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.

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

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

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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.)
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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
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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.)
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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
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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

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