Mullen v. La Vergne, Tennessee, City of
MEMORANDUM OPINION OF THE COURT. Signed by Magistrate Judge Joe Brown on 3/9/2017. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(eh)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
CITY OF LaVERGNE, TENNESSEE,
Plaintiff brought this action originally in the Chancery Court for Rutherford County on May
28, 2016 alleging violations of the Fourteenth Amendment, the Tennessee Human Rights Act
(THRA), Tenn. Code Ann. §§ 4-21-101 et sec, and the Tennessee Public Protection Act (TPPA),
Tenn. Code Ann. §§ 50-1-304 et seq. (Doc. 1-2) Defendant filed a notice of removal under 28
U.S.C. §§ 1441(a), (c) and 1443 on May 25, 2015. (Doc. 1) Thereafter, this case was transferred
to the undersigned with the consent of the parties for all proceedings and decision in this action.
Presently pending before the court is defendant’s motion for partial summary judgment
seeking to dismiss plaintiff’s claims under THRA and TPPA on statute-of-limitations grounds.
(Doc. 11) Plaintiff responded in opposition to defendant’s motion on August 11, 2016 (Doc. 23),
and plaintiff replied on August 25, 2016 (Doc. 28). Defendant’s motion for partial summary
judgment is now properly before the court. However, in reviewing the record in response to
defendant’s motion for partial summary judgment, the undersigned has determined that this action
should be remanded to the Chancery Court for Rutherford County for want of subject matter
“Federal courts are courts of limited jurisdiction and the law ‘presume[s] that a cause lies
outside this limited jurisdiction.’” Vander Boegh v. Energy Solutions, Inc., 772 F.3d 1056, 1064 (6th
Cir. 2014)(quoting Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)). “The
burden of establishing the contrary rests upon the party asserting jurisdiction.” Vander Boegh, 772
F.3d at 1064 (quoting Kokkonen, 511 U.S. at 377). “Because subject-matter jurisdiction is ‘an
[Article III] as well as a statutory requirement . . . no action of the parties can confer subject-matter
jurisdiction upon a federal court.’” Vander Boegh, 772 F.3d at 1064 (quoting Ins. Corp. of Ireland,
Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702 (1982)). “‘Subject-matter jurisdiction
can never be waived or forfeited,’ and courts are obligated to consider sua sponte whether they have
such jurisdiction.” Vander Boegh, 772 F.3d at 1064 (quoting Gonzalez v. Thaler, 565 U.S. 134, 141
More particularly, “a federal court always has jurisdiction to determine its own
jurisdiction.” United States v. Ruiz, 536 U.S. 622, 628 (2002).
The foregoing applies to removal actions. Although remand of a “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,” “[i]f at any time before final judgment it appears that the district court lacks
subject matter jurisdiction, [then] the case shall be remanded.” 28 U.S.C. § 1447(c); see also Fed.
R. Civ. P. 12(h)(3)(“If the court determines at any time that it lacks subject matter jurisdiction, the
court must dismiss the action.”). Even where no challenge to jurisdiction has been made by a
litigant, the question should be raised by the Court sua sponte. See Rote v. Zel Custom Mfg. LLC,
816 F.3d 383, 392 (6th Cir.), cert. denied sub nomine, Direccion General de Fabricaciones Militares
v. Rote, 137 S. Ct. 199 (2016). The Court has a responsibility to make an independent subject matter
jurisdiction determination, rather than relying solely on a conclusory assertion of the defendant. See
McNutt v. Gen. Motors Acceptance Corp. of Indiana, 298 U.S. 178, 184 (1936). The “removal
statutes are strictly construed against removal, such that doubt should be resolved in favor of
remand.” Lexington-Fayette Urban Cty. Gov’t Civil Serv. Comm’n v. Overstreet, 115 Fed.Appx.
813, 816 (6th Cir. 2004). It is defendant’s burden to provide the Court with “competent proof” of
jurisdiction. McNutt, 298 U.S. at 189; Ahearn, et al. v. Charter Twp. of Bloomfield, 100 F.3d 451,
453-54 (6th Cir. 1996). The court is not required to – and may not – engage in speculation or
guesswork to determine its jurisdiction. See Strebler v. Morgan Stanley & Co., Inc., 2014 WL
4545932 *5 (N.D. Ohio, Sept. 12, 2014). “[B]ecause lack of jurisdiction would make any decree
in the case void and the continuation of the litigation in federal court futile, the removal statute
should be strictly construed and all doubts resolved in favor of remand.” Eastman v. Marine Mech.
Corp., 438 F.3d 544, 549-50 (6th Cir. 2006)(citations omitted).
The petition for removal asserts that “[t]he defendants, acting by and through counsel,
pursuant to 28 U.S.C. § 1441(a), 28 U.S.C. § 1441(c), and 28 U.S.C. § 1443 states the following .
. . .” Title 28 U.S.C. § 1446 requires that a defendant “desiring to remove any civil action from state
court . . . file a notice of removal . . . .containing a short and plain statement of the grounds for
removal, together with a copy of all process, pleadings, and orders served upon such defendant or
defendants in such action.” Defendant’s petition for removal does not contain “a short plain
statement of the grounds for removal.” Because the petition for removal fails to comply with §
1446, the court is unable to determine what the basis for jurisdiction may be from defendant’s “by
and through counsel” statement above.
In addition to the foregoing, § 1443 provides the following in civil rights cases such as the
one before the court:
Any of the following civil actions . . . commenced in a State court
may be removed by the defendant to the district court of the United
States for the district and division embracing the place wherein it is
Against any person who is denied or cannot enforce in the
courts of such State a right under any law providing for the
equal civil rights of citizens of the United States, or of all
persons within thereof . . . .
For any act under the color of authority derived from any law
providing for equal rights, or for refusing to do any act on the
ground that it would be inconsistent with such law.
Section 1443(1) applies only when a defendant demonstrates two things: first, “that the right
allegedly denied the removal petitioner arises under federal law providing for specific civil rights
stated in terms of racial equality”; and second, that “the removal petitioner is denied or cannot
enforce specific federal rights in State Courts.” Johnson v. Mississippi, 421 U.S. 213, 219 (1975);
see also Georgia v. Rachel, 384 U.S. 780, 792, 803 (1966); City of Greenwood, Miss. v. Peacock,
384 U.S. 808, 825 (1966). Section 1443(2) confers a privilege of removal only upon federal
officers, agents, and those authorized to act with or for them in affirmatively executing duties under
any federal law providing for equal civil rights. City of Greenwood, Miss., 384 U.S. at 824.
Because defendant fails to assert standing under either part of § 1443(1), and because defendant
clearly is not a federal officer, agent, or one authorized to act on behalf of a federal officer or agent,
removal under § 1443 was not proper and, as such, jurisdiction cannot be based on defendant’s
reference to § 1443.
Defendant’s petition for removal does provide the following jurisdictional statement: “This
Court has jurisdiction over the above-styled cause of action pursuant to 28 U.S.C. §§ 1331 and
1367.” Section 1331 provides that “[t]he district courts shall have original jurisdiction of all civil
actions arising under the Constitution, laws, or treaties of the United States,” and § 1367 provides
for “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 . . . .” Once again,
however, there is nothing in defendant’s reference to these two general jurisdiction statutes that
establishes the grounds for original jurisdiction in this case under § 1331 and, by inference, § 1367.
Although § 1367 applies to mixed federal-state claims before district courts, the question here is:
“What is the basis for jurisdiction under § 1331 in this specific case, i.e., what is the federal question
With only conclusory and illusory suggestions of jurisdiction in the petition for removal,
the undersigned turns to the amended complaint itself which defendant has provided. (Doc. 1-2)
As previously established, the federal removal statute – § 1441– permits a defendant to remove a
civil action from state court to federal court if the plaintiff could have brought the matter in the
federal district court. A Forever Recovery, Inc. v. Twp. of Pennfield, 606 Fed.Appx. 279, 280 (6th
Cir. 2015). In determining whether a complaint arises under federal law, courts apply the “wellpleaded complaint” rule. Loftis v. United Parcel Serv., Inc., 342 F.3d 509, 514-15 (6th Cir. 2003).
Federal question jurisdiction arises where a “‘well-pleaded complaint establishes either that federal
law creates the cause of action or that the plaintiff’s right to relief necessarily depends on resolution
of a substantial question of federal law.’” Palkow v. CSX Transp. Inc., 431 F.3d 543, 552 (6th Cir.
2005)(quoting Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 27-28 (1983)).
“[F]ederal jurisdiction exists only when a federal question is presented on the face of the plaintiff’s
properly pleaded complaint.” Rivet v. Regions Bank of Louisiana, 522 U.S. 470, 475 (1998)(quoting
Caterpillar v. Williams, 482 U.S. 386, 392 (1987)). The well-pleaded complaint rule recognizes that
the plaintiff is the master of his complaint. Loftis, 342 F.3d at 515. Federal jurisdiction “exists
when ‘a well-pleaded complaint establishes either that federal law creates the cause of action of that
the plaintiff’s right to relief necessarily depends on resolution of a substantial question of federal
law.’” Borden v. Allstate Ins. Co., 589 F.3d 168, 172 (5th Cir. 2009)(quoting Franchise Tax Bd., 463
U.S. at 27-28). A mere incidental reference to a violation of federal law or the United States
Constitution does not convert a state complaint into a federal cause of action if the federal claim is
not a necessary element of the sate law claim. Diaz v. Sheppard, 85 F.3d 1502, 1505 (11th Cir.
Plaintiff asserts the following in the jurisdiction and venue section of his amended complaint:
“This action is filed pursuant to . . . the United States Constitution Amendment XIV . . . .” (Doc.
1-2, ¶ 3, p. 1) Plaintiff alleges two counts of violations under the Fourteenth Amendment. (Doc.
1-2, pp. 7-10) Plaintiff asserts the following in count I:
Plaintiff was placed on paid administrative leave after one of these
internal affairs investigations previously referenced in November
2014. Plaintiff was not provided a definitive reason for his
suspension in writing nor was he given the opportunity to address the
allegations and put forth a defense, clearly in violation of the due
process clause of the United States Constitution Amendment XIV.
(Doc. 1-2, ¶ 40, p. 8) Plaintiff asserts the following in count II:
Plaintiff was placed on leave prior to Thanksgiving of November
2014 with LaVergne. It is unfathomable that any investigation
LaVergne would have had on the Plaintiff would have continued
through April 2015. Further, Plaintiff was not advised in writing why
he was on paid leave nor was he provided with an opportunity to
defend himself or clear his name. As a result, the Police Department
of the City of LaVergne has used this to further restrict the liberty
interest of the Plaintiff provided by the United States Constitution,
Amendment XIV, by sharing information in a false light as to why
plaintiff was no longer employed by the City of LaVergne.
(Doc. 1-2, ¶ 53, p. 10) In his demand for relief, plaintiff asserts only that he “have all remedies
available to him allowed by law for the violations of his Due Process Rights.” (Doc. 1-2, ¶ 6, p. 10)
It is axiomatic that plaintiff has rights under the Fourteenth Amendment. However, the
Fourteenth Amendment does not confer a cause of action in and of itself, and plaintiff fails to refer
to or even suggest any federal law pursuant to which a cause of action might arise. As previously
noted, plaintiff’s incidental reference to the Fourteenth Amendment does not establish a violation
of federal law.
Neither does plaintiff couch his Fourteenth Amendment claims in terms of any state law or
statute, city ordnance or published policy with respect to which the alleged acts or omissions of
defendant violated his rights under the Fourteenth Amendment. Plaintiff’s specific allegations in
counts I and II are that: 1) the Chief of Police used internal affairs investigations (IA) to pressure
officers into silence; 2) the results of IA investigations “[o]ften . . . [we]re not provided to those
investigated, presumably to keep the officer on edge and under control”; 3) he missed overtime work
while on paid administrative leave; 4) he worried about his job, his future, and his family while on
paid administrative leave; 5) his suspension was the subject of a televised news story; 6) there were
“many” IA investigations following which no punitive action was taken even where fault was found;
7) he was not permitted to rescind his resignation, although “other officers” were permitted to
rescind theirs; 8) his transfers during his career were for punitive reasons and to embarrass him; 9)
transfers since 2004 affected his family and personal life and occurred “without prior warning or
opportunity for redress”; 10) unnamed and unidentified high ranking members of the LaVergne
Police department prevented him from obtaining other law enforcement work, although it is against
the “policy of the City of LaVergne to provide information to prospective employers other than dates
of employment.” (Doc. 1-2, ¶¶ 39, 41-52, pp. 8-10)
As shown above, plaintiff does not allege and show that his Fourteenth Amendment rights
were violated pursuant to any alleged act or omissions attributable to defendant under any state or
city law, statute, ordnance or published policy. Nor, as noted previously, may the court engage in
speculation or guesswork to determine whether the allegations enumerated above convey jurisdiction
on the district court.
For the reasons explained above, the district court lacks subject matter jurisdiction in this
matter. Consequently, this case will be REMANDED to the Chancery Court for Rutherford County.
An appropriate order will be entered.
s/ Joe B. Brown
Joe B. Brown
United States Magistrate Judge
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?