United States District Court, W.D. Tennessee, Western Division
U.S. BANK NAT'L ASS'N, Plaintiff,
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
T. Fowlkes, Jr. United States District Judge
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.
FINDINGS OF FACT
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
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.
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.)
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
Court agrees with the Chief Magistrate Judge's conclusion
that federal subject-matter 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.
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.
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.
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
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 ...