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Durham v. Estate of Losleben

United States District Court, W.D. Tennessee, Eastern Division

March 6, 2017

SUSAN SUMMER DURHAM, as Widow and Administratrix of the Estate of Christopher Durham and on behalf of the Wrongful Death Beneficiaries of CHRISTOPHER DURHAM, deceased, Plaintiff,
ESTATE OF GUS LOSLEBEN, DECEASED, by and through the Estate's Administrator, Lloyd Tatum, Esq.; HARDIN COUNTY FIRE DEPARTMENT; HARDIN COUNTY, TENNESSEE; and JOHN DOES 1-10 Defendants.



         Defendants, Estate of Gus Losleben, deceased, Hardin County Fire Department (“Fire Department”), Hardin County, Tennessee (“Hardin County”), and John Does 1-10, timely removed this action to federal court from the state circuit court in which it was filed. (Docket Entry (“D.E.”) 1.) Thereafter, Plaintiff, Susan Summer Durham, filed a motion to remand this matter to state court. (D.E. 8.) The motion has been fully briefed and is ripe for disposition.

         I. FACTS

         Plaintiff filed the instant lawsuit in the Hardin County Circuit Court on December 30, 2015. (D.E. 1-2 at PageID 6.) According to the complaint, Christopher Durham (“decedent”) was traveling northbound in a log truck in Hardin County, Tennessee on December 9, 2014. (Id. at PageID 7.) Gus Losleben, a Fire Department employee, was driving a fire truck southbound on the same road. (Id.) Losleben crossed into the decedent's lane, colliding head-on with his truck, and both men were killed. (Id.) In her complaint, Durham alleges that at the time of the collision, Losleben was not responding to any “fire service emergency, ” he was driving the truck at an excessive rate of speed, he was aware that the call he was responding to did not require him to drive at a high speed, and he crossed into the decedent's lane. (Id. at PageID 8.) According to Plaintiff, “[the decedent] was killed as a result of said negligence, willful, wanton, reckless and/or deliberately indifferent acts or omissions on the part of Losleben.” (Id.) Specifically, she advances claims of negligence and negligence per se against Losleben and his employers, the Fire Department and Hardin County, arguing that they are liable for damages pursuant to the Tennessee Governmental Tort Liability Act (“TGTLA”), codified at Tennessee Code Annotated sections 29-20-101, et seq. (Id. at PageID 9-10.) She brings further claims against Defendants pursuant to 28 U.S.C. § 1983, asserting that they violated the decedent's rights to be free from bodily harm, injury, or death “under the United States Constitution and the Fourteenth Amendment thereto.” (Id. at PageID 10-11.)

         On March 3, 2016, Defendants filed a timely notice of removal, which stated in pertinent part that

Plaintiff asserts claims under 42 U.S.C. § 1983 alleging that the deceased was denied and deprived of his Constitutional rights as secured by the Fourteenth Amendment to the United States Constitution. Plaintiff also alleges state law torts against these Defendants.
The above-referenced action is one in which this Court has original jurisdiction under 28 U.S.C. § 1331, and is one that can be removed to this Court pursuant to 28 U.S.C. § 1441(b), in that this Court has original jurisdiction over Plaintiff's Constitutional claims. This Court can further exercise it[s] pendent jurisdiction to entertain the Plaintiff's claims arising under state law pursuant to 28 U.S.C. § 1367.

(D.E. 1 at PageID 57.) Thereafter, Durham filed a motion to remand, arguing that Defendants had incorrectly cited 28 U.S.C. § 1441(b), relating to diversity of citizenship, as a basis for removal and that the parties were not in fact diverse. (D.E. 8 at PageID 36-37.) Plaintiff asserted that this error was fatal to the notice of removal and necessitated remand. (Id. at PageID 45.) Additionally, she argued that, even if the notice of removal was not fatally flawed, the Court should decline to exercise supplemental jurisdiction over Plaintiff's TGTLA claims and should remand them to state court. (Id. at PageID 46.) Alternatively, she contended that the entire case-including the federal claims-should be remanded to state court pursuant to 28 U.S.C. § 1441(c). (Id. at PageID 48.)

         II. ANALYSIS

         A. Notice of Removal

         Title 28 U.S.C. § 1441(a) permits a defendant to remove a civil action from state court to federal court if the plaintiff could have originally brought the matter in the federal district court. A Forever Recovery, Inc. v. Twp. of Pennfield, 606 F. App'x 279, 280 (6th Cir. 2015). “It is a federal court's unflagging duty to verify that it has jurisdiction over the case before it, lest it pronounce its opinion in contravention of Article III or the bounds imposed by Congress.” Naji v. Lincoln, __ F. App'x __, 2016 WL 6636762, at *2 (6th Cir. Nov. 9, 2016); see also United States v. Ruiz, 536 U.S. 622, 628 (2002) (stating that “a federal court always has jurisdiction to determine its own jurisdiction”). “If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded.” 28 U.S.C. § 1447(c); see also Fed. R. Civ. P. 12(h)(3) (“If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.”). The removal statutes “are strictly construed against removal, such that doubt should be resolved in favor of remand.” Lexington-Fayette Urban Cnty. Gov't Civil Serv. Comm'n v. Overstreet, 115 F. App'x 813, 816 (6th Cir. 2004). The party seeking removal has the burden of proving that the district court has jurisdiction. Everett v. Verizon Wireless, Inc., 460 F.3d 818, 822 (6th Cir. 2009).

         Both parties acknowledge that Defendants cited 28 U.S.C. § 1441(b) in their notice of removal, which confers jurisdiction in the federal courts where there is complete diversity of citizenship among the parties. They further agree that diversity does not exist in the present action. Durham contends that the citation to the incorrect statute is fatal to the notice of removal and that the case must be remanded. Defendants respond that, although the wrong statute was cited, their notice specifically invoked this Court's original jurisdiction based on federal question and referred to its supplemental jurisdiction over the related state law claims, and thus, the notice of removal is adequate.

         While it is true that the “statutes conferring removal jurisdiction are to be construed strictly, ” Brierly v. Alusuisse Flexible Packaging, Inc., 184 F.3d 527, 534 (6th Cir. 1999), that rule does not compel remand in the instant case. Strictly construing the statutes that govern the jurisdictional limits of the federal courts with respect to removal is not the same as strictly construing the statute that lists the requirements for the contents of the notice of removal. Twenty-eight U.S.C. § 1446 requires that a notice of removal contain “a short and plain statement of the grounds for removal. . . .” As the United States Supreme Court has explained, “[b]y design, § 1446(a) tracks the general pleading requirement stated in Rule 8(a) of the Federal Rules of Civil Procedure.” Dart Cherokee Basin Operating Co., LLC v. Owens, __ U.S. __, 135 S.Ct. 547, 553 (2014) (citing 14C C. Wright Miller, E. Cooper & J. Steinman, Federal Practice and Procedure § 3733 (4th ed. 2009)). Accordingly,

the same liberal rules employed in testing the sufficiency of a pleading should apply to appraise the sufficiency of a defendant's notice of removal. This liberality of application seems particularly sensible since, in most instances, the district court easily can ascertain whether a particular state court case is ...

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