U. S. Bank National Association v. Tyree

Filing 16

ORDER ADOPTING REPORT AND RECOMMENDATIONS, DE 10 , signed by Judge John T. Fowlkes, Jr. on 10/17/2017. (Fowlkes, John)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
______________________________________________________________________________
U. S. BANK NAT’L ASS’N,

)
)
Plaintiff,
)
v.
)
No. 2:17-cv-02490-JTF-dkv
)
MAURICE TYREE,
)
)
Defendant.
)
_____________________________________________________________________________
ORDER ADOPTING THE CHIEF MAGISTRATE JUDGE’S REPORT AND
RECOMMENDATION FOR DISMISSAL AND REMAND TO THE GENERAL
SESSIONS COURT OF SHELBY COUNTY, TENNESSEE
______________________________________________________________________________
Before the Court is Plaintiff U.S. Bank National Association’s Motion to Remand filed
on July 14, 2017.

(ECF No. 6.)

In accordance with the Order of Reference entered on

September 7, 2017, the motion was assigned to the Chief Magistrate Judge for determination
pursuant to 28 U.S.C. § 636(b)(1)(A). (ECF No. 9.) On September 25, 2017, the Magistrate
Judge issued a Report and Recommendation suggesting that the Court grant Plaintiff’s Motion to
Remand as well as dismiss this case for lack of subject-matter jurisdiction and remand it to the
General Sessions Court of Shelby County, Tennessee, pursuant to 28 U.S.C. § 1447. (ECF No.
10.) On October 6, 2017, Defendant Maurice Tyree filed his Objections to the Report and
Recommendation. (ECF No. 12.) Upon de novo review, the Court adopts the Chief Magistrate
Judge’s Report and Recommendation to dismiss this case and remand it to the General Sessions
Court of Shelby County, Tennessee.

I.

FINDINGS OF FACT

In her Report and Recommendation, the Chief Magistrate Judge provided a summary of
the facts of this case. In essence, Plaintiff U.S. Bank filed a detainer action in Shelby County
General Sessions Court against Kenya Tyree, Maurice Tyree (“Defendant”), and all other
occupants of the property located at 10025 Point Cove, Lakeland, TN 38002, for possession of
the property. (ECF No. 1-1.) Service was accomplished, and a hearing was scheduled for July
14, 2017. (Id.) Maurice Tyree timely filed a Notice of Removal to have the case removed to the
United States District Court for the Western District of Tennessee. The Notice of Removal was
signed only by Maurice Tyree, who based his argument for removal on 28 U.S.C. § 1331, 28
U.S.C. § 1441(d), and 15 U.S.C. § 1692. (ECF No. 1.) On July 14, 2017, Plaintiff U.S. Bank
filed its Motion to Remand the matter to the Circuit Court of Shelby County, Tennessee. (ECF
No. 6.) Almost a month later, on August 9, 2017, Defendant Maurice Tyree filed a pro se
Motion for Removal/Transfer of Action Pursuant to 28 U.S.C. § 1404. (ECF No. 8.) The
Motion to Remand was referred to the Chief Magistrate Judge by an order on September 7, 2017,
(ECF No. 9.), and on September 25, 2017, the Chief Magistrate Judge issued a Report and
Recommendation to dismiss and remand the case.

(ECF No. 10.)

On October 6, 2017,

Defendant Maurice Tyree filed his Objection to the Report and Recommendation. (ECF No. 12.)
II.

LEGAL STANDARD

Congress passed 28 U.S.C. § 636(b) “to relieve some of the burden on the federal courts
by permitting the assignment of certain district court duties to magistrates.” United States v.
Curtis, 237 F.3d 598, 602 (6th Cir. 2001). Pursuant to the provision, magistrate judges may
“hear and determine any pretrial matter pending before the [C]ourt, except [various dispositive
motions].” 28 U.S.C. § 636(b)(1)(A). Upon hearing a pending matter, “the magistrate judge

must enter a recommended disposition, including, if appropriate, proposed findings of fact.”
Fed. R. Civ. P. 72(b)(1); see also Baker v. Peterson, 67 Fed. App’x. 308, 310 (6th Cir. 2003).
Any party who disagrees with a magistrate’s proposed findings and recommendation may file
written objections to the report and recommendation. Fed. R. Civ. P. 72(b)(2). The standard of
review that is applied by the district court depends on the nature of the matter considered by the
magistrate judge. See Baker v. Peterson, 67 Fed. App’x 308, 310 (6th Cir. 2003) (citations
omitted) (“A district court normally applies a ‘clearly erroneous or contrary to law’ standard of
review for nondispositive preliminary measures.

A district court must review dispositive

motions under the de novo standard.”). “After reviewing the evidence, the Court is free to
accept, reject, or modify the proposed findings or recommendations of the Magistrate Judge.”
Brown v. Board of Educ., 47 F. Supp. 3d 665, 674 (W.D. Tenn. 2014); see also 28 U.S.C. §
636(b)(1). A district judge should adopt the findings and rulings of the magistrate judge to
which no specific objection is filed. Brown, 47 F. Supp. 3d at 674. Additionally, although not
free from basic pleading requirements, pro se pleadings are “held ‘to less stringent standards
than formal pleadings drafted by lawyers,’ and should therefore be liberally construed.”
Williams v. Curtin, 631 F.3d 380, 383 (6th Cir. 2011) (quoting Martin v. Overton, 391 F.3d 710,
712 (6th Cir. 2004)).
III.

ANALYSIS

The Chief Magistrate Judge recommends that the Court grant U.S. Bank’s Motion to
Remand, dismiss this case for lack of subject-matter jurisdiction, and remand the matter to the
General Sessions Court of Shelby County, Tennessee, pursuant to 28 U.S.C. § 1447. (ECF No.
10 at 10.) The recommendation is based on two conclusions: (1) that federal subject-matter
jurisdiction is lacking because Defendant failed to allege a federal question or the presence of

diversity jurisdiction; and (2) that removal is improper because the Notice of Removal is not
signed by all defendants, and thus lacks each defendant’s consent to removal, as required by the
‘Rule of Unanimity’. (ECF No. 10 at 6–10.)
In concluding federal-question jurisdiction is lacking, the Chief Magistrate Judge found
that Defendant’s Complaint alleges neither a cause of action expressly created by federal law nor
a state law claim that necessarily depends on a federal issue, is preempted by federal law, or is a
federal-law claim in disguise. (Id. at 6.) The Magistrate further noted that “U.S. Bank’s detainer
action arose under state law, see Tenn. Code Ann. § 29-18-101 et seq.,” and that to the extent
Defendant uses the alleged FDCPA violations in his Notice of Removal as a defense or a
counterclaim to the detainer action, such cannot not serve as a basis for federal-question
jurisdiction since a potential defense cannot satisfy the “well-pleaded complaint rule” and
counterclaims do not qualify a case for federal-court cognizance.

(ECF No. 10 at 6–8.)

Additionally, the Chief Magistrate Judge concluded that diversity jurisdiction is lacking in the
present matter because Defendant failed to meet his burden of pleading such when he did not
“argue that the court ha[d] diversity jurisdiction, [he did not] plead the citizenship of the parties
or the amount in controversy[,]” and “no other documents filed with the district court indicate the
citizenship of the parties or the amount in controversy.” (ECF No. 10 at 8–9.)
This Court agrees with the Chief Magistrate Judge’s conclusion that federal subjectmatter jurisdiction is lacking in the present matter. Federal-question jurisdiction requires that
“the alleged claim actually arise[] under the Constitution or federal statutes and is not made
solely for the purpose of obtaining jurisdiction,” Pegross v. Oakland Cty. Treasurer, 592 F.
App’x. 380, 380–81 (6th Cir. 2014), while Diversity Jurisdiction requires “complete diversity of
the parties [based on state citizenship] and an amount in controversy exceeding $75,000.” Naji

v. Lincoln, 665 F. App’x. 397, 400 (6th Cir. 2016). Here, Defendant’s alleged claims do not
arise under the Constitution or federal statutes, and nothing in the record provides the citizenship
of the parties, the amount in controversy, or any other factual support for concluding diversity
jurisdiction exists. Thus, dismissal for lack of federal subject-matter jurisdiction is proper.
In his Objection to the Report and Recommendation, Maurice Tyree lodges a number of
objections, one of which is relevant to the Chief Magistrate Judge’s recommendation of
dismissal on jurisdictional grounds and, accordingly, addressed below.
Defendant contends that the Chief Magistrate Judge erred in concluding that the Court
lacked subject-matter jurisdiction over this case. In making this argument, Defendant appears to
rely on 15 U.S.C. § 1692(i) for the proposition that, to enforce an interest in real property
securing a consumer’s obligation, as is attempted here, an action must be brought in a “judicial
district” or “similar legal entity” in which such real property is located. (ECF No. 12 at 4.)
Defendant submits that a general sessions court or lower tribunal is not a ‘judicial’ district as
intended by the provision. (Id.) Thus, according to Defendant Tyree, the Chief Magistrate
Judge’s recommendation to remand the matter to the General Sessions Court of Shelby County,
Tennessee, is improper. (Id.) This contention, however, is incorrect.
A general sessions court is a “judicial district” or “similar legal entity” as intended by
Title 15 U.S.C. § 1692(i). Section 1692(i) deals with the venue in which a debt collector may
sue a debtor. 15 U.S.C. § 1692(i); see also Franklyn v. Fannie Mae, No. 14-cv-10943, 2015
U.S. Dist. LEXIS 718, at *19 (E.D. Mich. Jan. 6, 2015). It provides: “Any debt collector who
brings any legal action on a debt against any consumer shall—(1) in the case of an action to
enforce an interest in real property securing the consumer’s obligation, bring such action only in
a judicial district or similar legal entity in which such real property is located.” Franklyn, 2015

U.S. Dist. LEXIS 718, at *19. The property at issue here is a Shelby County residence located at
10025 Point Cove, Lakeland, TN 38002. (ECF No. 1-1.) Thus, any debt collector attempting to
collect a debt against any consumer on the property must do so in Shelby County, Tennessee.
Additionally, as noted by the Sixth Circuit, “Tennessee general sessions courts . . . are akin to
small claims courts” and have limited jurisdiction over eviction actions. Fed. Home Loan Mortg.
Corp. v. Gilbert, 656 Fed. App’x. 45, 50 (6th Cir. 2016). Accordingly, the Chief Magistrate
Judge properly recommended the case be dismissed and remanded to the General Sessions Court
of Shelby County Tennessee because that court is a “judicial district” or “similar legal entity”
with subject-matter jurisdiction over the dispute.
Finally, as the Chief Magistrate Judge recommends, this Court concludes that removal is
improper under the circumstances because Defendant Maurice Tyree removed this case to
Federal District Court without demonstrating on the record consent by the other Defendants in
the general sessions action. “[A]ll defendants . . . must join in or consent to the removal of the
action.” 28 U.S.C. § 1446(b)(2)(A). In the present matter, there is more than one Defendant, but
Marurice Tyree, alone, executed the Notice of Removal. Thus, removal in this case is defective.
IV.

CONCLUSION

Upon de novo review of the Magistrate’s Report and Recommendation and Defendant’s
Objection thereto, including his Motion for Removal, the Court hereby ADOPTS the Magistrate
Judge’s Report and Recommendation in its entirety and OVERRULES all objections.
IT IS SO ORDERED on this 17th day of October 2017.

s/John T. Fowlkes, Jr.
John T. Fowlkes, Jr.
United States District Judge