Davis v. Franklin American Mortgage Company et al

Filing 35

REPORT AND RECOMMENDATION: For the foregoing reasons, the undersigned recommends that Plaintiff's "Motion to Recind Notice and Order of Removal" (Docket No. 22) be DENIED; that Chase's "Motion to Dismiss" (Docket No. 4) be GRANTED; and that all other pending motions (Docket Nos. 14 and 31) be terminated as moot. Signed by Magistrate Judge Jeffery S. Frensley on 7/26/17. (xc:Pro se party by regular mail. ) (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(af)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
SAMUEL DAVIS,

)
)
Plaintiff,
)
)
v.
)
)
FRANKLIN AMERICAN MORTGAGE
)
COMPANY and J.P. MORGAN CHASE, N.A., )
)
Defendants.
)

Case No. 3:16-cv-02819
Judge Crenshaw/Frensley

REPORT AND RECOMMENDATION
This matter is before the Court upon several motions by the Parties. Defendant J.P.
Morgan Chase, N.A. (“Chase”) has filed a Motion to Dismiss and Supporting Memorandum of
Law. Docket Nos. 4, 5. Although the pro se Plaintiff did not respond to that Motion within the
time allotted for response, Plaintiff has subsequently filed a document that appears to respond to
Chase’s Motion: “Memorandum in Support of Plaintiff’s Motion in Opposition.” Docket No. 30.
Chase has also filed a “Motion to Dismiss for Failure to Prosecute and Incorporated
Memorandum of Law.” Docket No. 14. Plaintiff has filed a Response in Opposition. Docket
No. 16. Chase has filed a Reply. Docket No. 19. Plaintiff has filed a document that appears to
be related to Chase’s Motion to Dismiss for Failure to Prosecute: “Plaintiff’s Reply to Chase
Bank’s Response.” Docket No. 29.
Plaintiff has filed a “Motion to Recind [sic] Notice and Order of Removal.” Docket No.
22. Explaining that this document appears to seek remand to state court, Chase filed a
“Response in Opposition to Motion to Remand.” Docket No. 24. Plaintiff then filed “Plaintiff’s
Reply to Defendant Chase Bank’s Response [RE24] to Motion Concerning Removal
Jurisdiction.” Docket No. 27.

Defendant Franklin American Mortgage Company (“FAMC”) has filed a Motion to
Dismiss pursuant to Fed. R. Civ. P. 12(b)(6), in which it specifically joins in the Motions to
Dismiss filed by Chase. Docket No. 31. FAMC has also filed a Supporting Memorandum of
Law. Docket No. 32. Apparently in response, Plaintiff has filed a “Memorandum in Support of
Plaintiff’s Motion in Opposition to Defendant’s Motion to Dismiss as Time Barred” (Docket No.
33) and a “Motion in Opposition to Defendant Franklin American’s Motion to Dismiss as Time
Barred” (Docket No. 34).
I. Background
Plaintiff filed this cause in Davidson County Chancery Court on September 30, 2016.
Docket 1-2. Chase removed it to this Court on October 31, 2016, citing 28 U.S.C. § 1331
(diversity jurisdiction) and § 1332 (federal question jurisdiction). Docket No. 1 (Notice of
Removal). Specifically, Chase states that it is a citizen of Ohio, and that while Plaintiff is a
citizen of Tennessee and FAMC is “a Tennessee corporation with its principal office in
Tennessee,” FAMC’s citizenship “may be disregarded because it has been fraudulently joined by
Plaintiff in effort [sic] to defeat diversity jurisdiction.” Id. at 3. Chase argues that Plaintiff’s
claim against FAMC is one of fraud, that Plaintiff’s Complaint does not properly plead fraud,
and that Plaintiff therefore “fails to plead a colorable claim against [FAMC] under Tennessee
law, and [FAMC’s] citizenship may be disregard [sic] for purposes of diversity jurisdiction.” Id.
at 3-4. Chase further contends that the Court has federal question jurisdiction because Plaintiff’s
claims “appear to be based on issues related to the FHA insured mortgage loan program.
Plaintiff must necessarily prove a violation of federal law in order to prevail on his claims.” Id.
at 5.

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Plaintiff did not respond to the assertion of diversity in the Notice of Removal until filing
his “Motion to Recind [sic] Notice and Order of Removal” on February 21, 2017. Docket No.
22. In this document, Plaintiff maintains that:
Plaintiff did not add [FAMC] fraudulently nor as an attempt to
defeat diversity jurisdiction. Plaintiff actually believes, as his
complaint alleges, that but for the fraudulent acts of [FAMC] the
chain of events that resulted in [Chase] claims upon his real
property would have never begun.
Plaintiff further asserts that he seeks no monetary damages from
Chase. From it he seeks only injunctive relief and for such time as
to fully litigate his claims against [FAMC], from which any and all
monetary damages are sought.
Plaintiff finally asserts that he need not prove that federal law
violation(s) are at issue in this cause. Proving that [FAMC]
committed fraud in this cause is a matter of Tennessee [sic] and
does not raise a “federal question” as contemplated by 28 U.S.C. §
1332 and as conceded by Chase in its Notice of Removal ¶10.
...
Plaintiff now sues [FAMC], not to defeat the diversity requirement
pursuant to the F.R.C.P, [sic] but because it was the fraudulent acts
of [FAMC] that are the beginnings of the Daisy Chain that
introduces to defendant Chase and that has resulted in the
outcomes plaintiff has faced hear [sic] to date. In fact [FAMC] is
an essential actor in this melodrama such the [sic] compulsory
joinder provisions of the F.R.C.P. should apply here.
Id. at 1-2.
Chase responds that “Plaintiff’s Motion to Remand is, in reality, a desperate effort to
evade dismissal,” and reiterates its arguments regarding federal question and diversity
jurisdiction. Docket No. 24, p. 1-4.

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II. Law and Analysis
A. Applicable Law of Jurisdiction and Fraudulent Joinder
This Court has original jurisdiction over all civil actions in which the matter in
controversy exceeds $75,000 and is between citizens of different states. 28 U.S.C. § 1332(a)(1).
Diversity jurisdiction requires complete diversity: the citizenship of each plaintiff must be
diverse from the citizenship of each defendant. Caterpillar Inc. v. Lewis, 519 U.S. 61, 68, 117 S.
Ct. 467 (1996); Coyne ex rel. Ohio v. American Tobacco Co., 183 F. 3d 488, 492 (6th Cir. 1999).
The party “seeking to bring a case into federal court carries the burden of establishing diversity
jurisdiction.” Coyne, 183 F. 3d at 493 (internal quotation marks and citation omitted). Further,
the issue of subject matter jurisdiction may be raised “at any time, by any party or even sua
sponte by the court itself.” Franzel v. Kerr Mfg. Co., 959 F. 2d 628, 629 (6th Cir. 1992).
“Fraudulent joinder is a judicially created doctrine that provides a limited exception to
the requirement of complete diversity.” Garner v. SDH Servs. East, LLC, 55 F. Supp. 3d 1016,
1021 (M.D. Tenn. 2014). Under this doctrine, the court must determine whether the plaintiff has
“at least a colorable cause of action under state law against the non-diverse defendant.” Id.,
citing Jerome-Duncan, Inc. v. Auto-By-Tel., L.L.C., 176 F.3d 904, 907 (6th Cir. 1999). Thus,
this Court must look to Tennessee law to determine whether FAMC is a proper defendant, or
whether, as argued by Chase, it was fraudulently joined. “The non-moving party’s actual motive
for joining a non-diverse party is immaterial to the court’s determination regarding fraudulent
joinder.” Id. “Therefore, the question is whether there is arguably a reasonable basis for
predicting that the state law might impose liability on the facts involved.” Alexander v. Elec.
Data Sys. Corp., 13 F. 3d 940, 949 (6th Cir. 1994) (citation and internal quotation marks
omitted.) In making this determination, any disputed questions of fact and ambiguities in the
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controlling state law must be resolved in favor of the non-removing party. Id.; accord Walker v.
Philip Morris USA, Inc., 443 F. App’x 946, 951-52 (6th Cir. 2011).
The analysis that must ensue is complex:
As at least some district courts within this circuit have observed,
applying the fraudulent joinder standard can be a difficult inquiry,
because the Sixth Circuit’s “reasonable basis” and “colorable cause
of action” standard leaves room for debate as to how deferential a
court should be in evaluating the sufficiency of the plaintiff’s
claims for fraudulent joinder purposes, short of applying the Rule
12(b)(6) standard. See Little v. Purdue Pharma, L.P., 227 F. Supp.
2d 838, 845-46 (S.D. Ohio 2002). At a minimum, it places the
court in the position of attempting to evaluate whether there is a
“colorable” cause of action under state law before exercising
jurisdiction (assuming that the non-diverse defendant was
fraudulently joined) to reach the merits of the state law claims.
Garner, 55 F. Supp. 3d at 1022-23.
The portions of Plaintiff’s Complaint that relate to FAMC are as follows:
Plaintiff asserts that he secured a line of credit in the principal
amount of $116,000.00 from Defendant Franklin American in
September, 2007.
Plaintiff asserts that he used funds from an existing 401(k) as
collateral for the line of credit and that the loan was not a
mortgage, nor was secured by real property.
Plaintiff asserts that the line of credit was to fund the cost of
improvements on said real property.
Plaintiff alleges, upon information and belief, that Defendant
Franklin American subsequently without Plaintiff’s knowledge
and/or agreement, converted said line of credit to a United States
Department of Housing and Urban Development (FHA) insured
mortgage loan.
Plaintiff alleges, upon information and belief, that Defendant
Franklin American subsequently transferred said loan in its FHA
form to Defendant J. P. Morgan Chase N. A. in June, 2012.
...
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Plaintiff further alleges, upon information and belief, that
Defendant Chase was paid by FHA an amount it claimed was
owed them pursuant to the insurance that accompanied the loan
fraudulently created and transferred by Defendant Franklin
American Mortgage.
Plaintiff further alleges, upon information and belief, that
Defendant Chase, now claims ownership of Plaintiff’s real
property and is demanding that Plaintiff execute a new note and/or
tender payment on a loan that has already been fully paid by the
Plaintiff and by the FHA insurance program, all as a result of the
fraudulent acts of Defendant Franklin American Mortgage.
…
Plaintiff further alleges that Defendant Chase is and has been
continuing to be the beneficiary of the fraudulent acts of Defendant
Franklin American.
...
Alternatively Plaintiff seeks damages from Defendant Franklin
American Mortgage Company in the amount of $1,500,000.00 to
compensate him for loss of real property and for his pain and
suffering.
That Plaintiff be awarded punitive damages from Defendant
Franklin American Mortgage Company in the amount of
$1,500,000.00.
Docket No. 1-2 (Complaint), p. 2-5 (paragraph numbering omitted). Plaintiff has not filed an
Amended Complaint nor moved for permission to do so.
“Pro se complaints are to be held to less stringent standards than formal pleadings drafted
by lawyers, and should therefore be liberally construed.” Williams v. Curtin, 631 F.3d 380, 383
(6th Cir. 2011), quoting Ashcroft v. Iqbal, 556 U.S. 662, 678-79, 129 S. Ct. 1937 (2009) (internal
quotation marks omitted). Pro se litigants, however, are not exempt from the requirements of the
Federal Rules of Civil Procedure. Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989). Further,
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“a Court cannot create a claim which [a plaintiff] has not spelled out in his pleading.” Brown v.
Matauszak, 415 F. App’x 608, 613 (6th Cir. 2011). See also Payne v. Sec’y of Treas., 73
F.App’x 836, 837 (6th Cir. 2003) (affirming sua sponte dismissal of complaint pursuant to Fed.
R. Civ. P. 8(a)(2) and stating, “[n]either this court nor the district court is required to create
Payne’s claim for her.”
It is apparent that Plaintiff’s claims against FAMC center around its alleged “fraudulent
acts.” Thus, the relevant inquiry is whether Plaintiff has a colorable cause of action for fraud
under Tennessee law against FAMC. This inquiry implicates a decision of whether to assess
Plaintiff’s Complaint under the Federal or Tennessee rules of pleading.
To add another layer of complexity, it does not appear that the
Sixth Circuit has explicitly stated whether district courts assessing
fraudulent joinder should consider the claims in light of the
pleading standard applicable in state court rather than the federal
pleading standards (if they differ). Here, the distinction is
important, because Tennessee has rejected the Twombly/Iqbal
standard for analyzing motions to dismiss. Webb v. Nashville Area
Habitat for Humanity, Inc., 346 S.W.3d 422 (Tenn. 2011). Instead
of the more stringent federal standard, Tennessee employs a
“liberal notice pleading standard,” the primary purpose of which is
merely “to provide notice of the issues presented to the opposing
party and the court.” Id. at 426. Reasoning that a federal district
court’s role is to determine whether there is “arguably a reasonable
basis for predicting that the state law might impose liability on the
facts involved,” many federal courts have applied the state law
standard in determining fraudulent joinder. See Smith v. Baker
Concrete Constr., Inc., 2014 U.S. Dist. LEXIS 105152, 2014 WL
3715125, at *4 (E.D. Tenn. Mar. 28, 2014) (applying Tennessee
pleading standard); Worrix v. Medtronic, Inc., 2013 U.S. Dist.
LEXIS 179434, 2013 WL 6834719 at *4 (E.D. Ky. Dec. 23, 2013)
(applying Kentucky pleading standard); In re Regions Morgan
Keegan Sec., Derivative, & ERISA Litig., 2013 U.S. Dist. LEXIS
77185, 2013 WL 2404063, at *12-13 (W.D. Tenn. May 31, 2013)
(concluding, after conducting an Erie analysis, that more liberal
Texas pleading standard should apply). By contrast, other federal
courts, applying the rule that the federal rules “apply to a civil
action after it is removed from a state court,” see Fed. R. Civ. P.
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81(c)(1), have found that the federal pleading standards apply
when assessing fraudulent joinder. See, e.g., Beavers v. Depuy
Orthopaedics, Inc., 2012 U.S. Dist. LEXIS 74453, 2012 WL
1945603, at *3 (N.D. Ohio May 30, 2012); Okenkpu v. Allstate
Tex. Lloyd’s, 2012 U.S. Dist. LEXIS 41705, 2012 WL 1038678, at
*7 (S.D. Tex. Mar. 27, 2012).
Garner, 55 F. Supp. 3d at 1022-23.
Under the Federal Rules, a plaintiff must state with “particularity the circumstances
constituting fraud.” Fed. R. Civ. P. 9(b). To meet this requirement, the plaintiff must allege “(1)
the time, place, and content of the alleged misrepresentation, (2) the fraudulent scheme, (3) the
defendant’s fraudulent intent, and (4) the resulting injury.” Wall v. Mich. Rental, No. 16-1988,
2017 U.S. App. LEXIS 4432, at *7, (6th Cir. March 6, 2017), citing United States ex rel. Bledsoe
v. Cmty. Health Sys., Inc., 501 F.3d 493, 504 (6th Cir. 2007) (internal quotation marks omitted).
Under Tennessee law, a plaintiff must plead fraud by alleging facts supporting the
following elements: “(i) the defendant made a representation of an existing or past fact; (ii) the
representation was false when made; (iii) the representation was in regard to a material fact; (iv)
the false representation was made either knowingly or without belief in its truth or recklessly; (v)
plaintiff reasonably relied on the misrepresented material fact; and, and [sic] (vi) plaintiff
suffered damage as a result of the misrepresentation.” Diggs v. Lasalle Nat’l Bank Ass’n, 387
S.W. 3d 559, 564 (Tenn. Ct. App. 2012), citing Metro. Gov’t of Nashville & Davidson County v.
McKinney, 852 S.W. 2d 233, 237 (Tenn Ct. App. 1992). Further, Tennessee Rule of Civil
Procedure 9.02 requires that “[i]n all averments of fraud or mistake, the circumstances
constituting fraud or mistake shall be stated with particularity.”
Here, Plaintiff has not alleged that FAMC made any representation, false or otherwise.
See Docket No. 1-2. Rather, Plaintiff alleges that after he took out a loan from FAMC, secured
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by money from his 401(k), FAMC converted that loan to a mortgage secured by Plaintiff’s real
property. Id. It is therefore not necessary to decide whether Plaintiff’s fraud pleading should be
evaluated under the Federal or Tennessee standard, as Plaintiff’s pleading is inadequate under
either standard. Because Plaintiff’s Complaint does not allege a colorable claim of fraud under
Tennessee state law, the joinder of FAMC should be deemed fraudulent, and thus FAMC’s
citizenship does not destroy the complete diversity necessary for this Court to retain jurisdiction
over the matter.
The remedy for fraudulent joinder is dismissal of the claims against the non-diverse
defendant. Murriel-Don Coal Co., Inc. v. Aspen Ins. UK Ltd., 790 F. Supp. 2d 590, 595 (E.D.
Ky. 2011); see also Maher v. Federated Serv. Ins. Co., 666 F. App’x 396, 400-01 (6th Cir.
2016), finding, in the context of allegation of fraudulent joinder, “[p]ursuant to Federal Rule of
Civil Procedure 21, we have the authority to dismiss dispensable non-diverse parties.”
Therefore, the Court should dismiss the claims against FAMC, and allow the case to proceed in
this Court against Chase alone. 1
B. Res Judicata
This leads to consideration of Chase’s argument that Plaintiff’s claims against it should
be barred by the doctrine of res judicata. Docket No. 5, p. 5-8. Specifically, Chase contends that
the Tennessee General Sessions Court has already rendered a final judgment on the merits of the
same cause of action. Id. at 6-8. Plaintiff responds that there was no judgment on the merits in
General Sessions Court; rather, the Parties entered into an agreed order to stay the proceedings

1

Because the Court should find that it has diversity jurisdiction pursuant to 28 U.S.C. § 1332, it
is not necessary to address the Parties’ arguments regarding federal question jurisdiction under
28 U.S.C. § 1331.
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for thirty days, but the matter was never placed back on the docket and heard. Docket No. 30, p.
2. Plaintiff further argues that the litigants are not the same in each action, as FAMC was not
present in the General Sessions case, and that “the same cause of action in a detainer action and
that of this cause are simply not the same.” Id.
To withstand a Federal Rule of Civil Procedure 12(b)(6) motion to dismiss, a complaint
must allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 547 (2007). The Supreme Court has clarified the Twombly standard,
stating that “[a] claim has facial plausibility when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Plausibility requires “more than a sheer
possibility that a defendant has acted unlawfully.” Id. A complaint that pleads facts “‘merely
consistent with’ defendant’s liability . . . ‘stops short of the line between possibility and
plausibility’ of ‘entitlement to relief.’” Id. (quoting Twombly, 550 U.S. at 557 (internal brackets
omitted)).
When ruling on a defendant’s motion to dismiss, the court must “construe the complaint
liberally in the plaintiff’s favor and accept as true all factual allegations and permissible
inferences therein.” Gazette v. City of Pontiac, 41 F.3d 1061, 1064 (6th Cir. 1994). The court
should allow “a well-pleaded complaint [to] proceed even if it strikes a savvy judge that actual
proof of those facts is improbable.” Twombly, 550 U.S. at 556. However, a “plaintiff’s
obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and
conclusions.” Id. at 555. “A legal conclusion couched as a factual allegation need not be
accepted as true on a motion to dismiss,” Fritz v. Charter Twp. of Comstock, 592 F.3d 718, 722
(6th Cir. 2010) (citation and internal quotation marks omitted), and mere recitation of the
10

elements of a cause of action “or an “unadorned, the-defendant-unlawfully-harmed-me
accusation” will not do, Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 555. While the court must
accept “as true all non-conclusory allegations in the complaint,” Delay v. Rosenthal Collins Grp.,
LLC, 585 F.3d 1003, 1005 (6th Cir. 2009), it does not have to accept unsupported legal
conclusions, Iqbal, 556 U.S. at 678.
Additionally, while the court will not generally consider matters outside of the pleadings
when ruling on a motion to dismiss, “the court may . . . consider other materials that are integral
to the complaint, are public records, or are otherwise appropriate for the taking of judicial
notice.” Wyser-Pratte Mgmt. Co. v. Telxon Corp., 413 F.3d 553, 560 (6th Cir. 2005). Any
“[d]ocuments attached to a motion to dismiss are considered part of the pleadings if they are
referred to in the plaintiff’s complaint and are central to the plaintiff’s claim.” Jackson v. City of
Columbus, 194 F.3d 737, 745 (6th Cir. 1999), abrogated on other grounds by Swierkiewicz v.
Sorema N.A., 534 U.S. 506 (2002). “Therefore, the Magistrate Judge may consider documents
relating [to] the note, mortgage, assignment, loan modification process, and foreclosure that are
referenced in the complaint and integral to [Plaintiff’s] claims.” Currie v. CitiMortgage, No.
3:14-cv-02151, 2015 U.S. Dist. LEXIS 98272 at *6 (M.D. Tenn. July 28, 2015) quoting Gardner
v. Quicken Loans, Inc., 567 F. App’x 362, 364-65 (6th Cir. 2014) (internal quotation marks
omitted, alterations in original). “With regard to a motion to dismiss on res judicata grounds, a
district court may take judicial notice of other court proceedings without converting the motion
into one for summary judgment as long as those proceedings are relied on not for the truth of the
facts recited there, but for the existence of the opinion.” Floch v. JPMorgan Chase Bank, N.A.,
No. 14-cv-02712-STA-tmp, 2015 U.S. Dist. LEXIS 34987 at *11 (W.D. Tenn. Feb. 13, 2015)
(citation and internal quotation marks omitted).
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Federal courts must “give the same preclusive effect, under the doctrines of res judicata
and collateral estoppel, to state court judgments that those judgments would receive in courts of
the rendering state.” Ingram v. City of Columbus, 185 F.3d 579, 593 (6th Cir. 1999). “State law
determines the preclusive effect given to a prior state court judgment.” Marrese v. American
Academy of Orthopaedic Surgeons, 470 U.S. 373, 384, 105 S. Ct. 1327 (1985). Accordingly, the
Court will apply Tennessee law because the Davidson County General SessionsCourt rendered
the prior judgment. Under Tennessee law, “[t]he doctrine of res judicata . . . bars a second suit
between the same parties or their privies on the same cause of action with respect to all issues
which were or could have been litigated in the former suit.” Creech v. Addington, 281 S.W. 3d
363, 376 (Tenn. 2009) (emphasis added). The doctrine is not based upon “any presumption that
the final judgment was right or just. Rather, it is justifiable on the broad grounds of public policy
which requires an eventual end to litigation.” Id., citation and internal quotation marks omitted.
The party asserting res judicata must establish: “(1) that the underlying judgment was rendered
by a court of competent jurisdiction, (2) that the same parties or their privies were involved in
both suits, (3) that the same claim or cause of action was asserted in both suits, and (4) that the
underlying judgment was final and on the merits.” Boyce v. LPP Mortgage Ltd., 435 S.W. 3d
758, 764 (Tenn. Ct. App. 2013).
As to the first factor, the General Sessions Court is a court of competent jurisdiction.
“[T]he General Sessions Court possesses the authority to decide the merits of a detainer warrant”
and “wrongful or fraudulent foreclosure may be raised as an affirmative defense to an unlawful
detainer action.” Lawlor v. SunTrust Mortgage, Inc., No. 3:13-cv-00387, 2013 U.S. Dist. LEXIS
116584 at *11 (M.D. Tenn. Aug. 15, 2013), citing Tenn. Code Ann. § 29-18-107.

12

Regarding the second factor, Plaintiff is correct that FAMC was not a party to the
General Sessions Court suit; however, as discussed above, FAMC should be dismissed from this
matter under the doctrine of fraudulent joinder, leaving only Plaintiff and Chase, who were
parties to that suit. 2
Third, the same cause or action was asserted in both suits. “Two suits . . . shall be
deemed the same ‘cause of action’ for purposes of res judicata where they arise out of the same
transaction or a series of connected transactions.” Creech, 281 S.W. 3d at 381. Here, “both the
instant suit and the Detainer Warrant and Judgment arise from the same transaction—Chase’s
allegedly-wrongful foreclosure on [Plaintiff’s] property.” Davis v. JPMorgan Chase Bank, N.A.,
No. 3:13-cv-01083, 2015 U.S. Dist. LEXIS 93568 at * 9 (M.D. Tenn. July 16, 2015). As such,
Plaintiff is barred from collaterally attacking the General Sessions Court’s judgment in the
instant suit.
Finally, the judgment entered against Plaintiff was final and on the merits. “A final
judgment in General Sessions Court bars a subsequent suit in another court on the same subject.”
Clay v. Barrington Motor Sales, Inc., 832 S.W. 2d 33, 34 (Tenn. Ct. App. 1992); see also Boyce,
435 S.W. 3d at 768 (finding that a detainer warrant granted by the General Sessions Court has a
“preclusive effect”). “[A] final judgment is one that resolves all the issues in the case, leaving
nothing else for the trial court to do.” In re Estate of Ridley, 270 S.W. 3d 37, 40 (Tenn. 2008)
(citation and internal quotation marks omitted). Despite Plaintiff’s assertion that that the
2

Although the case style on the General Sessions suit judgment lists Williefia Gunn as the
Defendant, the judgment is granted against “Defendant(s) Samuel Davis occupant/owner.”
Docket No. 5-1. Further, this Court has already found that Plaintiff was a party to the General
Sessions suit at issue. Davis v. JPMorgan Chase Bank, N.A., No. 3:13-cv-01083, 2015 U.S.
Dist. LEXIS 93568 at * 9 (M.D. Tenn. July 16, 2015).
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judgment against him was not final because it was, instead, “an agreed order to stay any and all
proceedings in the matter for 30 days,” it is clear that a final judgment was rendered, attached as
Exhibit A to Chase’s Motion to Dismiss. See Docket No. 5-1. That document appears to be a
file-stamped judgment from the Court of General Sessions, showing judgment granted to the
plaintiff (in that matter, JPMorgan Chase Bank, NA), against “Defendant(s) Samuel Davis
occupant/owner,” by “Agreement of Parties,” and is signed by a representative of Chase and
Samuel L. Davis (Plaintiff). Id. It is true that someone has handwritten the words “no writ to
issue for 30 days” on the judgment. Id. While the undersigned cannot presume to know the
purpose of that notation, the judgment was clearly intended to have its full effect, at the latest,
thirty days after it was issued and signed by the Parties (February 6, 2013). A failure to appeal a
final judgment renders that decision final and immune to collateral attack. See Ridley, 270 S.W.
3d at 40.
Therefore, Plaintiff’s claims against Chase are barred by res judicata, and should be
dismissed.
III. Recommendation
For the foregoing reasons, the undersigned recommends that Plaintiff’s “Motion to
Recind Notice and Order of Removal” (Docket No. 22) be DENIED; that Chase’s “Motion to
Dismiss” (Docket No. 4) be GRANTED; and that all other pending motions (Docket Nos. 14 and
31) be terminated as moot.
Under Rule 72(b) of the Federal Rules of Civil Procedure, any party has fourteen
(14) days after service 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 fourteen (14) days after service of any objections filed to this Report in which to file
14

any response to said objections. Failure to file specific objections within fourteen (14) days of
service of this Report and Recommendation can constitute a waiver of further appeal of this
Recommendation. See 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); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72.

___________________________________
JEFFERY S. FRENSLEY
United States Magistrate Judge

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