United States District Court, M.D. Tennessee, Nashville Division
REPORT AND RECOMMENDATION
HONORABLE WILLIAM L. CAMPBELL, JR., DISTRICT JUDGE.
Order entered February 22, 2018 (Docket Entry No. 5), the
Court referred this case to the Magistrate Judge for pretrial
proceedings under 28 U.S.C. §§ 636(b)(1), Rule
72(b) of the Federal Rules of Civil Procedure, and the Local
Rules of Court.
February 9, 2018, LaTosha Nichole Tipton removed this case to
this Court from the General Sessions Court for Davidson
County, Tennessee. See Notice of Removal (Docket
Entry No. 1). Presently pending is the motion of Waterford
Crossing Apartments to remand and/or dismiss the case.
See Docket Entry No. 6. For the reasons set forth
below, the undersigned Magistrate Judge respectfully
recommends that the motion for remand be granted and that
this case be remanded to the General Sessions Court for
Davidson County, Tennessee.
January 18, 2018, Waterford Crossing Apartments
(“Waterford Crossings”) sought a detainer warrant
against LaTosha Nichole Tipton and Eugene Tipton in the
General Sessions Court for Davidson County, Tennessee,
related to an apartment located at 2921 Old Franklin Road,
Apt. 621, Cane Ridge, Tennessee (“the State Court
Action”). See Docket Entry No. 1-2 at 2.
Attached to the Notice of Removal is a lease contract between
LaTosha Tipton and Waterford Crossing for the apartment.
See Docket Entry No. 1-5. After the Tiptons failed
to appear at a hearing in the State Court Action on January
31, 2018, the state judge found them in default. See
Docket Entry No. 1-2 at 2.
Tipton thereafter filed a pro se Notice of Removal
on February 9, 2018. See Docket Entry No. 1.
Although the Notice of Removal states that removal is brought
by both Latosha Tipton and Eugene Tipton, the Notice is
signed by only Latosha-Nichole Tipton. Id. LaTosha
Tipton asserts in the Notice of Removal that removal is
brought pursuant to 28 U.S.C. § 1441(b), which refers to
removal based on diversity of citizenship. However, this
reference appears to be a typographical error because there
are no allegations in the Notice of Removal pertaining to
diversity jurisdiction and no reference to 28 U.S.C. §
1332, which provides for original federal jurisdiction on the
basis of diversity of citizenship. Instead, the Notice of
Removal asserts that the State Court Action is being removed
because this Court has original jurisdiction over the state
court action under 28 U.S.C. § 1331 due to a federal
question. Specifically, the Notice of Removal states that
original federal question jurisdiction exists because the
state court action “arises under a treaty of the United
States, commonly referred to as the United Nations Convention
on Contracts for the International Sale of Goods.”
to removal of the action, Waterford Crossings moved on
February 23, 2018, to remand or dismiss the action.
See Docket Entry No. 6. Waterford Crossings raises
three arguments: (1) the Notice of Removal is not signed by
Eugene Tipton and Latosha Tipton is not an attorney who can
represent Eugene Tipton; (2) this Court does not have either
original federal question jurisdiction or diversity
jurisdiction over the State Court Action because the State
Court Action pertains to only matters of state law and
because the requirements for diversity of citizenship have
not been shown; and (3) the instant action is essentially an
impermissible attempt by Latosha Tipton to seek review of the
final judgment entered in the State Court Action and is
barred by the Rooker-Feldman doctrine. Waterford
Crossings requests an order remanding the case back to the
state court or dismissing the case, an order “noting
that the underlying state court judgment for possession of
the property as to Eugene Tipton is a valid, final judgment,
” id. at 1, and an award of attorney's
fees and costs related to its defense of the frivolous and
Rule 7.01(b) provides that a response to the motion of
Waterford Crossings is due no later than fourteen (14) days
after service of the motion. However, LaTosha Tipton has not
filed a response to the motion of Waterford Crossings. Local
Rule 7.01(b) also provides that failure to file a timely
response “shall indicate that there is no opposition to
SUBJECT MATTER JURISDICTION AND REMAND
motion to remand should be granted and this case should be
remanded back to the state court from which it was removed.
This Court has no subject matter jurisdiction to hear the
district courts of the United States are courts of limited
jurisdiction and possess only that power authorized by the
Constitution and by statute. Exxon Mobil Corp. v.
Allapattah Servs., Inc., 545 U.S. 546, 552, 125 S.Ct.
2611, 162 L.Ed.2d 502 (2005). The issue of the Court's
subject matter jurisdiction to hear a case is a threshold
issue that may be reviewed by the Court at any time. See
New Hampshire Co. v. Home Sav. & Loan Co. of Youngstown,
Ohio, 581 F.3d 420, 423 (6th Cir. 2009); Nagalingam
v. Wilson, Sowards, Bowling & Costanzo, 8
Fed.App'x. 486, 487, 2001 WL 493392 (6th Cir. May 1,
2001); Campanella v. Commerce Exch. Bank, 137 F.3d
885, 890 (6th Cir. 1998). With respect to a removed action,
the Court must remand a case if it appears at any time before
final judgment that the Court lacks subject matter
jurisdiction. See 28 U.S.C. § 1447(c).
action may be removed from state court to federal court
pursuant to 28 U.S.C. § 1441 only if the action filed in
state court presents a federal question or demonstrates
diversity of citizenship between the parties and, thus, is an
action over which the federal court would have original
jurisdiction. See 28 U.S.C. § 1441(a); Caterpillar,
Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 96
L.Ed.2d 318 (1987). As the party invoking federal
jurisdiction through removal, LaTosha Tipton bears the burden
of proving that a proper basis for removal exists. See
Rogers v. Wal-Mart Stores, Inc., 230 F.3d 868, 871 (6th
Cir. 2000); B & B Enters. of Wilson Cnty., LLC v.
City of Lebanon, 422 F.Supp.2d 903, 904-05 (M.D. Tenn.
2006). In reviewing a motion for remand, all questions of
fact and ambiguities in the law will be resolved in favor of
the non-removing party. See Coyne v. American Tobacco
Co., 183 F.3d 488, 493 (6th Cir. 1999).
Tipton has not satisfied her burden of showing a basis for
removal. To establish diversity jurisdiction under 28 U.S.C.
§ 1332(a)(1), the opposing parties must be citizens of
different states. See Newman-Green, Inc. v.
Alfonzo-Larrain, 490 U.S. 826, 829, 109 S.Ct. 2218, 104
L.Ed.2d 893 (1989). Citizenship for purposes of the diversity
statute is synonymous with a party's domicile. Kaiser
v. Loomis, 391 F.2d 1007, 1009 (6th Cir. 1968). Although
LaTosha Tipton refers in her Notice of Removal to removal on
the basis of diversity pursuant to 28 U.S.C. § 1441(b),
she has not shown that diversity jurisdiction exists.
although the Notice of Removal also refers to original
federal question jurisdiction, there is no basis upon which
to conclude that the underlying State Court Action asserts a
federal question that would support federal question
jurisdiction. It is well settled that the grounds for removal
of an action may be based only on the face of the underlying
state court complaint which is sought to be removed.
Caterpillar, supra; Collins v. Blue
Cross Blue Shield of Mich., 103 F.3d 35, 36-38 (6th Cir.
1996). The detainer warrant proceeding initiated by Waterford
Crossings in the state court is purely a matter of state law
that does not raise a federal claim or question. The
assertion by LaTosha Tipton that the State Court Action
arises under a treaty of the United States, specifically the
“United Nations Convention on Contracts for the
International Sale of Goods” does not prevent remand of
the case. While such a treaty exists, Latosha Tipton has not
shown how the treaty applies to the state court detainer
action and her contention that federal question jurisdiction
supporting removal arises from this brief reference to the
treaty is nonsensical. "Merely referring to a federal
statute, however, does not establish federal jurisdiction if
the dispute does not involve ‘a substantial question of
federal law.'" Ford v. Hamilton Inv., Inc.,
29 F.3d 255, 258 (6th Cir. 1994) (citing Franchise ...