               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 16a0385n.06

                                          Case No. 15-5796
                                                                                  FILED
                         UNITED STATES COURT OF APPEALS                       Jul 07, 2016
                              FOR THE SIXTH CIRCUIT                      DEBORAH S. HUNT, Clerk

FEDERAL HOME LOAN MORTGAGE                          )
CORPORATION,                                        )
                                                    )
       Plaintiff-Appellee,                          )
                                                    )
v.                                                  )
                                                    )
DONALD GILBERT, et al.,                             )
                                                    )
       Defendants,                                  )
                                                    )
ANDREA LEE GILBERT,                                 )        ON APPEAL FROM THE UNITED
                                                    )        STATES DISTRICT COURT FOR
       Third Party Plaintiff-Appellant,             )        THE WESTERN DISTRICT OF
                                                    )        TENNESSEE
v.                                                  )
                                                    )
FEDERAL HOME LOAN MORTGAGE                          )
CORPORATION,                                        )
                                                    )
       Counter Defendant-Appellee,                  )
                                                    )
WELLS FARGO BANK, N.A.,                             )
                                                    )
       Third Party Defendant-Appellee.              )




       BEFORE: DAUGHTREY, MOORE, and SUTTON, Circuit Judges.

       SUTTON, Circuit Judge. When Wells Fargo foreclosed on Andrea Gilbert’s home in

2010, she refused to leave, claiming that the bank had agreed to modify the terms of her loan.
Case No. 15-5796, Federal Home Loan Mortgage Corporation v. Gilbert


All the bank had done at that point, however, was agree to provide her with an application that

would allow her to request a loan modification. Because she later failed to qualify for the loan

modification, the district court held that the bank had the right to seize her home. We affirm.

       Andrea fell behind on her mortgage around the same time her marriage to Donald Gilbert

fell apart. Any hope of staying in her home apparently hinged on Donald, whom the divorce

court ordered to pay the mortgage in lieu of child support. Donald, sad to say, paid nothing,

leaving Andrea (and their children) in the lurch. By early 2010, Andrea was ten monthly

payments behind on the mortgage and lacked the resources to pay what she (in truth her former

husband) owed.

       She asked Wells Fargo if there was any way she could modify the terms of the loan. The

bank told her about the federal Home Affordable Modification Program, which “encourage[s]

mortgage holders to renegotiate qualifying loans to reduce the homeowner’s mortgage payments

to a sustainable level” and delays foreclosure while the bank reviews the homeowner for

eligibility. Thompson v. Bank of Am., N.A., 773 F.3d 741, 747 (6th Cir. 2014). That sounded

like manna from heaven. Andrea gave Wells Fargo her financial information, including her

estimated monthly income, and the bank told her that she “prequalified” for a modification. R.

44-12 at 12. “To be reviewed [further] for the [program],” the bank explained, she needed to

complete a three-month trial period plan, apply for a permanent loan modification, and “provide

[some] requested documentation,” including her current income. Id. at 11–12. She made the

three monthly trial payments and submitted her application, which listed her monthly income at

$1545—$845 of which purportedly came from “Child Support/Alimony.” R. 44-14 at 19. But

she was never able to provide proof that she received the child-support payments because Donald

never made them. The bank requested documentation of the payments at least five times,



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Case No. 15-5796, Federal Home Loan Mortgage Corporation v. Gilbert


including proof of “a Divor[ce] Decree” to show how long the payments would last and “proof

of Child Support” to show she received the money each month. Id. at 26–27. Andrea responded

that she “had neither [of the] documents” that the bank “told” her to send. Id.

       Without the documents, the bank could not confirm that Andrea’s income sufficed to

modify the loan. The bank denied her application on May 18, 2010. Later efforts to modify the

loan failed as well, and the bank foreclosed on her property on August 30, 2010. The bank

assigned its interest to the Federal Home Loan Mortgage Corporation, better known as Freddie

Mac.

       Andrea refused to leave the home, prompting Freddie Mac to file an unlawful detainer

action in Tennessee state court to evict her.         Andrea counterclaimed against Freddie Mac

(on several state law grounds) and filed a third-party claim against Wells Fargo, alleging it had

agreed to modify her loan. Freddie Mac removed the case to federal court and, together with

Wells Fargo, moved for judgment as a matter of law. See 12 U.S.C. § 1452(f). The district court

dismissed many of Andrea’s claims on the pleadings and granted the defendants summary

judgment on the rest. With respect to Freddie Mac’s eviction claim, the court denied Andrea’s

motion to dismiss for lack of subject matter jurisdiction, struck her answer as untimely, and set

the case for trial. Before trial, the district court entered judgment for Freddie Mac on the

remaining claim as a matter of law.

       On appeal, Andrea challenges (1) the district court’s summary judgment decision

rejecting her state law claims against Wells Fargo, (2) its denial of her motion to dismiss Freddie

Mac’s eviction action, and (3) its decision to strike her answer to the eviction action.

       State law claims against Wells Fargo. Andrea first claims that Wells Fargo breached a

contract to modify her loan. But no such contract existed. Wells Fargo invited Andrea to apply



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Case No. 15-5796, Federal Home Loan Mortgage Corporation v. Gilbert


to modify her loan and offered to review her application if she complied with certain

requirements. She applied. But she failed to meet the application’s requirements, namely that

she submit documentation of her current income. Her application thus remained just that. Now,

as ever, an “application when made is not a contract.” Travelers Ins. Co. v. Wolfe, 78 F.2d 78,

81 (6th Cir. 1935); see Fed. Ins. Co. v. Winters, 354 S.W.3d 287, 291 (Tenn. 2011); Canton

Cotton Mills v. Bowman Overall Co., 257 S.W. 398, 402 (Tenn. 1924).

       Look no further than the application itself to confirm the point. “The Trial Period Plan,”

it says, “is the first step” to permanent modification. R. 44-13 at 4. It “is not a modification of

the Loan Documents” itself. R. 1-1 at 292. Permanent modification, it adds, does not occur

“unless and until” Andrea satisfied “all of the conditions required for modification.” Id. One

such condition required Andrea to provide “documentation for all income” that she regularly

received, including “any child support or alimony.” Id. at 291. She thus needed to provide a

copy of her divorce decree “that states the amount of the alimony or child support” and “[p]roof

of full, regular and timely payments.” R. 44-13 at 3. Yet, as Andrea admitted to the bank at the

time, she sent “neither [of those] documents.” R. 44-14 at 26–27. That meant she did not “meet

all of the conditions required for modification,” and that meant her application never became a

loan-modification contract. R. 1-1 at 292.

       Unfortunate though this conclusion may be, it is supported by communications between

Wells Fargo and Andrea at the time.           The bank told Andrea that “[i]f [her] income

documentation does not support the income amount that [she] previously provided . . . [she] may

not qualify for this loan modification program.” R. 44-13 at 2. And Andrea recalled being

“told” to provide the documentation and repeatedly called and wrote Wells Fargo to discuss the

relevant documents. E.g., R. 44-14 at 26–27. She said that she was still “waiting on [the]



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Case No. 15-5796, Federal Home Loan Mortgage Corporation v. Gilbert


Divor[ce] Decree + Child Sup.,” id. at 25, and still “working on getting” the money and

corresponding documents, id. at 26–27. But because her ex-husband, a one-time defendant in

this saga and a less-than-admirable figure in it, never paid the child support, the money never

came. Neither did any documentation of a payment. Neither did any binding contract to modify

the mortgage.

       Andrea tries to counter this conclusion on several grounds. She contends that she did

supply sufficient documentation of her regular monthly income. But the document that she

provided—the divorce court’s February 2010 order for her to receive past-due and future child

support—showed only that she expected to receive future payments, not that she had actually

received “regular and timely” payments as Wells Fargo required. R. 44-13 at 3. Nor does

Andrea’s prequalification for a loan modification mean that she was in fact qualified for one. Cf.

Martin Marietta Materials, Inc. v. Kan. Dep’t of Transp., 810 F.3d 1161 (10th Cir. 2016). Her

“income documentation,” without the payments from Donald, could show a monthly income of

only $700, which did “not support the income amount” of $1545 that she used to become

prequalified. R. 44-13 at 2. Nor was anything amiss with Wells Fargo’s denial letter. It gave

Andrea sufficient notice of the denial. And it was issued “as quickly as possible,” R. 44-13 at 5,

with any delay attributable to the bank’s “extension of time” for Andrea to “gather [her]

documents,” id. at 3. It’s hard to fault the bank for working with Andrea to try to qualify her for

the loan modification rather than denying the application the first chance it had.

       Andrea persists that she made the three trial payments when she used the lump-sum

award she received from Donald’s past-due child support. But just because Andrea could make

past payments based on a past lump-sum award does not prove that she could make present (to

say nothing of future) payments on a “regular and timely” basis, as required. Id. In point of fact,



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Case No. 15-5796, Federal Home Loan Mortgage Corporation v. Gilbert


the past-due child support dried up quickly—after the three payments—and when it did, Andrea

(no fault of her own) had no way to make any ongoing payments. The bank in the final analysis

did not breach any contract with Andrea.

       Andrea separately claims that the district court should not have rejected her promissory

estoppel claim. But just as Andrea did not produce evidence of a contract to modify her loan,

she did not produce evidence of a promise to do so either. Such a promise, we have insisted,

“must be actual, clear, and definite—a conditional promise will not do.” Olson v. Merrill Lynch

Credit Corp., 576 F. App’x 506, 511 (6th Cir. 2014) (quotation omitted). The Tennessee courts

say the same thing. A promise “must be unambiguous and not . . . vague.” Amacher v. Brown-

Forman Corp., 826 S.W.2d 480, 482 (Tenn. Ct. App. 1991).

       Andrea’s problem is that Wells Fargo did not make an “actual, clear, and definite” or

“unambiguous” promise to modify her loan.          To the contrary, it told her that it didn’t

“guarant[ee] anything at all,” R. 48-6 at 33, and used words like “may,” “maybe,” “if,” “could,”

and “possibly” to back that up, e.g., R. 44-8; R. 44-10; R. 44-12. “At most, [Wells Fargo]

informed [Andrea] that she might qualify”—if she complied with all of its prerequisites.

Thompson, 773 F.3d at 753 (emphasis added). But she did not comply. In the absence of a

promise, Andrea’s estoppel claim must fail. Amacher, 826 S.W.2d at 482; see Alden v. Presley,

637 S.W.2d 862, 864 (Tenn. 1982).

       Andrea’s wrongful foreclosure claim also comes up short. She acknowledged in the

district court and in her opening appellate brief that, if her breach of contract and promissory

estoppel claims failed, then her wrongful foreclosure claim must fail as well. That’s because a

Tennessee wrongful foreclosure claim does not amount to an independent cause of action in the

Home Affordable Modification Program context. Clay v. First Horizon Home Loan Corp.,



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Case No. 15-5796, Federal Home Loan Mortgage Corporation v. Gilbert


392 S.W.3d 72, 79 (Tenn. Ct. App. 2012); see Mik v. Fed. Home Loan Mortg. Corp., 743 F.3d

149, 166–67 (6th Cir. 2014).

       Her contrary contention raised for the first time in her reply brief on appeal comes too

late. Jones v. Reynolds, 438 F.3d 685, 695 (6th Cir. 2006). It would fail anyway. See Clay, 392

S.W.3d at 79.

       No doubt, we have considerable sympathy for Andrea’s “frustrating inability to procure a

payment modification.” Thompson, 773 F.3d at 753. The bank by all appearances was frustrated

by that inability as well. But all of this does not give us a warrant to ignore the requirements of

the application and Tennessee state law.

       Freddie Mac’s eviction action. The district court also correctly denied Andrea’s motion

to dismiss Freddie Mac’s eviction action. Andrea contends that the district court lacked subject

matter jurisdiction over the case. That is not the case, however. The “Freddie Mac” Act, see

Federal Home Loan Mortgage Corporation Act, Pub. L. No. 91-351, Tit. III, §§ 301–310, 84

Stat. 450, 451–58 (1970), grants district courts “original jurisdiction” over “all civil actions to

which [Freddie Mac] is a party.” 12 U.S.C. § 1452(f). And it allows Freddie Mac to remove

state-court cases to federal court that name it as a party. Id. That’s all Freddie Mac did here.

       Andrea responds that the state court from which Freddie Mac removed the case lacked

jurisdiction, which deprived the federal court of jurisdiction as well. Known as “derivative

jurisdiction,” this theory holds that a “federal district court does not acquire subject matter

jurisdiction by removal if the state court lacked jurisdiction over the original action.” W. & S.

Life Ins. Co. v. Smith, 859 F.2d 407, 409 n.4 (6th Cir. 1988). The doctrine, for what it is worth,

appears to be on its last legs.     See 14B Charles Alan Wright et al., Federal Practice and

Procedure § 3721 (4th ed. 2016) (collecting materials). Congress notably has abolished it for



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Case No. 15-5796, Federal Home Loan Mortgage Corporation v. Gilbert


cases removed under the general removal statute. 28 U.S.C. § 1441(f). Yet the parties agree that

it applies here because Freddie Mac relied on the Freddie Mac Act, not the general removal

statute, to remove the case. See, e.g., Lopez v. Sentrillon Corp., 749 F.3d 347, 351 (5th Cir.

2014); Palmer v. City Nat’l Bank, of W. Va., 498 F.3d 236, 246 (4th Cir. 2007).

       Assume then that the doctrine, even if just for argument’s sake, applies. And assume,

again for argument’s sake, that the doctrine is “jurisdictional” in the sense that it goes to our

power to hear the case. But see Morda v. Klein, 865 F.2d 782, 784 (6th Cir. 1989); Rodas v.

Seidlin, 656 F.3d 610, 619–25 (7th Cir. 2011). Even so, the district court had jurisdiction

because the state court had jurisdiction. An overview of the Tennessee court system shows why.

Tennessee general sessions courts, where Freddie Mac initiated this lawsuit, are akin to small

claims courts. They have limited jurisdiction (over cases such as eviction actions), and their

judgments do not bind losing parties that appeal to general trial courts, known as circuit courts.

See Ware v. Meharry Med. Coll., 898 S.W.2d 181, 183–84 (Tenn. 1995); see Tenn. Code Ann.

§§ 27-5-108(a)(1), 29-18-128. The general trial courts acquire jurisdiction over the case so long

as the losing party files its appeal within ten days of the adverse judgment and “give[s] bond

with good security . . . for the costs of the appeal.” Id. §§ 27-5-101, -103(a).

       Freddie Mac met these state law requirements, giving the state court—and thus the

federal court—jurisdiction over the case. After it lost at the general sessions court, it filed an

appeal within ten days, and it used a surety bond for the appeal costs. The Tennessee circuit

court made note of the bond on its docket and properly asserted jurisdiction over the case.

Contrary to Andrea’s argument, Tennessee law requires nothing more. It contains no specific

signature requirement, no type-of-surety requirement, no form-of-payment requirement. See

Griffin v. Campbell Clinic, P.A., 439 S.W.3d 899, 905 (Tenn. 2014); Tenn. Code Ann. § 16-15-



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Case No. 15-5796, Federal Home Loan Mortgage Corporation v. Gilbert


729. It says only that “[a]n appeal bond . . . shall be considered sufficient if it secures the cost of

the cause on appeal.” Id. § 27-5-103(b). That’s all. And that’s what Freddie Mac’s appeal bond

did. The district court properly denied Andrea’s motion to dismiss.

       Leave to file an answer. The court also acted within its discretion in denying Andrea

leave to file her answer over a year and a half too late—on the night before the joint pretrial

order was due and less than a month before trial. Andrea submitted this late filing without the

required motion to extend her time to file, see Fed. R. Civ. P. 6(b)(1)(B), which in some quarters

dooms the request by itself. Unicorn Tales, Inc. v. Banerjee, 138 F.3d 467, 470 (2d Cir. 1998);

see B & D Partners v. Pastis, No. 05-5954, 2006 WL 1307480, at *2 (6th Cir. May 9, 2006).

Yet the district court (graciously) considered whether to allow the filing, using the late-filing

“excusable neglect” standard that Andrea urged.          See Fed. R. Civ. P. 6(b)(1).       The court

nonetheless determined that the alleged “oversight” by Andrea’s lawyer—forgetting to file—did

not excuse the late filing. R. 77 at 16; see McNeil v. United States, 508 U.S. 106, 113 (1993).

       On appeal, Andrea argues that the district court applied the wrong standard—that it

should have applied the more lenient Civil Rule 55(c) “good cause” standard applicable to

excuse default judgments. At least one court, it is true, has applied this standard to excuse a late-

filed answer when doing so avoided a default judgment. See Perez v. Wells Fargo N.A., 774

F.3d 1329, 1339 (11th Cir. 2014). But in this case there was no default judgment to avoid. The

district court denied Freddie Mac’s request for a default judgment at the same time it denied

Andrea’s motion to file a very late answer. What’s more, the district court applied the standard

Andrea urged it to apply. We generally do not allow litigants to move the goalposts on appeal,

particularly when they set the goalposts in the first place and offer no good reason for making a




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Case No. 15-5796, Federal Home Loan Mortgage Corporation v. Gilbert


change on appeal. See Greco v. Livingston County, 774 F.3d 1061, 1064 (6th Cir. 2014); United

States v. LaBarge, 52 F. App’x 216, 219 n.1 (6th Cir. 2002).

       For these reasons, we affirm.




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Case No. 15-5796, Federal Home Loan Mortgage Corporation v. Gilbert


        SUTTON, Circuit Judge, concurring. There is one interesting feature to this dispute, not

necessary to resolution of the case and therefore not explored in the majority opinion, but worth

a few separate thoughts. The question is: When a case is removed from state court to federal

court, does the state court’s lack of jurisdiction deprive the federal court of jurisdiction as well?

        Andrea Gilbert says it does. Because the state court from which Freddie Mac removed

the eviction action allegedly did not have jurisdiction over it, Andrea maintains, the federal court

necessarily lacked subject matter jurisdiction.        In making this argument, Andrea invokes

“derivative jurisdiction,” a doctrine that purports to limit the removal jurisdiction of the federal

courts “if the state court lacked jurisdiction over the original action.” W. & S. Life Ins. Co. v.

Smith, 859 F.2d 407, 409 n.4 (6th Cir. 1988).

        The court’s opinion holds that we have jurisdiction regardless, because the state court had

jurisdiction over the original eviction action. But it’s worth asking whether, even if that weren’t

true, even if the state court lacked jurisdiction, our subject matter jurisdiction would be altered.

My answer is no: Federal removal subject matter jurisdiction is not dependent on, or for that

matter “derivative” of, the jurisdictional rules of the state courts.

        Once “well settled,” Arizona v. Manypenny, 451 U.S. 232, 243 n.17 (1981); see Lambert

Run Coal Co. v. Balt. & Ohio R.R. Co., 258 U.S. 377, 382 (1922), the concept of derivative

jurisdiction appears to be on its last legs. See 14B Charles Alan Wright et al., Federal Practice

and Procedure § 3721 (4th ed. 2016); Erwin Chemerinsky, Federal Jurisdiction § 5.5, at 288

(1989). The key problem with its use here is that the United States Constitution and federal

statutes, taken together, give federal courts subject matter jurisdiction to entertain cases removed

from state courts that arise under federal law or that involve diverse parties. Nothing in any of

the federal removal statutes makes the subject matter jurisdiction of the federal courts turn on the



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Case No. 15-5796, Federal Home Loan Mortgage Corporation v. Gilbert


underlying jurisdiction of the state courts over the dispute under state law. See Breuer v. Jim’s

Concrete of Brevard, Inc., 538 U.S. 691, 694 (2003).

       Any other approach would create intractable oddities. Suppose a case could be brought

only in federal court. A patent case offers one example. See 28 U.S.C. § 1338(a). An ERISA

case offers another example. See 29 U.S.C. § 1132(e)(1). And there are many more: admiralty,

maritime, and prize actions, 28 U.S.C. § 1333; copyright lawsuits, id. § 1338(a); Title 11

bankruptcy actions, id. § 1334(a); claims under the Federal Tort Claims Act, id. § 1346(b)(1);

challenges to some federal agency actions, e.g., 33 U.S.C. § 1369(b) (Clean Water Act); claims

under the Securities Exchange Act of 1934, 15 U.S.C. § 78aa(a); federal antitrust actions, see,

e.g., Gen. Inv. Co. v. Lake Shore & Mich. S. Ry. Co., 260 U.S. 261, 286–88 (1922); and other

more obscure cases, e.g., 22 U.S.C. § 290k-11(b) (cases challenging an award of an arbitral

tribunal under the Convention Establishing the Multilateral Investment Guarantee Agency);

16 U.S.C. § 2440 (cases arising under the Antarctic Marine Living Resources Convention).

       Suppose as well that the claimant nonetheless brings this kind of case in state court. The

conventional option for the defendant, the one Congress established, would be to remove the

case to federal court, where the plaintiff could (and should) have brought the original lawsuit.

Now suppose the plaintiff does not protest, does not invoke derivative jurisdiction, and thus does

not claim that the federal court lacks jurisdiction because the state courts lacked jurisdiction.

Discovery commences.       Pretrial proceedings move forward.       Summary judgment motions

appear. If the plaintiff loses at summary judgment (or for that matter after a jury trial), may it

move to dismiss the action for lack of subject matter jurisdiction? The answer is yes if, as

Andrea claims today, the concept of derivative jurisdiction goes to the subject matter jurisdiction

of the federal courts. And this in a setting where the federal court has original jurisdiction—in



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Case No. 15-5796, Federal Home Loan Mortgage Corporation v. Gilbert


reality, exclusive jurisdiction—over the case, and the state courts no jurisdiction over the matter.

“The result is that a federal court refuses to entertain a case over which only it has jurisdiction.”

North Dakota v. Fredericks, 940 F.2d 333, 336 (8th Cir. 1991). This problem by the way would

apply in all such cases misfiled in state court—a not-unusual situation, particularly for ERISA

cases—because, if the federal courts have exclusive jurisdiction, the state courts would lack

jurisdiction and derivative jurisdiction would apply.

       The only recourse at this point would be for the plaintiff to refile in federal court

(assuming no limitations bar applied). And the upshot would be the “kind of rigmarole []

unworthy of a civilized judicial system,” id., and “indefensibl[e] from the standpoint of practical

judicial administration,” Washington v. Am. League of Prof’l Baseball Clubs, 460 F.2d 654,

658–59 (9th Cir. 1972); see also Hollis v. Fla. State Univ., 259 F.3d 1295, 1298 (11th Cir. 2001);

Patriot Cinemas, Inc. v. Gen. Cinemas Corp., 834 F.2d 208, 218 (1st Cir. 1987).

       Appreciating these problems, Congress in 1986 abolished the concept of derivative

jurisdiction for some cases—those removed under the general removal statute, see Judicial

Improvements Act of 1985, Pub. L. No. 99-336, 100 Stat. 633—and did so again in 2002 with

slightly different language, see 28 U.S.C. § 1441(f). But “for no apparent policy reason,”

Congress appears to have “limit[ed] the abrogation . . . to cases removed under” that statute.

Wright et al., supra, § 3721. The doctrine lives on, some courts have held, for actions removed

under other removal statutes, such as the federal officer removal statute. See, e.g., Conklin v.

Kane, No. 14-4106, 2015 WL 8125304, at *2 (3d Cir. Dec. 8, 2015); Palmer v. City Nat’l Bank

of W. Va., 498 F.3d 236, 246 (4th Cir. 2007); Lopez v. Sentrillon Corp., 749 F.3d 347, 351 (5th

Cir. 2014); Rodas v. Seidlin, 656 F.3d 610, 618–19 (7th Cir. 2011).




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Case No. 15-5796, Federal Home Loan Mortgage Corporation v. Gilbert


       In this instance the government relied on the “Freddie Mac” Act, see Federal Home Loan

Mortgage Corporation Act, Pub. L. No. 91-351, Tit. III, §§ 301–310, 84 Stat. 450, 451–58

(1970), not the general removal statute, in removing the case to federal court. See 12 U.S.C.

§ 1452(f). For that reason, the parties agree that some form of the doctrine applies here.

       What form, is the key question. That the doctrine may apply does not tell us how it

applies. The answer to that question depends on the interpretation of a word with “many, too

many meanings”: “jurisdiction.” Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 90 (1998)

(quotation omitted).

       Once used as shorthand for anything “mandatory,” see, e.g., United States v. Robinson,

361 U.S. 220, 229 (1960), “jurisdiction” now refers to “the courts’ statutory or constitutional

power to adjudicate the case,” Steel Co., 523 U.S. at 89. A careful use of the term covers far

fewer disputes than was once the case. See id.; see also, e.g., Arbaugh v. Y&H Corp., 546 U.S.

500, 514–15 (2006); United States v. Al-Maliki, 787 F.3d 784, 790–91 (6th Cir. 2015).

       The derivative jurisdiction doctrine, properly understood, does not go to the federal

courts’ subject matter jurisdiction—their power—to review a case. Despite its “improvident

name,” the doctrine “is best understood as a procedural bar to the exercise of federal judicial

power” rather than “an essential ingredient to federal subject matter jurisdiction.”         Rodas,

656 F.3d at 619. We have said as much. Morda v. Klein, 865 F.2d 782, 784 (6th Cir. 1989).

So has every other circuit but one. Compare Patriot Cinemas, 834 F.2d at 217–18, Calhoun v.

Murray, 507 F. App’x 251, 256 (3d Cir. 2012), Foval v. First Nat’l Bank of Commerce in New

Orleans, 841 F.2d 126, 129 (5th Cir. 1988), Rodas, 656 F.3d at 619, and Sorosky v. Burroughs

Corp., 826 F.2d 794, 800–01 (9th Cir. 1987), with Bullock v. Napolitano, 666 F.3d 281, 286 (4th

Cir. 2012). And even Bullock did so without confronting the argument that the doctrine is



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Case No. 15-5796, Federal Home Loan Mortgage Corporation v. Gilbert


merely a procedural bar. See Appellant’s Br., Bullock v. Napolitano, 666 F.3d 281 (No. 10-

1222) 2010 WL 2592618.

       Not only does the doctrine lead to strange outcomes, it has no constitutional or statutory

basis and appears to have been “subject to qualification” from the beginning. Fid. Trust Co. v.

Gill Car Co., 25 F. 737, 739 (C.C.S.D. Ohio 1885) (cited in Lambert Run Coal, 258 U.S. at 383

n.3); see Rodas, 656 F.3d at 624–25 (collecting cases).          This conclusion also furthers the

“mission to rein in profligate uses of ‘jurisdiction,’” Herr v. U.S. Forest Serv., 803 F.3d 809, 813

(6th Cir. 2015), a mission that we do not undertake alone, see, e.g., Sebelius v. Auburn Reg’l

Med. Ctr., 133 S. Ct. 817, 824 (2013); Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428,

434–35 (2011); Union Pac. R.R. Co. v. Locomotive Eng’rs, 558 U.S. 67, 81 (2009); Arbaugh,

546 U.S. at 514–15; Steel Co., 523 U.S. at 89–90; Al-Maliki, 787 F.3d at 790–91; EEOC v.

Watkins Motor Lines, Inc., 553 F.3d 593, 595–96 (7th Cir. 2009).

       That derivative jurisdiction counts as a procedural defect, not a subject-matter-

jurisdiction defect, “makes an enormous practical difference.” Al-Maliki, 787 F.3d at 790–91.

“Challenges to subject-matter jurisdiction cannot be waived or forfeited,” but procedural

challenges to other types of so-called “jurisdiction” (like derivative jurisdiction) “can be forfeited

by litigants” and “can be outright waived.” Id.; see Smith, 859 F.2d at 409 n.4. That’s what

happened here. Because Andrea’s challenge alleged a “defect other than lack of subject matter

jurisdiction,” it “must [have] be[en] made within 30 days” of Freddie Mac’s removal. 28 U.S.C.

§ 1447(c); see Rodas, 656 F.3d at 621. It was not. Andrea waited eleven months to make her

motion—until after she lost at summary judgment—and thus would have forfeited her challenge.

See Music v. Arrowood Indem. Co., 632 F.3d 284, 287 (6th Cir. 2011); Gentek Bldg. Prods., Inc.




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Case No. 15-5796, Federal Home Loan Mortgage Corporation v. Gilbert


v. Sherwin-Williams Co., 491 F.3d 320, 327–29 (6th Cir. 2007). She cannot resurrect it now by

using a jurisdictional label.

        The only pertinent jurisdictional question here is “not whether the case was properly

removed, but whether the federal district court would have had original jurisdiction of the case

had it been filed in that court.” Grubbs v. Gen. Elec. Credit Corp., 405 U.S. 699, 702 (1972).

The answer is yes. The Freddie Mac Act grants district courts “original jurisdiction” over “all

civil actions to which [Freddie Mac] is a party.” 12 U.S.C. § 1452(f). And it allows Freddie

Mac to remove state court cases that name it as a party to federal court. Id. That’s just what

Freddie Mac did. I suspect, therefore, that the district court properly exercised jurisdiction over

this case, even applying the doctrine of derivative jurisdiction.




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