Waterford Crossings Apartments v. Tipton

Filing 7

REPORT AND RECOMMENDATION: For the reasons set forth below, the undersigned Magistrate Judge respectfully recommends that the motion for remand 6 be granted and that this case be remanded to the General Sessions Court for Davidson County, Tennessee. Signed by Magistrate Judge Barbara D. Holmes on 4/16/18. (xc:Pro se party by regular mail. ) (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(afs)

IN THE UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
WATERFORD CROSSINGS
APARTMENTS
v.
LATOSHA NICHOLE TIPTON and
EUGENE TIPTON

TO:

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NO. 3:18-0131

Honorable William L. Campbell, Jr., District Judge

REPORT AND RECOMMENDATION
By Order entered February 22, 2018 (Docket Entry No. 5), the Court referred this case to the
Magistrate Judge for pretrial proceedings under 28 U.S.C. §§ 636(b)(1), Rule 72(b) of the Federal
Rules of Civil Procedure, and the Local Rules of Court.
On February 9, 2018, LaTosha Nichole Tipton removed this case to this Court from the
General Sessions Court for Davidson County, Tennessee. See Notice of Removal (Docket Entry
No. 1). Presently pending is the motion of Waterford Crossing Apartments to remand and/or dismiss
the case. See Docket Entry No. 6. For the reasons set forth below, the undersigned Magistrate Judge
respectfully recommends that the motion for remand be granted and that this case be remanded to
the General Sessions Court for Davidson County, Tennessee.

I. BACKGROUND
On January 18, 2018, Waterford Crossing Apartments (“Waterford Crossings”) sought a
detainer warrant against LaTosha Nichole Tipton and Eugene Tipton in the General Sessions Court
for Davidson County, Tennessee, related to an apartment located at 2921 Old Franklin Road,
Apt. 621, Cane Ridge, Tennessee (“the State Court Action”). See Docket Entry No. 1-2 at 2.
Attached to the Notice of Removal is a lease contract between LaTosha Tipton and Waterford

Crossing for the apartment. See Docket Entry No. 1-5. After the Tiptons failed to appear at a
hearing in the State Court Action on January 31, 2018, the state judge found them in default. See
Docket Entry No. 1-2 at 2.
Latosha Tipton thereafter filed a pro se Notice of Removal on February 9, 2018. See Docket
Entry No. 1. Although the Notice of Removal states that removal is brought by both Latosha Tipton
and Eugene Tipton, the Notice is signed by only Latosha-Nichole Tipton. Id. LaTosha Tipton
asserts in the Notice of Removal that removal is brought pursuant to 28 U.S.C. § 1441(b), which
refers to removal based on diversity of citizenship. However, this reference appears to be a
typographical error because there are no allegations in the Notice of Removal pertaining to diversity
jurisdiction and no reference to 28 U.S.C. § 1332, which provides for original federal jurisdiction
on the basis of diversity of citizenship. Instead, the Notice of Removal asserts that the State Court
Action is being removed because this Court has original jurisdiction over the state court action under
28 U.S.C. § 1331 due to a federal question. Specifically, the Notice of Removal states that original
federal question jurisdiction exists because the state court action “arises under a treaty of the United
States, commonly referred to as the United Nations Convention on Contracts for the International
Sale of Goods.” Id.
Subsequent to removal of the action, Waterford Crossings moved on February 23, 2018, to
remand or dismiss the action. See Docket Entry No. 6. Waterford Crossings raises three arguments:
(1) the Notice of Removal is not signed by Eugene Tipton and Latosha Tipton is not an attorney who
can represent Eugene Tipton; (2) this Court does not have either original federal question jurisdiction
or diversity jurisdiction over the State Court Action because the State Court Action pertains to only
matters of state law and because the requirements for diversity of citizenship have not been shown;
and (3) the instant action is essentially an impermissible attempt by Latosha Tipton to seek review
of the final judgment entered in the State Court Action and is barred by the Rooker-Feldman
doctrine. Waterford Crossings requests an order remanding the case back to the state court or
dismissing the case, an order “noting that the underlying state court judgment for possession of the

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property as to Eugene Tipton is a valid, final judgment,” id. at 1, and an award of attorney’s fees and
costs related to its defense of the frivolous and meritless removal.
Local Rule 7.01(b) provides that a response to the motion of Waterford Crossings is due no
later than fourteen (14) days after service of the motion. However, LaTosha Tipton has not filed a
response to the motion of Waterford Crossings. Local Rule 7.01(b) also provides that failure to file
a timely response “shall indicate that there is no opposition to the motion.”

II. SUBJECT MATTER JURISDICTION AND REMAND
The motion to remand should be granted and this case should be remanded back to the state
court from which it was removed. This Court has no subject matter jurisdiction to hear the case.
The district courts of the United States are courts of limited jurisdiction and possess only that
power authorized by the Constitution and by statute. Exxon Mobil Corp. v. Allapattah Servs., Inc.,
545 U.S. 546, 552, 125 S. Ct. 2611, 162 L. Ed. 2d 502 (2005). The issue of the Court’s subject
matter jurisdiction to hear a case is a threshold issue that may be reviewed by the Court at any time.
See New Hampshire Co. v. Home Sav. & Loan Co. of Youngstown, Ohio, 581 F.3d 420, 423 (6th Cir.
2009); Nagalingam v. Wilson, Sowards, Bowling & Costanzo, 8 Fed.App’x. 486, 487, 2001 WL
493392 (6th Cir. May 1, 2001); Campanella v. Commerce Exch. Bank, 137 F.3d 885, 890 (6th Cir.
1998). With respect to a removed action, the Court must remand a case if it appears at any time
before final judgment that the Court lacks subject matter jurisdiction. See 28 U.S.C. § 1447(c).
An action may be removed from state court to federal court pursuant to 28 U.S.C. § 1441
only if the action filed in state court presents a federal question or demonstrates diversity of
citizenship between the parties and, thus, is an action over which the federal court would have
original jurisdiction. See 28 U.S.C. § 1441(a); Caterpillar, Inc. v. Williams, 482 U.S. 386, 392, 107
S.Ct. 2425, 96 L.Ed.2d 318 (1987). As the party invoking federal jurisdiction through removal,
LaTosha Tipton bears the burden of proving that a proper basis for removal exists. See Rogers v.
Wal-Mart Stores, Inc., 230 F.3d 868, 871 (6th Cir. 2000); B & B Enters. of Wilson Cnty., LLC v. City
of Lebanon, 422 F.Supp.2d 903, 904-05 (M.D. Tenn. 2006). In reviewing a motion for remand, all
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questions of fact and ambiguities in the law will be resolved in favor of the non-removing party. See
Coyne v. American Tobacco Co., 183 F.3d 488, 493 (6th Cir. 1999).
LaTosha Tipton has not satisfied her burden of showing a basis for removal. To establish
diversity jurisdiction under 28 U.S.C. § 1332(a)(1), the opposing parties must be citizens of different
states. See Newman–Green, Inc. v. Alfonzo–Larrain, 490 U.S. 826, 829, 109 S.Ct. 2218, 104
L.Ed.2d 893 (1989). Citizenship for purposes of the diversity statute is synonymous with a party’s
domicile. Kaiser v. Loomis, 391 F.2d 1007, 1009 (6th Cir. 1968). Although LaTosha Tipton refers
in her Notice of Removal to removal on the basis of diversity pursuant to 28 U.S.C. § 1441(b), she
has not shown that diversity jurisdiction exists.
Furthermore, although the Notice of Removal also refers to original federal question
jurisdiction, there is no basis upon which to conclude that the underlying State Court Action asserts
a federal question that would support federal question jurisdiction. It is well settled that the grounds
for removal of an action may be based only on the face of the underlying state court complaint which
is sought to be removed. Caterpillar, supra; Collins v. Blue Cross Blue Shield of Mich., 103 F.3d
35, 36–38 (6th Cir. 1996). The detainer warrant proceeding initiated by Waterford Crossings in the
state court is purely a matter of state law that does not raise a federal claim or question. The assertion
by LaTosha Tipton that the State Court Action arises under a treaty of the United States, specifically
the “United Nations Convention on Contracts for the International Sale of Goods” does not prevent
remand of the case. While such a treaty exists, Latosha Tipton has not shown how the treaty applies
to the state court detainer action and her contention that federal question jurisdiction supporting
removal arises from this brief reference to the treaty is nonsensical. "Merely referring to a federal
statute, however, does not establish federal jurisdiction if the dispute does not involve ‘a substantial
question of federal law.'" Ford v. Hamilton Inv., Inc., 29 F.3d 255, 258 (6th Cir. 1994) (citing
Franchise Tax Bd. v. Construction Laborers Vacation Trust, 463 U.S. 1, 28, 103 S.Ct. 2841, 77
L.Ed.2d 420 (1983)). See also Bedford Associates v. Coleman, 2016 WL 6947017 at *2 (N.D. Ohio
Nov. 28, 2016) (“defendants' Notice of Removal is nonsensical and does not clearly set forth a valid
basis for an exercise of federal subject-matter jurisdiction.”).
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Additionally, the Court notes a defect in the removal that is unrelated to the lack of subject
matter jurisdiction but likewise warrants remand. Despite the assertion in the Notice of Removal
that Eugene Tipton joins in the Notice of Removal, he neither signed the Notice nor subsequently
filed notice of his consent to removal. Removal under 28 U.S.C. § 1441(a) requires unanimity
among the defendants. 28 U.S.C. § 1446(b)(2)(A). “This rule of unanimity demands that all
defendants must join in a petition to remove a state case to federal court.” Loftis v. United Parcel
Serv., Inc., 342 F.3d 509, 516 (6th Cir. 2003) (citing Brierly v. Alusuisse Flexible Packaging, Inc.,
184 F.3d 527, 533-34 n. 3 (6th Cir. 1999)).
Given the clear and obvious conclusion that there is no basis for removal of the State Court
Action to the federal court, the Court declines to address either Waterford Crossings’ request for an
order “noting” the validity or finality of the judgment entered in the Davidson County General
Sessions Court or its assertion that the Rooker-Feldman doctrine applies. The Court likewise
declines to award attorney’s fees and costs as requested by Waterford Crossings even though such
an award is permissible under 28 U.S.C. § 1447(c).

RECOMMENDATION
Based on the foregoing, the undersigned Magistrate Judge respectfully RECOMMENDS that
the motion of Waterford Crossing Apartments to remand be GRANTED and that this case be
summarily remanded to the General Sessions Court for Davidson County, Tennessee pursuant to
28 U.S.C. § 1447(c).
ANY OBJECTIONS to this Report and Recommendation must be filed with the Clerk of
Court within fourteen (14) days of service of this Report and Recommendation and must state with
particularity the specific portions of this Report and Recommendation to which objection is made.
See Rule 72(b)(2) of the Federal Rules of Civil Procedure and Local Rule 72.03(b)(1). A failure to
file written objections within the specified time can be deemed a waiver of the right to appeal the
District Court's Order regarding the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140,
106 S.Ct. 466, 88 L.Ed.2d 435 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). Any
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other party wishing to respond to the objections shall file a response within fourteen (14) days after
being served with a copy of such objections. See Federal Rule 72(b)(2) and Local Rule 72.03(b)(2).

Respectfully submitted,

BARBARA D. HOLMES
United States Magistrate Judge

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