeal of this Recommendation.

Thomas v. Arn, 474 U.S. 140 106 S.

Ct. 466, 88 L.Ed.2d 435 (1985), Reh’g denied, 474 U.S. 1111 (1986).
ENTER this 5th day of December, 2013.
/s/
Joe B. Brown
JOE B. BROWN
United States Magistrate Judge

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