Sumner County, Tennessee v. Small-Hammer

Filing 7

MEMORANDUM OPINION OF THE COURT. Signed by Chief Judge Kevin H. Sharp on 3/13/17. (xc:Pro se party by regular and certified mail.)(DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(af)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
SUMNER COUNTY, TENNESSEE,
Plaintiff,
v.
SUSAN SMALL-HAMMER,
Defendant
SUSAN SMALL-HAMMER,
Counter Plaintiff,
SUMNER COUNTY, TENNESSEE,
Counter Defendant.

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No. 3:17-cv-00150
Chief Judge Sharp

MEMORANDUM
Pending before the court is plaintiff Sumner County, Tennessee’s motion to remand this
matter to the Circuit Court for Sumner County, Tennessee (Docket No. 4), to which defendant
Susan Small-Hammer, acting pro se and in forma pauperis, has responded in opposition (Docket
No. 6).
Sumner County filed a complaint against Small-Hammer on August, 31, 2016, in the Circuit
Court for Sumner County.

(Docket No. 1, Attach.).

counterclaim on September 29, 2016. (Id.)

Small-Hammer filed an answer and

Sumner County filed a motion to dismiss Small-

Hammer counterclaim, to which Small-Hammer responded in opposition. (Id.) The Sumner County
Circuit Court dismissed Small-Hammer’s counterclaim by order entered on December 13, 2016.
Small-Hammer filed a Notice of Removal to this court on January 20, 2017. (Id.)
“The right of removal of a suit from state court to federal court is a statutory right.” Regis
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Assocs. v. Rank Hotel (Management), Ltd., 894 F.2d 193, 195 (6th Cir. 1990)(citing 28 U.S.C. §
1441). A notice of removal shall be filed within 30 days after receipt by the defendant, by service
or otherwise, of a copy of the initial pleading setting forth the claim for relief. 28 U.S.C. § 1446(b).
The goal of the removal time period is to give defendants an adequate amount of time to file a notice
of removal. Nicholstone Cos., Inc. v. ECAM Publications, Inc., 742 F. Supp. 432, 433 (M.D. Tenn.
1990).
The right to remove a case may be waived by a party, although the waiver must be clear and
unequivocal. City of Cleveland v. Ameriquest Mortgage Securities, Inc., 615 F.3d 496, 501 (6th Cir.
2010)(citation omitted); Ellora’s Cave Publ’g v. Dear Author Media Network, LLC, No.
5:14CV2331, 2015 WL 106062 (N.D. Ohio Jan. 7, 2015). “In determining what acts constitute a
‘clean and unequivocal’ intent to waive a right to remove, courts have generally found that
preliminary matters, such as filing an answer, will not suffice.” See, e.g., Ellora’s Cave Publ’g,
2015 WL 106062 (N.D. Ohio Jan. 7, 2015) (stipulation to continue TRO hearing, serving subpoenas,
requesting depositions of plaintiffs before TRO hearing, and procuring declarations from third-party
witnesses); Bolivar Sand Co., Inc. v. Allied Equipment, Inc., 631 F. Supp. 171, 173 (W.D. Tenn.
1986)(citing Estevez-Gonzales v. Kraft, Inc., 606 F. Supp. 127 (S.D. Fla. 1985)(answer, motion for
extension of time, service of interrogatories); Gore v. Stenson, 616 F. Supp. 895 (S.D. Tex.
1984)(answer); Adams v. Lederle Laboratories, 569 F. Supp. 234 (W.D. Mos. 1983)(motion to set
aside class certification); Bedell v. H.R.C. Limited, 522 F. Supp. 732 (E.D. Ky. 1981)(motion to
abate and dismiss); Beasley v. Union Pac. R. Co., 497 F. Supp. 213 (D. Neb. 1980)(motion to vacate
temporary restraining order); Haun v. Retail Credit Co., 420 F. Supp. 859 (W.D. Pa. 1976)(answer);
Baker v. Nat’l Boulevard Bank, 399 F. Supp. 1021 (N.D. Ill. 1975)(motion to vacate preliminary
injunction); Kemp v. Utah Constr. & Mining Co., 225 F. Supp. 250 (D. Or. 1963)(motion for change

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of venue)).
However, “affirmative defensive actions, such as filing of cross-claims or permissive
counterclaims, have been found to waive a defendant’s right to remove.” Bolivar Sand Co., Inc.,
631 F. Supp. at 173 (finding that motions for directed verdict and mistrial waived right to remove).
See e.g., Harris v. Brooklyn Dressing Corp., 560 F. Supp. 940 (S.D. N.Y. 1983)(permissive
counterclaim); George v. Al-Saud, 478 F. Supp. 773 (N.D. Cal. 1979)(permissive counterclaim);
Baldwin v. Perdue, Inc., 451 F. Supp. 373 (E.D. Va. 1978)(cross-claim). Actions that may result
in a disposition on the merits of the state court action, in whole or in part, also have been found to
evidence the requisite intent. See e.g., Kiddie Riddes USA, Inc. v. Elektro-Mobiltechnik GMBH, 579
F. Supp. 1476 (C.D. Ill. 1984)(motion to vacate order of attachment); In re 73rd Precinct Station
House, 329 F. Supp. 1175 (E.D. N.Y. 1971)(motion to vacate notice of taking); Southwest Truck
Body Co. v. Collins, 291 F. Supp. 658 (W.D. Mos. 1968)(petition for writ of prohibition following
denial of motions to quash contempt citations and to dissolve injunctions). As one court explains:
The critical factors in determining whether a particular
defensive action in the state court should operate as a waiver of the
right to remove is the defendant’s intent in making the motion. If the
motion is made only to preserve the status quo ante and not to
dispose of the matter on its merits, it is clear that no waiver has
occurred. On the other hands, if a motion seeks a disposition, in
whole or in part, of the action on its merits, the defendant may not
attempt to invoke the right to remove after losing on the motion.
Bolivar Sand Co., Inc., 631 F. Supp. at 173.
The party seeking removal bears the burden of establishing its right to removal. Byrd v.
Tenn. Wine & Spirits Retailers, Ass’n, No. 3:16-cv-02738, 2017 WL 67993, at * 3 (M.D. Tenn. Jan.
6, 2017)(Sharp, J.). The removal statute is to be strictly construed, with all doubts resolved against
removal. Id. On a motion to remand, the defendants bears the burden of establishing that removal
was proper. Atkinson v. Morgan Asset Mgmt., Inc., 664 F. Supp.2d 898, 902 (W.D. Tenn. 2009).
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In its motion to remand, Sumner County first contends that Small-Hammer filed her Notice
of Removal late. Indeed, she filed her Notice of Removal 113 days after filing her answer and over
30 days after receiving notice of the complaint. Thus, her Notice of Removal is late. See 28 U.S.C.
§ 1446(b).
Sumner County also contends that Small-Hammer waived her right to removal by her actions
in state court prior to filing her Notice of Removal. Small-Hammer argues that, because her state
court case is “still open” and the judge has not heard any argument from her or the defendant
regarding the defendant’s original complaint, she “could not have fully participated in a case that
has yet to be heard.” (Docket No. 6 at p. 3). However, before informing the state court of her intent
to remove, Small-Hammer answered the Sumner County’s original complaint and filed a
counterclaim. Small-Hammer briefed and argued against Sumner County’s motion to dismiss the
counterclaim, and the state court ruled in Sumner County’s favor. Many if not most of the facts
pertinent to the counterclaim are facts pertinent to the original complaint filed by Sumner County.
It was only after Sumner County’s motion to dismiss the counterclaim had been granted that SmallHammer announced her intent to remove. Having lost that motion, Small-Hammer may not now
“appeal” the state court’s decision by removal.
The court finds, therefore, that Small-Hammer waived her right to remove by her affirmative
defensive actions in the state court. Accordingly, Sumner County’s motion to remand will be
granted.
An appropriate order will be entered.
Kevin H. Sharp
Chief United States District Judge

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