Gifford v. Greenberg et al

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
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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
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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
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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.
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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
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