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 a Motion to Remand filed by
Plaintiff Troubadour Investments, LLC
(“Troubadour”). Docket No. 7. Troubadour has also
filed a Supporting Memorandum of Law. Docket No. 8. Tracy
Ewing, the pro se Defendant, has filed a “Notice Not to
Remand 28 U.S.C. § 1447(c), ” which the Court will
construe as a Response to the instant Motion. Docket No. 11.
case is a detainer action brought by Troubadour originally in
Davidson County General Sessions Court, alleging failure to
pay rent by Mr. Ewing. Docket No. 9, p. 4. On January 31,
2018, judgment was granted to Troubadour for $2, 610.00 and
possession of the rental property. Id. Mr. Ewing
appears to have appealed the judgment to Davidson County
Circuit Court (see Docket No. 9, p. 2), and,
unsatisfied with the outcome, removed the case to this Court
on March 8, 2018. Docket No. 1. The Notice of Removal is
barely coherent but seems to express Mr. Ewing's desire
to further appeal the judgment of The Davidson County General
Sessions Court, indicating that he did not fully understand
the appeals process due to his pro se status, and suggesting
that court personnel purposely failed to give him the
appropriate information. Id.
contends that this court lacks subject matter jurisdiction
over the dispute, as the parties are not diverse and the
Complaint does not raise a federal question. Docket No. 8.
Mr. Ewing's Response is challenging to decipher.
See Docket No. 11. For example, he asserts that
“[t]here is no controversy between the consumer class
Tracy Ewing 15 U.S.C. § 1692a(3) and 15 U.S.C.
§ 1692c(d) and Troubadour Investments LLC, ” yet
proceeds to allude to a number of federal statutes (at least
nine) which he seems to allege Troubadour has violated.
Id. His principle allegation appears to be violation
of the Fair Debt Collection Practices Act (15 U.S.C. §
1692). Id. at 3. Mr. Ewing does not allege diversity
of citizenship between the parties. Id.
LAW AND ANALYSIS
from state to federal court is appropriate when a civil
action is “brought in a state court of which the
district courts of the United States have original
jurisdiction.” See 28 U.S.C. § 1441(a).
Federal courts have original jurisdiction over civil actions
arising under the Constitution, laws, or treaties of the
United States. 28 U.S.C. § 1331. For such jurisdiction
to exist, pursuant to “arising under”
jurisdiction, the court looks to the allegations in the
plaintiff's complaint. Tennessee v. Britlee,
Inc., Case No. 3:05-0846, 2006 U.S. Dist. LEXIS 96946 at
*3 (M.D. Tenn. Jan. 5, 2006), citing Gully v. First Nat.
Bank of Meridian, 299 U.S. 109, 112, 57 S.Ct. 96, 97
(1936) (the “right or immunity created by the
Constitution of laws of the United States must be an element,
and an essential one, of the plaintiff's cause of
action.”). Where the initial complaint is based only on
state law, a defense based upon federal law does not create
federal question jurisdiction. Phillips Petroleum Co. v.
Texaco, Inc., 415 U.S. 125, 127-28, 94 S.Ct. 1002
Troubadour has brought a detainer action exclusively under
state law. Although Mr. Ewing alleges violations of numerous
federal statutes, these allegations are not components of the
Complaint in this matter. A claim “arises under federal
law only when the plaintiff's well-pleaded complaint
raises issues of federal law.” Metropolitan Life
Ins. Co. v. Taylor, 481 U.S. 58, 63, 107 S.Ct. 1542
(1987). Troubadour's allegations in the detainer action
make no reference whatsoever to federal law but exclusively
allege violations of state or municipal law, as is
appropriate for a landlord bringing a detainer action against
a tenant. Removal statutes are to be strictly construed, and
“[a]ll doubts as to propriety of removal are resolved
in favor of remand.” Coyne v. American Tobacco
Co., 183 F.3d 488, 493 (6th Cir. 1999). When removing an
action to federal court, the burden falls on the party
removing the action to prove that the jurisdictional facts it
alleges are true such that removal was proper. See Rogers
v. Wal-Mart Stores, Inc., 230 F.3d 868, 871 (6th Cir.
2000). Mr. Ewing has failed to meet that burden, in that the
federal statute violations that he alleges would be
considered defensive matters, not an element of
Troubadour's proof in the detainer action.
foregoing reasons, the undersigned recommends that
Troubadour's Motion to Remand (Docket No. 7) be GRANTED.
Fed.R.Civ.P. 12(h)(3) provides that “whenever it
appears by suggestion of the parties of otherwise that the
court lacks jurisdiction of the subject matter, the court
shall dismiss the action.” Therefore, the undersigned
further recommends that this cause of action be DISMISSED.
Rule 72(b) of the Federal Rules of Civil Procedure, any party
has fourteen (14) days after service of this Report and
Recommendation in which to file any written objections to
this Recommendation with the District Court. Any party
opposing said objections shall have fourteen (14) days after
service of any objections filed to this Report in which to
file any response to said objections. Failure to file
specific objections within fourteen (14) days of service of
this Report and Recommendation can constitute a waiver of
further appeal of this Recommendation. See Thomas v.
Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985),
reh'g denied, 474 U.S. 1111 (1986); 28 U.S.C.
§ 636(b)(1); Fed.R.Civ.P. 72.