JOE B. BROWN, Magistrate Judge.
Plaintiff brought this action originally in the Chancery Court for Rutherford County on May 28, 2016 alleging violations of the Fourteenth Amendment, the Tennessee Human Rights Act (THRA), Tenn. Code Ann. §§ 4-21-101 et sec, and the Tennessee Public Protection Act (TPPA), Tenn. Code Ann. §§ 50-1-304 et seq. (Doc. 1-2) Defendant filed a notice of removal under 28 U.S.C. §§ 1441(a), (c) and 1443 on May 25, 2015. (Doc. 1) Thereafter, this case was transferred to the undersigned with the consent of the parties for all proceedings and decision in this action. (Docs. 20-21)
Presently pending before the court is defendant's motion for partial summary judgment seeking to dismiss plaintiff's claims under THRA and TPPA on statute-of-limitations grounds. (Doc. 11) Plaintiff responded in opposition to defendant's motion on August 11, 2016 (Doc. 23), and plaintiff replied on August 25, 2016 (Doc. 28). Defendant's motion for partial summary judgment is now properly before the court. However, in reviewing the record in response to defendant's motion for partial summary judgment, the undersigned has determined that this action should be remanded to the Chancery Court for Rutherford County for want of subject matter jurisdiction.
"Federal courts are courts of limited jurisdiction and the law `presume[s] that a cause lies outside this limited jurisdiction.'" Vander Boegh v. Energy Solutions, Inc., 772 F.3d 1056, 1064 (6
The foregoing applies to removal actions. Although remand of a "case on the basis of any defect other than lack of subject matter jurisdiction must be made within 30 days after the filing of the notice of removal," "[i]f at any time before final judgment it appears that the district court lacks subject matter jurisdiction, [then] the case shall be remanded." 28 U.S.C. § 1447(c); see also Fed. R. Civ. P. 12(h)(3)("If the court determines at any time that it lacks subject matter jurisdiction, the court must dismiss the action."). Even where no challenge to jurisdiction has been made by a litigant, the question should be raised by the Court sua sponte. See Rote v. Zel Custom Mfg. LLC, 816 F.3d 383, 392 (6
The petition for removal asserts that "[t]he defendants, acting by and through counsel, pursuant to 28 U.S.C. § 1441(a), 28 U.S.C. § 1441(c), and 28 U.S.C. § 1443 states the following. . . ." Title 28 U.S.C. § 1446 requires that a defendant "desiring to remove any civil action from state court . . . file a notice of removal . . . . containing a short and plain statement of the grounds for removal, together with a copy of all process, pleadings, and orders served upon such defendant or defendants in such action." Defendant's petition for removal does not contain "a short plain statement of the grounds for removal." Because the petition for removal fails to comply with § 1446, the court is unable to determine what the basis for jurisdiction may be from defendant's "by and through counsel" statement above.
In addition to the foregoing, § 1443 provides the following in civil rights cases such as the one before the court:
Section 1443(1) applies only when a defendant demonstrates two things: first, "that the right allegedly denied the removal petitioner arises under federal law providing for specific civil rights stated in terms of racial equality";
Defendant's petition for removal does provide the following jurisdictional statement: "This Court has jurisdiction over the above-styled cause of action pursuant to 28 U.S.C. §§ 1331 and 1367." Section 1331 provides that "[t]he district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States," and § 1367 provides for "supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy. . . ." Once again, however, there is nothing in defendant's reference to these two general jurisdiction statutes that establishes the grounds for original jurisdiction in this case under § 1331 and, by inference, § 1367. Although § 1367 applies to mixed federal-state claims before district courts, the question here is: "What is the basis for jurisdiction under § 1331 in this specific case, i.e., what is the federal question at issue?"
With only conclusory and illusory suggestions of jurisdiction in the petition for removal, the undersigned turns to the amended complaint itself which defendant has provided. (Doc. 1-2) As previously established, the federal removal statute — § 1441 — permits a defendant to remove a civil action from state court to federal court if the plaintiff could have brought the matter in the federal district court. A Forever Recovery, Inc. v. Twp. of Pennfield, 606 Fed.Appx. 279, 280 (6
Plaintiff asserts the following in the jurisdiction and venue section of his amended complaint: "This action is filed pursuant to . . . the United States Constitution Amendment XIV. . . ." (Doc. 1-2, ¶ 3, p. 1) Plaintiff alleges two counts of violations under the Fourteenth Amendment. (Doc. 1-2, pp. 7-10) Plaintiff asserts the following in count I:
(Doc. 1-2, ¶ 40, p. 8) Plaintiff asserts the following in count II:
(Doc. 1-2, ¶ 53, p. 10) In his demand for relief, plaintiff asserts only that he "have all remedies available to him allowed by law for the violations of his Due Process Rights." (Doc. 1-2, ¶ 6, p. 10)
It is axiomatic that plaintiff has rights under the Fourteenth Amendment. However, the Fourteenth Amendment does not confer a cause of action in and of itself, and plaintiff fails to refer to or even suggest any federal law pursuant to which a cause of action might arise. As previously noted, plaintiff's incidental reference to the Fourteenth Amendment does not establish a violation of federal law.
Neither does plaintiff couch his Fourteenth Amendment claims in terms of any state law or statute, city ordnance or published policy with respect to which the alleged acts or omissions of defendant violated his rights under the Fourteenth Amendment. Plaintiff's specific allegations in counts I and II are that: 1) the Chief of Police used internal affairs investigations (IA) to pressure officers into silence; 2) the results of IA investigations "[o]ften . . . [we]re not provided to those investigated, presumably to keep the officer on edge and under control"; 3) he missed overtime work while on paid administrative leave; 4) he worried about his job, his future, and his family while on paid administrative leave; 5) his suspension was the subject of a televised news story; 6) there were "many" IA investigations following which no punitive action was taken even where fault was found; 7) he was not permitted to rescind his resignation, although "other officers" were permitted to rescind theirs; 8) his transfers during his career were for punitive reasons and to embarrass him; 9) transfers since 2004 affected his family and personal life and occurred "without prior warning or opportunity for redress"; 10) unnamed and unidentified high ranking members of the LaVergne Police department prevented him from obtaining other law enforcement work, although it is against the "policy of the City of LaVergne to provide information to prospective employers other than dates of employment." (Doc. 1-2, ¶¶ 39, 41-52, pp. 8-10)
As shown above, plaintiff does not allege and show that his Fourteenth Amendment rights were violated pursuant to any alleged act or omissions attributable to defendant under any state or city law, statute, ordnance or published policy. Nor, as noted previously, may the court engage in speculation or guesswork to determine whether the allegations enumerated above convey jurisdiction on the district court.
For the reasons explained above, the district court lacks subject matter jurisdiction in this matter. Consequently, this case will be