M & T Bank v. Martin

Filing 9

ORDER Rejecting Report and Recommendations DE 8 ; AND ORDER for Defendant to Show Cause signed by Judge John T. Fowlkes, Jr. on 10/22/14. (Fowlkes, John)

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

M&T BANK,
Plaintiff,

v.
CHARLEY MAE MARTIN,
Defendant.

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Case No. 2:14-cv-2566-JTF-dkv

ORDER REJECTING REPORT AND RECOMMENDATION FOR SUA SPONTE
DISMISSAL AND ORDER FOR DEFENDANT TO SHOW CAUSE
Before the Court is pro se Defendant’s Notice of Removal filed on July 23, 2014. (ECF
No. 1). Defendant filed with an accompanying motion seeking leave to proceed in forma
pauperis. (ECF No. 2). This case was referred to the United States Magistrate Judge for
management for all pretrial matters. (ECF No. 3). The Magistrate Judge determined that
Defendant’s motion seeking in forma pauperis status was not sufficient in establishing
Defendant’s inability to pay; therefore, on July 28, 2014, the Magistrate Judge ordered the
Defendant to file a properly supported motion for in forma pauperis status or pay the appropriate
filing fee. (ECF No. 4). The Defendant was warned that failure to comply within thirty (30)
days would result in a dismissal under 41(b) for failure to prosecute. Defendant filed a second
Motion for Leave to Proceed in forma pauperis on September 5, 2014. (ECF No. 7). The
second in forma pauperis motion contained the same affidavit that was found insufficient before.
As such, the Magistrate Judge recommends that the case be dismissed for want of prosecution

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pursuant to Fed. R. Civ. P. 41(b). (ECF No. 8). No objections have been filed to the Magistrate
Judge’s Report and Recommendation.
After reviewing the Magistrate Judge’s Report and Recommendation and the entire
record in this case, the Court hereby REJECTS the Magistrate Judge’s Report and
Recommendation. Fed. R. Civ. P. 41(b) provides that “[i]f the plaintiff fails to prosecute or to
comply with these rules or a court order, a defendant may move to dismiss the action or any
claim against it.” This rule is improper when, as in here, the failing party is the defendant in the
action. Further, the Magistrate Judge recommends that after dismissal the case be remanded to
Shelby County Chancery Court. 28 U.S.C. § 1447(c) provides in pertinent part that “[a] motion
to remand the case on the basis of any defect other than lack of subject matter jurisdiction must
be made within 30 days after the filing of the notice of removal under section 1446(a).” The
Sixth Circuit has interpreted this provision to mean that only a party to the suit can bring such a
motion. Page v. City of Southfield, 45 F.3d 128, 134 (6th Cir. 1995) (“The district court should
not interfere with an agreed upon forum until the plaintiff, by motion, indicates an objection to
the removal procedure or the court determines that subject matter jurisdiction is lacking.”). In
short, “§ 1447(c) prohibits a district court from remanding sua sponte for a procedural defect.”
Id. (“[S]ua sponte remands on non-jurisdictional grounds run contrary to the goals of the
statute.”).
Based on Defendant’s failure to file a proper Motion for Leave to Proceed in forma
pauperis and, in the alternative, Defendant’s failure to pay the filing fee for removal of the action
to federal court, Defendant is directed to show cause for the delay in submitting a proper in
forma pauperis motion/filing fee. Defendant shall have until October 31, 2014 to either pay the
filing fee or to submit a proper in forma pauperis motion with a supporting affidavit.

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Defendant’s failure to submit either will result in an entry of default by the Court Clerk and a
default judgment by this Court.
IT IS THEREFORE ORDERED that Defendant shall have until October 31, 2014 to
either pay the filing fee or to submit a proper in forma pauperis motion with a supporting
affidavit.
IT IS SO ORDERED this 22nd day of October, 2014.

s/John T. Fowlkes, Jr.
JOHN T. FOWLKES, JR.
UNITED STATES DISTRICT JUDGE

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