United States District Court, M.D. Tennessee, Nashville Division
Brown United States Magistrate Judge.
brought this action originally in the Chancery Court for
Rutherford County on May 28, 2016 alleging violations of the
Fourteenth Amendment, the Tennessee Human Rights Act (THRA),
Tenn. Code Ann. §§ 4-21-101 et sec, and
the Tennessee Public Protection Act (TPPA), Tenn. Code Ann.
§§ 50-1-304 et seq. (Doc. 1-2) Defendant
filed a notice of removal under 28 U.S.C. §§
1441(a), (c) and 1443 on May 25, 2015. (Doc. 1) Thereafter,
this case was transferred to the undersigned with the consent
of the parties for all proceedings and decision in this
action. (Docs. 20-21)
pending before the court is defendant's motion for
partial summary judgment seeking to dismiss plaintiff's
claims under THRA and TPPA on statute-of-limitations grounds.
(Doc. 11) Plaintiff responded in opposition to
defendant's motion on August 11, 2016 (Doc. 23), and
plaintiff replied on August 25, 2016 (Doc. 28).
Defendant's motion for partial summary judgment is now
properly before the court. However, in reviewing the record
in response to defendant's motion for partial summary
judgment, the undersigned has determined that this action
should be remanded to the Chancery Court for Rutherford
County for want of subject matter jurisdiction.
courts are courts of limited jurisdiction and the law
‘presume[s] that a cause lies outside this limited
jurisdiction.'” Vander Boegh v. Energy
Solutions, Inc., 772 F.3d 1056, 1064 (6thCir.
2014)(quoting Kokkonen v. Guardian Life Ins. Co. of
Am., 511 U.S. 375, 377 (1994)). “The burden of
establishing the contrary rests upon the party asserting
jurisdiction.” Vander Boegh, 772 F.3d at 1064
(quoting Kokkonen, 511 U.S. at 377). “Because
subject-matter jurisdiction is ‘an [Article III] as
well as a statutory requirement . . . no action of the
parties can confer subject-matter jurisdiction upon a federal
court.'” Vander Boegh, 772 F.3d at 1064
(quoting Ins. Corp. of Ireland, Ltd. v. Compagnie des
Bauxites de Guinee, 456 U.S. 694, 702 (1982)).
“‘Subject-matter jurisdiction can never be waived
or forfeited, ' and courts are obligated to consider
sua sponte whether they have such
jurisdiction.” Vander Boegh, 772 F.3d at 1064
(quoting Gonzalez v. Thaler, 565 U.S. 134, 141
(2012)). More particularly, “a federal court always has
jurisdiction to determine its own jurisdiction.”
United States v. Ruiz, 536 U.S. 622, 628 (2002).
foregoing applies to removal actions. Although remand of a
“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, ” “[i]f at
any time before final judgment it appears that the district
court lacks subject matter jurisdiction, [then] 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.”).
Even where no challenge to jurisdiction has been made by a
litigant, the question should be raised by the Court sua
sponte. See Rote v. Zel Custom Mfg. LLC, 816
F.3d 383, 392 (6th Cir.), cert. denied sub
nomine, Direccion General de Fabricaciones Militares
v. Rote, 137 S.Ct. 199 (2016). The Court has a
responsibility to make an independent subject matter
jurisdiction determination, rather than relying solely on a
conclusory assertion of the defendant. See McNutt v. Gen.
Motors Acceptance Corp. of Indiana, 298 U.S. 178, 184
(1936). The “removal statutes are strictly construed
against removal, such that doubt should be resolved in favor
of remand.” Lexington-Fayette Urban Cty. Gov't
Civil Serv. Comm'n v. Overstreet, 115 Fed.Appx. 813,
816 (6th Cir. 2004). It is defendant's burden
to provide the Court with “competent proof” of
jurisdiction. McNutt, 298 U.S. at 189; Ahearn,
et al. v. Charter Twp. of Bloomfield, 100 F.3d 451,
453-54 (6th Cir. 1996). The court is not required
to - and may not - engage in speculation or guesswork to
determine its jurisdiction. See Strebler v. Morgan
Stanley & Co., Inc., 2014 WL 4545932 *5 (N.D. Ohio,
Sept. 12, 2014). “[B]ecause lack of jurisdiction would
make any decree in the case void and the continuation of the
litigation in federal court futile, the removal statute
should be strictly construed and all doubts resolved in favor
of remand.” Eastman v. Marine Mech. Corp., 438
F.3d 544, 549-50 (6th Cir. 2006)(citations
petition for removal asserts that “[t]he defendants,
acting by and through counsel, pursuant to 28 U.S.C. §
1441(a), 28 U.S.C. § 1441(c), and 28 U.S.C. § 1443
states the following . . . .” Title 28 U.S.C. §
1446 requires that a defendant “desiring to remove any
civil action from state court . . . file a notice of removal
. . . .containing a short and plain statement of the grounds
for removal, together with a copy of all process, pleadings,
and orders served upon such defendant or defendants in such
action.” Defendant's petition for removal does not
contain “a short plain statement of the grounds for
removal.” Because the petition for removal fails to
comply with § 1446, the court is unable to determine
what the basis for jurisdiction may be from defendant's
“by and through counsel” statement above.
addition to the foregoing, § 1443 provides the following
in civil rights cases such as the one before the court:
Any of the following civil actions . . . commenced in a State
court may be removed by the defendant to the district court
of the United States for the district and division embracing
the place wherein it is pending;
(1) Against any person who is denied or cannot enforce in the
courts of such State a right under any law providing for the
equal civil rights of citizens of the United States, or of
all persons within thereof . . . .
(2) For any act under the color of authority derived from any
law providing for equal rights, or for refusing to do any act
on the ground that it would be inconsistent with such law.
1443(1) applies only when a defendant demonstrates two
things: first, “that the right allegedly denied the
removal petitioner arises under federal law providing for
specific civil rights stated in terms of racial
equality”; and second, that “the
removal petitioner is denied or cannot enforce specific
federal rights in State Courts.” Johnson v.
Mississippi, 421 U.S. 213, 219 (1975); see also
Georgia v. Rachel, 384 U.S. 780, 792, 803 (1966);
City of Greenwood, Miss. v. Peacock, 384 U.S. 808,
825 (1966). Section 1443(2) confers a privilege of removal
only upon federal officers, agents, and those authorized to
act with or for them in affirmatively executing duties under
any federal law providing for equal civil rights. City of
Greenwood, Miss., 384 U.S. at 824. Because defendant
fails to assert standing under either part of § 1443(1),
and because defendant clearly is not a federal officer,
agent, or one authorized to act on behalf of a federal
officer or agent, removal under § 1443 was not proper
and, as such, jurisdiction cannot be based on defendant's
reference to § 1443.
petition for removal does provide the following
jurisdictional statement: “This Court has jurisdiction
over the above-styled cause of action pursuant to 28 U.S.C.
§§ 1331 and 1367.” Section 1331 provides that
“[t]he district courts shall have original jurisdiction
of all civil actions arising under the Constitution, laws, or
treaties of the United States, ” and § 1367
provides for “supplemental jurisdiction over all other
claims that are so related to claims in the action within
such original jurisdiction that they form part of the same
case or controversy . . . .” Once again, however, there
is nothing in defendant's reference to these two general
jurisdiction statutes that establishes the grounds for
original jurisdiction in this case under § 1331 and, by
inference, § 1367. Although § 1367 applies to mixed
federal-state claims before district courts, the question
here is: “What is the basis for jurisdiction under
§ 1331 in this specific case, i.e., what is the
federal question at issue?”
only conclusory and illusory suggestions of jurisdiction in
the petition for removal, the undersigned turns to the
amended complaint itself which defendant has provided. (Doc.
1-2) As previously established, the federal removal statute -
§ 1441- permits a defendant to remove a civil action
from state court to federal court if the plaintiff could have
brought the matter in the federal district court. A
Forever Recovery, Inc. v. Twp. of Pennfield, 606
Fed.Appx. 279, 280 (6thCir. 2015). In determining
whether a complaint arises under federal law, courts apply
the “well-pleaded complaint” rule. Loftis v.
United Parcel Serv., Inc., 342 F.3d 509, 514-15
(6th Cir. 2003). Federal question jurisdiction
arises where a “‘well-pleaded complaint
establishes either that federal law creates the cause of
action or that the plaintiff's right to relief
necessarily depends on resolution of a substantial question
of federal law.'” Palkow v. CSX Transp.
Inc., 431 F.3d 543, 552 (6th Cir.
2005)(quoting Franchise Tax Bd. v. Constr. Laborers
Vacation Trust, 463 U.S. 1, 27-28 (1983)).
“[F]ederal jurisdiction exists only when a federal
question is presented on the face of the plaintiff's
properly pleaded complaint.” Rivet v. Regions Bank
of Louisiana, 522 U.S. 470, 475 (1998)(quoting
Caterpillar v. Williams, 482 U.S. 386, 392 (1987)).
The well-pleaded complaint rule recognizes that the plaintiff
is the master of his complaint. Loftis, 342 F.3d at
515. Federal jurisdiction “exists when ‘a
well-pleaded complaint establishes either that federal law
creates the cause of action of that the plaintiff's right
to relief necessarily depends on resolution of a substantial
question of federal law.'” Borden v. Allstate
Ins. Co., 589 F.3d 168, 172 (5th Cir.
2009)(quoting Franchise Tax Bd., 463 U.S. at 27-28).
A mere incidental reference to a violation of federal law or
the United States Constitution does not convert a state
complaint into a federal cause of action if the federal claim
is not a necessary element of the sate law claim. Diaz v.
Sheppard, 85 F.3d 1502, 1505 (11th Cir.
asserts the following in the jurisdiction and venue section
of his amended complaint: “This action is filed
pursuant to . . . the United States Constitution Amendment
XIV . . . .” (Doc. 1-2, ¶ 3, p. 1) Plaintiff
alleges two counts of violations under the ...