Wells Fargo Delaware Trust Co, N.A. v. Lee

Filing 12

ORDER ADOPTING in part and MODIFYING in part Report & Recommendation, DENYING Motion to Remand as moot, and REMANDING case. Signed by Judge Samuel H. Mays, Jr on 01/02/2014.

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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE WESTERN DIVISION Wells Fargo Delaware Trust, Co., N.A., ) ) ) ) ) ) ) ) ) ) ) ) Plaintiff, vs. Terry Lee, Defendant. No. 13-2708 ORDER Before the Court is the Magistrate Judge’s November 5, 2013 Report and Recommendation (the “Report”) Lee’s (“Lee”) Notice of Removal. on Defendant (Rep., ECF No. 7.) Terry Lee, who proceeds pro se, accompanied the Notice of Removal with a motion seeking leave to proceed in forma pauperis, Magistrate Judge on September 24, 2013. granted (ECF No. 4.) by the In the Report, the Magistrate Judge recommends sua sponte remand for lack of subject matter jurisdiction. (Rep., ECF No. 7 at 2.) Lee has filed a timely objection (the “Objection”) and requests leave to amend the Notice of Removal to state facts that would establish diversity jurisdiction. (Obj., ECF No. 10.) On November 27, 2013, Plaintiff Wells Fargo Delaware Trust, Co., N.A. (“Wells Fargo”) responded to the Objection. (Resp., ECF No. 11.) On November 5, 2013, Wells Fargo filed a Motion to Remand to State Court (the “Motion”). the following reasons, the Report (Mot., ECF No. 8.) is ADOPTED in part For and MODIFIED in part, Lee’s Objection is OVERRULED, and the case is REMANDED to state court. Wells Fargo’s Motion to Remand is DENIED as moot. I. Background Wells Fargo originally filed this Shelby County General Sessions Court. case against Lee in (Rep., ECF No. 7 at 2.) Wells Fargo seeks possession of property located at 6636 Wild Drive, Bartlett, TN 38135 (the “Bartlett Property”). (Id.) On September 10, 2013, Lee filed an answer and a counterclaim in General Sessions Court stating, among other things, that Wells Fargo is not the owner or holder in due course of the mortgage and note that he executed. (Id.) On the same day, Lee filed the Notice of Removal at issue here, alleging federal question jurisdiction, jurisdiction. supplemental jurisdiction, and diversity (Id. at 3, 7; Not. of Rem., ECF No. 1.) The Magistrate Judge recommends remand, concluding that Lee has not established any basis for federal jurisdiction. ECF No. 7.) (Rep., Lee has filed a timely Objection to a portion of the Report, stating that the Bartlett Property is worth $125,000 and that he can establish diversity jurisdiction if allowed to amend the Notice of Removal. (Obj., ECF No. 10 at 7.) 2 II. Standard of Review The court is required to screen in forma pauperis complaints and to dismiss frivolous complaints. 1915(e)(2). forma 28 U.S.C. § The Court assigns the responsibility to screen in pauperis complaints to the Magistrate Judge under 28 U.S.C. § 636, enacted by Congress to alleviate the burden on the federal judiciary. See United States v. Curtis, 237 F.3d 598, 602 (6th Cir. 2001) (citing Gomez v. United States, 490 U.S. 858, 869-70 (1989)). any part of a “A district judge must determine de novo magistrate properly objected to.” 636(b)(1)(C). judge’s disposition that has been Fed. R. Civ. P. 72(b); 28 U.S.C. § The district court is not required to review — under a de novo or any other standard — those aspects of the report and recommendation to which no objection is made. v. Arn, 474 U.S. 140, 150 (1985). Thomas After reviewing the evidence, the court is free to accept, reject, or modify the proposed findings or recommendations of the Magistrate Judge. 28 U.S.C. § 636(b)(1)(C). III. Analysis Federal courts “have a duty to consider their subject matter jurisdiction in regard to every case and may raise the issue sua sponte.” Answers in Genesis of Kentucky, Inc. v. Creation Ministries Int’l, Ltd., 556 F.3d 459, 465 (6th Cir. 2009). When a defendant removes a case to federal court, he has 3 the burden to establish that jurisdiction is proper. Barbosa v. Wells Fargo Bank, N.A., Civil Action No. 12-122236-DJC, 2013 WL 4056180, at *3 (D. Mass. Aug. 13, 2013). Under the removal statute, a “civil action otherwise removable solely on the basis of [diversity jurisdiction] may not be removed if any of the parties in interest properly . . . served as defendants is a citizen of the State in which such action is brought.” 28 U.S.C. § 1441(b)(2). Lee does not object to the Magistrate Judge’s finding that Lee has no basis for removal under federal question jurisdiction or supplemental jurisdiction. (Obj., ECF No. 10.) Arn counsels the Court to adopt those portions of the Report, and they are ADOPTED. Arn, 474 U.S. at 150. Lee objects to the Report’s finding that the Court lacks diversity jurisdiction. (Obj., ECF No. 10.) In her Report, the Magistrate Judge “assumes that diversity of citizenship exists” but rejects diversity as a basis for removal because “[t]he Detainer Warrant filed by Wells Fargo seeks ‘possession only’ of the Bartlett property; it does not seek any monetary amount.” (Id. at 9, 10.) Lee has filed a timely Objection, stating that the Bartlett Property is worth $125,000 and requesting that the “Court . . . allow Defendant 20 days to file an amended Notice of Removal in which he makes the proper allegations regarding the amount in controversy.” (Obj., ECF No. 10 at 7.) 4 This Court has original jurisdiction of all civil actions between citizens of different states “where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs”. 28 U.S.C. § 1332(a)(1). The “amount in controversy should be determined from the perspective of the plaintiff, with a focus on the economic value of the rights he seeks to protect.” Williamson v. Aetna Life Ins. Co., 481 F.3d 369, 376 (6th Cir. 2007). property, a party’s including [his] accurately In a possession or title dispute over “ownership right reflected of by interest exclusion the in the [p]roperty, possession, [p]roperty’s fair is market most value.” Mortlock, L.L.C. v. JPMorgan Chase Bank, N.A., Civil Action No. H-13-0734, 2013 WL 4056180, at *6 (S.D. Tex. Oct. 25, 2013). Under diversity the removal jurisdiction statute, is not removal proper on when a the defendant citizen of the state in which suit is brought. 1441(b)(2). diverse and satisfied. Based the on Lee’s Objection, amount in controversy the basis of is a 28 U.S.C. § parties may be requirement may be Removal based on diversity, however, would not be proper because Lee is a citizen of Tennessee and was sued in Shelby County General Sessions Court, a Tennessee state court. U.S.C. § concludes 1441(b)(2). that the To Court the lacks extent the diversity Magistrate jurisdiction, Judge the Report is MODIFIED to reflect that the absence of diversity is 5 based on Lee’s status as a Tennessee citizen sued in a Tennessee court. IV. Conclusion For the foregoing reasons, the Report is ADOPTED in part and MODIFIED in part, Lee’s Objection is OVERRULED, and the case is REMANDED to the General Sessions Court of Shelby County, Tennessee. Wells Fargo’s Motion to Remand is DENIED as moot. So ordered this 2nd day of January, 2014. s/ Samuel H. Mays, Jr.______ SAMUEL H. MAYS, JR. UNITED STATES DISTRICT JUDGE 6

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