3:25-cv-00616•Gifford v. Greenberg et al
Gesamter Gesetzestext
IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE NASHVILLE DIVISION CARLA GIFFORD ) Plaintiff, ) ) v. ) Civil Action No. 3:25-cv-00616 ) Judge Trauger/Frensley DANIEL S. GREENBERG, et al ) Jury Demand Defendants. ) REPORT AND RECOMMENDATION Pending before the Court is the Plaintiff’s objection to Defendant’s petition for removal and motion to remand to state court. Docket No. 6. The Defendant has not responded to the motion to remand but over six months after the motion to remand was filed, Defendant filed a motion for injunctive relief, sanctions and disqualification. Docket No. 9. For the reasons set forth herein, the undersigned recommends that the motion to remand (Docket No. 6) be GRANTED and the Defendant’s motion for injunctive relief, sanctions and disqualification (Docket No. 9) be DENIED. I. BACKGROUND On June 4, 2025, Defendants removed this partition action filed by Carla Gifford in Davidson Chancery Court to this Court based on federal question jurisdiction under 28 U. S. C. § 1331. Docket No. 1. Defendants argue in the notice of removal that the case presents substantial federal questions that provide an independent basis for federal jurisdiction in that the property at issue is the subject of ongoing federal civil rights litigation in this Court regarding an alleged constitutional due process claim and supplemental jurisdiction regarding judicial recusal patterns, constitutional violations and parity of federal forum. Id. at pp. 3-4. Plaintiff filed a motion to remand and for costs on June 24, 2025, arguing that the removal Case 3:25-cv-00616 Document 12 Filed 01/30/26 Page 1 of 5 PageID #: <pageID>
2 is improper because Plaintiff’s Complaint in state court alleges a state law claim for partition concerning real property in Davidson County, Tennessee. Docket No. 6. Plaintiff argues that because the state court partition action regarding real property located in Davidson County, Tennessee does not arise under the Constitution, laws or treaties of the United States, this Court does not have federal question jurisdiction to hear the matter. Id. The Defendants have not responded to the motion to remand. However, over six months after the deadline to respond to the motion for remand, Defendant Daniel Greenberg filed a motion for injunctive relief, sanctions and attorney disqualification “based on improper state court proceeding that violate this Court’s jurisdiction and evidence of attorney collusion.” Docket No. 9, p. 1. As for grounds for the relief sought Mr. Greenberg argues that attorneys have “improperly filed an interpleader action in Tennessee State court involving the same parties and subject matter, in direct contravention of federal court jurisdiction and this Court’s authority.” Id. at p. 1. II. LAW AND ANALYSIS A. STANDARD OF REVIEW Local Rule 7.01 states, in pertinent part: (3) Response. Except for motions for reconsideration (to which no response shall be filed unless ordered by the Court), any party opposing a motion must serve and file a memorandum of law in response, and, if necessary to support assertions of fact, affidavits and depositions, not later than fourteen (14) days after service of the motion, except, that in cases of a motion for summary judgment, that time shall be twenty-one (21) days after service of the motion, unless otherwise ordered by the Court. If a timely response is not filed, the motion shall be deemed to be unopposed, except for motions to reconsider, for which no response shall be permitted unless ordered by the Court. L. R. 7.01(a)(3). While pro se litigants are generally given substantial leeway, particularly as to the standards to which their pleadings are held, they still must abide by the Federal Rules of Civil Case 3:25-cv-00616 Document 12 Filed 01/30/26 Page 2 of 5 PageID #: <pageID>
3 Procedure and applicable local rules. See Williams v. Curtin, 631 F. 3d 380, 383 (6th Cir. 2011); Wells v. Brown, 891 F. 2d 591, 594 (6th Cir. 1989). Plaintiff filed her Motion on June 24, 2025, which is more than 14 days ago. Docket No. 6. Defendants did not respond to the Motion. Therefore, the Court deems the Motion to be unopposed. There is presumption that a federal court lacks jurisdiction in a particular case until it has been demonstrated that jurisdiction over the subject matter exists. Lehigh Min & Manuf’g Co. v Kelly, 160 U. S. 327, 337 (1895). The complaint must affirmatively allege facts showing the existence of jurisdiction. McNutt v General Motor Acceptance Corp., 298 U. S. 178 (1936); Fed. R. Civ. P. 8(a)(1). “As a general rule, removability is determined by the pleadings filed by the Plaintiff” and “all doubts arising from defective, ambiguous and inartful pleadings should be resolved in favor of the retention of state court jurisdiction.” Union Planters National Bank v. CBS, Inc., 557 F. 2d 84, 89 (6th Cir. 1977)(emphasis added). The party claiming jurisdiction bears the burden to demonstrate that the Court has jurisdiction over the subject matter where these factors are challenged. Thomson v Gaskill, et al. 318 U. S. 442 (1942). A court shall dismiss or remand the action where it appears by suggestion of the Parties or otherwise that the court lacks jurisdiction of the subject matter. Fed. R. Civ. P. 12(h)(3). The procedures after removal are governed by 28 U. S. C. § 1447. Other than lack of subject matter jurisdiction, a motion to remand based on any defect must be made within thirty (30) days after the filing of the notice of removal under § 1446(a). 28 U. S. C. § 1447(c). Federal courts have original subject matter jurisdiction when the complaint alleges a federal question. 28 U. S. C. § 1331. Neither party alleges diversity jurisdiction under 28 U. S. C. § 1332. B. The Motion to Remand A review of the action filed by the Plaintiff in the Davidson County Chancery Court Case 3:25-cv-00616 Document 12 Filed 01/30/26 Page 3 of 5 PageID #: <pageID>
4 confirms that it is in fact a complaint for partition of real property based upon provisions of the Tennessee code and that no facts or claims are based on a federal question alleged against Defendants. Docket No. 1-1. Because the Defendants have not responded to the motion to remand, they cannot meet their burden to demonstrate that the Court has jurisdiction over the subject matter. Thomson, supra. The Court can only look to the Plaintiff’s complaint to determine whether it has federal question subject matter jurisdiction as to the complaint. McNutt, supra; Fed. R. Civ. P. Rule 8(a)(1). Defendants’ arguments and affirmative defenses in the notice of removal potentially raising federal law, including that Defendants federal constitutional rights were violated, cannot form a basis for federal question subject matter jurisdiction. See Holmes Group, Inc. v. Vornado Air Circulation Systems, Inc., 535 U. S. 826, 830-31 (2002). Even if federal laws are implicated in the state court action, the Sixth Circuit presumes that state courts enjoy jurisdiction concurrent with that of the federal courts unless Congress has chosen to make federal jurisdiction exclusive. Federal National Mortgage Assoc. v LeCrone, 868 F. 2d 190, 192 (6th Cir. 1989). Defendants have not shown that this Court has exclusive jurisdiction over the partition proceedings brought by the Plaintiff under Tennessee law and there does not appear to be anything to prevent the Chancery Court from addressing Defendants’ affirmative defenses including their claims that their federal constitutional rights were violated. Therefore, remand is appropriate. Nothing in the notice of removal or motion for injunctive relief, sanctions and disqualification support removal. In addition to an order remanding this case to state court, the Plaintiff seeks an award of attorneys’ fees. Under 28 U S. C. § 1447(c), the district court has discretion to award fees for wrongful removal. “Absent unusual circumstances, courts may award attorney's fees under § 1447(c) only where the removing party lacked an objectively reasonable basis for seeking removal. Case 3:25-cv-00616 Document 12 Filed 01/30/26 Page 4 of 5 PageID #: <pageID>
5 Martin v Franklin Capital Corp., 546 U. S. 132, 141 (2005). Exercising its discretion considering the defendant is proceeding pro se and is involved in other litigation in this Court, the Court declines to recommend an award of costs and fees in favor of Plaintiff. III. CONCLUSION For the reasons set forth herein, the undersigned recommends that the Plaintiff’s motion for remand (Docket No. 6) be GRANTED and the Defendant’s motion for injunctive relief, sanctions and disqualification (Docket No. 9) be DENIED. Under Rule 72(b) of the Federal Rules of Civil Procedure, any party has fourteen (14) days from receipt 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 from receipt of any objections filed in this Report in which to file any response to said objections. Failure to file specific objections within fourteen (14) days of receipt of this Report and Recommendation can constitute a waiver of further appeal of this Recommendation. 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). JEFFERY S. FRENSLEY United States Magistrate Judge Case 3:25-cv-00616 Document 12 Filed 01/30/26 Page 5 of 5 PageID #: <pageID>
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