United States District Court, M.D. Tennessee, Nashville Division
H. Sharp, Chief United States District Judge
before the court is plaintiff Sumner County, Tennessee's
motion to remand this matter to the Circuit Court for Sumner
County, Tennessee (Docket No. 4), to which defendant Susan
Small-Hammer, acting pro se and in forma
pauperis, has responded in opposition (Docket No. 6).
County filed a complaint against Small-Hammer on August, 31,
2016, in the Circuit Court for Sumner County. (Docket No. 1,
Attach.). Small-Hammer filed an answer and counterclaim on
September 29, 2016. (Id.) Sumner County filed a
motion to dismiss Small-Hammer counterclaim, to which
Small-Hammer responded in opposition. (Id.) The
Sumner County Circuit Court dismissed Small-Hammer's
counterclaim by order entered on December 13, 2016.
Small-Hammer filed a Notice of Removal to this court on
January 20, 2017. (Id.)
right of removal of a suit from state court to federal court
is a statutory right.” Regis Assocs. v.
Rank Hotel (Management), Ltd., 894 F.2d 193, 195
(6th Cir. 1990)(citing 28 U.S.C. § 1441). A
notice of removal shall be filed within 30 days after receipt
by the defendant, by service or otherwise, of a copy of the
initial pleading setting forth the claim for relief. 28
U.S.C. § 1446(b). The goal of the removal time period is
to give defendants an adequate amount of time to file a
notice of removal. Nicholstone Cos., Inc. v. ECAM
Publications, Inc., 742 F.Supp. 432, 433 (M.D. Tenn.
right to remove a case may be waived by a party, although the
waiver must be clear and unequivocal. City of Cleveland
v. Ameriquest Mortgage Securities, Inc., 615 F.3d 496,
501 (6th Cir. 2010)(citation omitted);
Ellora's Cave Publ'g v. Dear Author Media
Network, LLC, No. 5:14CV2331, 2015 WL 106062 (N.D. Ohio
Jan. 7, 2015). “In determining what acts constitute a
‘clean and unequivocal' intent to waive a right to
remove, courts have generally found that preliminary matters,
such as filing an answer, will not suffice.” See,
e.g., Ellora's Cave Publ'g, 2015 WL 106062 (N.D.
Ohio Jan. 7, 2015) (stipulation to continue TRO hearing,
serving subpoenas, requesting depositions of plaintiffs
before TRO hearing, and procuring declarations from
third-party witnesses); Bolivar Sand Co., Inc. v. Allied
Equipment, Inc., 631 F.Supp. 171, 173 (W.D. Tenn.
1986)(citing Estevez-Gonzales v. Kraft, Inc., 606
F.Supp. 127 (S.D. Fla. 1985)(answer, motion for extension of
time, service of interrogatories); Gore v. Stenson,
616 F.Supp. 895 (S.D. Tex. 1984)(answer); Adams v.
Lederle Laboratories, 569 F.Supp. 234 (W.D. Mos.
1983)(motion to set aside class certification); Bedell v.
H.R.C. Limited, 522 F.Supp. 732 (E.D. Ky. 1981)(motion
to abate and dismiss); Beasley v. Union Pac. R. Co.,
497 F.Supp. 213 (D. Neb. 1980)(motion to vacate temporary
restraining order); Haun v. Retail Credit Co., 420
F.Supp. 859 (W.D. Pa. 1976)(answer); Baker v. Nat'l
Boulevard Bank, 399 F.Supp. 1021 (N.D. Ill. 1975)(motion
to vacate preliminary injunction); Kemp v. Utah Constr.
& Mining Co., 225 F.Supp. 250 (D. Or. 1963)(motion
for change of venue)).
“affirmative defensive actions, such as filing of
cross-claims or permissive counterclaims, have been found to
waive a defendant's right to remove.” Bolivar
Sand Co., Inc., 631 F.Supp. at 173 (finding that motions
for directed verdict and mistrial waived right to remove).
See e.g., Harris v. Brooklyn Dressing
Corp., 560 F.Supp. 940 (S.D. N.Y. 1983)(permissive
counterclaim); George v. Al-Saud, 478 F.Supp. 773
(N.D. Cal. 1979)(permissive counterclaim); Baldwin v.
Perdue, Inc., 451 F.Supp. 373 (E.D. Va.
1978)(cross-claim). Actions that may result in a disposition
on the merits of the state court action, in whole or in part,
also have been found to evidence the requisite intent.
See e.g., Kiddie Riddes USA, Inc. v.
Elektro-Mobiltechnik GMBH, 579 F.Supp. 1476 (C.D. Ill.
1984)(motion to vacate order of attachment); In re
73rd Precinct Station House, 329
F.Supp. 1175 (E.D. N.Y. 1971)(motion to vacate notice of
taking); Southwest Truck Body Co. v.
Collins, 291 F.Supp. 658 (W.D. Mos. 1968)(petition for
writ of prohibition following denial of motions to quash
contempt citations and to dissolve injunctions). As one court
The critical factors in determining whether a particular
defensive action in the state court should operate as a
waiver of the right to remove is the defendant's intent
in making the motion. If the motion is made only to preserve
the status quo ante and not to dispose of the matter
on its merits, it is clear that no waiver has occurred. On
the other hands, if a motion seeks a disposition, in whole or
in part, of the action on its merits, the defendant may not
attempt to invoke the right to remove after losing on the
Bolivar Sand Co., Inc., 631 F.Supp. at 173.
party seeking removal bears the burden of establishing its
right to removal. Byrd v. Tenn. Wine & Spirits
Retailers, Ass'n, No. 3:16-cv-02738, 2017 WL 67993,
at * 3 (M.D. Tenn. Jan. 6, 2017)(Sharp, J.). The removal
statute is to be strictly construed, with all doubts resolved
against removal. Id. On a motion to remand, the
defendants bears the burden of establishing that removal was
proper. Atkinson v. Morgan Asset Mgmt., Inc., 664
F.Supp.2d 898, 902 (W.D. Tenn. 2009).
motion to remand, Sumner County first contends that
Small-Hammer filed her Notice of Removal late. Indeed, she
filed her Notice of Removal 113 days after filing her answer
and over 30 days after receiving notice of the complaint.
Thus, her Notice of Removal is late. See 28 U.S.C.
County also contends that Small-Hammer waived her right to
removal by her actions in state court prior to filing her
Notice of Removal. Small-Hammer argues that, because her
state court case is “still open” and the judge
has not heard any argument from her or the defendant
regarding the defendant's original complaint, she
“could not have fully participated in a case that has
yet to be heard.” (Docket No. 6 at p. 3). However,
before informing the state court of her intent to remove,
Small-Hammer answered the Sumner County's original
complaint and filed a counterclaim. Small-Hammer briefed and
argued against Sumner County's motion to dismiss the
counterclaim, and the state court ruled in Sumner
County's favor. Many if not most of the facts pertinent
to the counterclaim are facts pertinent to the original
complaint filed by Sumner County. It was only after Sumner
County's motion to dismiss the counterclaim had been
granted that Small-Hammer announced her intent to remove.
Having lost that motion, Small-Hammer may not now
“appeal” the state court's decision by
court finds, therefore, that Small-Hammer waived her right to
remove by her affirmative defensive actions in the state
court. Accordingly, Sumner ...