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.,
)
)
)
)
)
)
)
)
)
)
)
)
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
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?