State of Tennessee Criminal Court of Memphis and Shelby County v. Farmer

Filing 8

ORDER Correcting the Docket, Granting the Motion for Leave to Respond, Denying the Motion to Dismiss, and Remanding the Case to Shelby County Criminal Court. Signed by Judge S. Thomas Anderson on 11/18/11. (Anderson, S.)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION

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Plaintiff,
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vs.
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DEVITOE-CHAUNTAUNT:FARMER a/k/a (
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DEVITOE FARMER,
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Defendant.
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CRIMINAL COURT OF MEMPHIS AND
SHELBY COUNTY,

No. 11-2560-STA-tmp

ORDER CORRECTING THE DOCKET
ORDER GRANTING MOTION FOR LEAVE TO RESPOND
ORDER DENYING MOTION TO DISMISS
AND
ORDER REMANDING CASE TO SHELBY COUNTY CRIMINAL COURT

On July 1, 2011, Defendant Devitore-Chauntaunt:Farmer
a/k/a Devitoe Farmer filed a Notice of Removal pertaining to a
criminal case pending against him in the Criminal Court for Memphis
and Shelby County, Tennessee (the “Shelby County Criminal Court”)
for theft of property over $60,000, accompanied by a motion seeking
leave to proceed in forma pauperis. (ECF Nos. 1 & 2.)1 On July 6,
2011, the Court granted leave to proceed in forma pauperis. (ECF
No. 3.) On July 11, 2011, Defendant filed an amended Notice of
Removal. (ECF No. 4.)

1
The Clerk is directed to correct the docket to reflect Defendant’s
alias, which is found in the indictment and the affidavit of complaint. (See ECF
No. 1 at 7-9.)

On August 16, 2011, the Clerk of the Shelby County
Criminal Court filed a motion seeking leave to respond to the
Notice of Removal (ECF No. 6) and a motion to dismiss (ECF No. 5).
For good cause shown, the motion for leave to respond is GRANTED.2
The Motion to Dismiss assumes, incorrectly, that this is a civil
rights action that is subject to dismissal under 28 U.S.C. § 1915A.
The Notice of Removal purports to remove Farmer’s pending criminal
case to federal court. The remedy for an improper removal is an
order of remand, not a dismissal of the action.3 Therefore, the
motion to dismiss is DENIED.
As noted, Defendant has been charged with theft of
property over $60,000. According to the affidavit of complaint,
Farmer was occupying a foreclosed residence in Memphis without the
consent of the owner, the Federal National Mortgage Association
(“FNMA”). When the police arrived to remove him, Defendant claimed
to be the owner of the property. Documents were also posted on the
door indicating that the property was owned by Devitoe Farmer.
(Aff. of Compl., ECF No. 1 at 8.)
The Notice of Removal (Diversity), which is largely
incomprehensible, asserts that the State Department had to be
notified of the criminal charge, that a federal district court must
grant the State of Tennessee jurisdiction to prosecute Farmer, that

2

Defendant has not responded to the Motion to Dismiss but, because the
motion is plainly meritless, it is unnecessary to delay the remand of this case
to permit a response.
3

In addition, 28 U.S.C. § 1915A appears to be inapplicable because
Farmer is not a prisoner. In forma pauperis actions are screened under 28 U.S.C.
§ 1915(e)(2).

2

Farmer is a “NON-Corporate” and in diversity with the State of
Tennessee, that Farmer is a corporation with complete immunity from
suit, that there has been an unspecified violation of the Uniform
Commercial Code (“UCC”), and that the United States Constitution
encompasses the UCC. The Notice of Removal purports to seek money
damages.
The Modified Notice of Removal purports to add, as
additional parties, the Shelby County Sheriff’s Department, Officer
B. Less, FNMA (which was sued as “Fannie Mae”), the First National
Mortgage Association, and Michael Williams, the Chief Executive
Office of FNMA. (ECF No. 4.)
There is no subject-matter jurisdiction over the action.
“Federal courts are courts of limited jurisdiction. They possess
only that power authorized by Constitution and statute, which is
not to be expanded by judicial decree. It is to be presumed that a
cause lies outside this limited jurisdiction, and the burden of
establishing

the

contrary

rests

upon

the

party

asserting

jurisdiction.” Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375,
114 S. Ct. 1673, 128 L. Ed 2d 391 (1994) (citations omitted); see
also Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541, 106
S. Ct. 1326, 1331, 89 L. Ed. 2d 501 (1986) (“Federal courts are not
courts of general jurisdiction; they have only the power that is
authorized by Article III of the Constitution and the statutes
enacted

by

Congress

pursuant

thereto.”);

Insurance

Corp.

of

Ireland, Ltd. v. Compagnie des Bauxite de Guinee, 456 U.S. 694,
701, 102 S. Ct. 2099, 2104, 72 L. Ed. 2d 492 (1982) (“Federal
3

courts are courts of limited jurisdiction. The character of the
controversies over which federal judicial authority may extend are
delineated in Art. III, § 2, cl. 1. Jurisdiction of the lower
federal courts is further limited to those subjects encompassed
within a statutory grant of jurisdiction.”); Owen Equip. & Erection
Co. v. Kroger, 437 U.S. 365, 374, 98 S. Ct. 2396, 2403, 57 L. Ed.
2d 274 (1978) (“It is a fundamental precept that federal courts are
courts of limited jurisdiction.”). Federal courts are obliged to
act sua sponte whenever a question about jurisdiction arises. See,
e.g., Insurance Corp. of Ireland, Ltd., 456 U.S. at 702, 102 S. Ct.
at 2104 (“a court, including an appellate court, will raise lack of
subject-matter jurisdiction on its own motion”); St. Paul Mercury
Indem. Co. v. Red Cab Co., 303 U.S. 283, 287 n.10, 58 S. Ct. 586,
589 n.10, 82 L. Ed. 845 (1938); Answers in Genesis, Inc. v.
Creation Ministries Int’l, Ltd., 556 F.3d 459, 465 (6th Cir. 2009)
(“federal courts have a duty to consider their subject matter
jurisdiction in regard to every case and may raise the issue sua
sponte”). A district court may address the issue of subject-matter
jurisdiction of a removed case sua sponte. Probus v. Charter
Communic’ns, LLC, 234 F. App’x 404, 406 (6th Cir. 2007). Although
a district court may not remand a case sua sponte because of a
procedural defect in the removal, Page v. City of Southfield, 45
F.3d 128, 132-33 (6th Cir. 1995), a sua sponte remand for want of
subject-matter jurisdiction is permitted, Lexington-Fayette Urban
Cnty. Gov’t Civil Serv. Comm’n v. Overstreet, 115 F. App’x 813,
816-17 (6th Cir. 2004).
4

The Notice of Removal purports to remove this case under
28 U.S.C. § 1441(b), which provides that “[a]ny civil action of
which the district courts have original jurisdiction founded on a
claim or right arising under the Constitution, treaties or laws of
the

United

States

shall

be

removable

without

regard

to

the

citizenship or residence of the parties. Any other such action
shall be removable only if none of the parties in interest properly
joined and served as defendants is a citizen of the State in which
such action is brought.” This action is a criminal case, not a
civil action.4 Criminal cases may be removed in only limited
circumstances, none of which are applicable here. 28 U.S.C. §§
1442(a), 1442a, 1443.
Because this Court lacks subject-matter jurisdiction over
the matter, the case is REMANDED to the Shelby County Criminal
Court. The Clerk is directed to close the case without entry of a
judgment.
Pursuant to 28 U.S.C. § 1447(d), orders remanding a case
to state court for want of subject-matter jurisdiction are not
appealable.

4
Because Defendant asserts that there is diversity jurisdiction, he
may intend to cite 28 U.S.C. § 1441(a), which governs removal of cases from state
court on the basis of diversity jurisdiction. That provision is inapplicable here
because it is limited to civil cases.

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The Clerk is directed, pursuant to 28 U.S.C. § 1447(c),
to mail a certified copy of this order to the Clerk of the Shelby
County Criminal Court.
IT IS SO ORDERED this 18th day of November, 2011.

s/ S. Thomas Anderson
S. THOMAS ANDERSON
UNITED STATES DISTRICT JUDGE

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