United States District Court, M.D. Tennessee, Nashville Division
REPORT AND RECOMMENDATION
JEFFERY S. FRENSLEY United States Magistrate Judge
matter is before the Court upon several motions by the
Parties. Defendant J.P. Morgan Chase, N.A.
(“Chase”) has filed a Motion to Dismiss and
Supporting Memorandum of Law. Docket Nos. 4, 5. Although the
pro se Plaintiff did not respond to that Motion within the
time allotted for response, Plaintiff has subsequently filed
a document that appears to respond to Chase's Motion:
“Memorandum in Support of Plaintiff's Motion in
Opposition.” Docket No. 30. Chase has also filed a
“Motion to Dismiss for Failure to Prosecute and
Incorporated Memorandum of Law.” Docket No. 14.
Plaintiff has filed a Response in Opposition. Docket No. 16.
Chase has filed a Reply. Docket No. 19. Plaintiff has filed a
document that appears to be related to Chase's Motion to
Dismiss for Failure to Prosecute: “Plaintiff's
Reply to Chase Bank's Response.” Docket No. 29.
has filed a “Motion to Recind [sic] Notice and
Order of Removal.” Docket No. 22. Explaining that this
document appears to seek remand to state court, Chase filed a
“Response in Opposition to Motion to Remand.”
Docket No. 24. Plaintiff then filed “Plaintiff's
Reply to Defendant Chase Bank's Response [RE24] to Motion
Concerning Removal Jurisdiction.” Docket No. 27.
Franklin American Mortgage Company (“FAMC”) has
filed a Motion to Dismiss pursuant to Fed.R.Civ.P. 12(b)(6),
in which it specifically joins in the Motions to Dismiss
filed by Chase. Docket No. 31. FAMC has also filed a
Supporting Memorandum of Law. Docket No. 32. Apparently in
response, Plaintiff has filed a “Memorandum in Support
of Plaintiff's Motion in Opposition to Defendant's
Motion to Dismiss as Time Barred” (Docket No. 33) and a
“Motion in Opposition to Defendant Franklin
American's Motion to Dismiss as Time Barred”
(Docket No. 34).
filed this cause in Davidson County Chancery Court on
September 30, 2016. Docket 1-2. Chase removed it to this
Court on October 31, 2016, citing 28 U.S.C. § 1331
(diversity jurisdiction) and § 1332 (federal question
jurisdiction). Docket No. 1 (Notice of Removal).
Specifically, Chase states that it is a citizen of Ohio, and
that while Plaintiff is a citizen of Tennessee and FAMC is
“a Tennessee corporation with its principal office in
Tennessee, ” FAMC's citizenship “may be
disregarded because it has been fraudulently joined by
Plaintiff in effort [sic] to defeat diversity
jurisdiction.” Id. at 3. Chase argues that
Plaintiff's claim against FAMC is one of fraud, that
Plaintiff's Complaint does not properly plead fraud, and
that Plaintiff therefore “fails to plead a colorable
claim against [FAMC] under Tennessee law, and [FAMC's]
citizenship may be disregard [sic] for purposes of
diversity jurisdiction.” Id. at 3-4. Chase
further contends that the Court has federal question
jurisdiction because Plaintiff's claims “appear to
be based on issues related to the FHA insured mortgage loan
program. Plaintiff must necessarily prove a violation of
federal law in order to prevail on his claims.”
Id. at 5.
did not respond to the assertion of diversity in the Notice
of Removal until filing his “Motion to Recind
[sic] Notice and Order of Removal” on February
21, 2017. Docket No. 22. In this document, Plaintiff
Plaintiff did not add [FAMC] fraudulently nor as an attempt
to defeat diversity jurisdiction. Plaintiff actually
believes, as his complaint alleges, that but for the
fraudulent acts of [FAMC] the chain of events that resulted
in [Chase] claims upon his real property would have never
Plaintiff further asserts that he seeks no monetary damages
from Chase. From it he seeks only injunctive relief and for
such time as to fully litigate his claims against [FAMC],
from which any and all monetary damages are sought.
Plaintiff finally asserts that he need not prove that federal
law violation(s) are at issue in this cause. Proving that
[FAMC] committed fraud in this cause is a matter of Tennessee
[sic] and does not raise a “federal
question” as contemplated by 28 U.S.C. § 1332 and
as conceded by Chase in its Notice of Removal ¶10.
. . .
Plaintiff now sues [FAMC], not to defeat the diversity
requirement pursuant to the F.R.C.P, [sic] but
because it was the fraudulent acts of [FAMC] that are the
beginnings of the Daisy Chain that introduces to defendant
Chase and that has resulted in the outcomes plaintiff has
faced hear [sic] to date. In fact [FAMC] is an
essential actor in this melodrama such the [sic]
compulsory joinder provisions of the F.R.C.P. should apply
Id. at 1-2.
responds that “Plaintiff's Motion to Remand is, in
reality, a desperate effort to evade dismissal, ” and
reiterates its arguments regarding federal question and
diversity jurisdiction. Docket No. 24, p. 1-4.
Law and Analysis
Applicable Law of Jurisdiction and Fraudulent
Court has original jurisdiction over all civil actions in
which the matter in controversy exceeds $75, 000 and is
between citizens of different states. 28 U.S.C. §
1332(a)(1). Diversity jurisdiction requires complete
diversity: the citizenship of each plaintiff must be diverse
from the citizenship of each defendant. Caterpillar Inc.
v. Lewis, 519 U.S. 61, 68, 117 S.Ct. 467 (1996);
Coyne ex rel. Ohio v. American Tobacco Co., 183 F.3d
488, 492 (6th Cir. 1999). The party “seeking to bring a
case into federal court carries the burden of establishing
diversity jurisdiction.” Coyne, 183 F.3d at
493 (internal quotation marks and citation omitted). Further,
the issue of subject matter jurisdiction may be raised
“at any time, by any party or even sua sponte
by the court itself.” Franzel v. Kerr Mfg.
Co., 959 F.2d 628, 629 (6th Cir. 1992).
joinder is a judicially created doctrine that provides a
limited exception to the requirement of complete
diversity.” Garner v. SDH Servs. East, LLC, 55
F.Supp.3d 1016, 1021 (M.D. Tenn. 2014). Under this doctrine,
the court must determine whether the plaintiff has “at
least a colorable cause of action under state law against the
non-diverse defendant.” Id., citing
Jerome-Duncan, Inc. v. Auto-By-Tel., L.L.C., 176 F.3d
904, 907 (6th Cir. 1999). Thus, this Court must look to
Tennessee law to determine whether FAMC is a proper
defendant, or whether, as argued by Chase, it was
fraudulently joined. “The non-moving party's actual
motive for joining a non-diverse party is immaterial to the
court's determination regarding fraudulent
joinder.” Id. “Therefore, the question
is whether there is arguably a reasonable basis for
predicting that the state law might impose liability on the
facts involved.” Alexander v. Elec. Data Sys.
Corp., 13 F.3d 940, 949 (6th Cir. 1994) (citation and