CITIZENS BANK v. ACS/NES PROPERTIES INC et al

Filing 4

ORDER remanding case to Magistrate Court of Lowndes County; directing Clerk to close this action. Ordered by Judge Hugh Lawson on 8/2/2012. (nbp)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
VALDOSTA DIVISION

THE CITIZENS BANK,
Plaintiff,
v.

Civil Action No. 7:12-CV-88 (HL)

ACS/NES
PROPERTIES,
INC.,
ADONNA SMITH, and NATHANIEL
SMITH,
Defendants.

ORDER
On July 5, 2012, Plaintiff The Citizens Bank filed a dispossessory action in
the Magistrate Court of Lowndes County in an attempt to evict ACS/NES
Properties, Inc. and all other occupants from commercial property located at
5108 Northwind Boulevard, Valdosta, Georgia, after a foreclosure sale. (Doc. 3,
p. 23). Adonna Smith, who is listed on the dispossessory complaint as the agent
for ACS/NES Properties, removed the matter to this Court on July 17, 2012 (Doc.
1). Smith argues that the dispossessory proceedings violated the Fourteenth
Amendment of the United States Constitution, the Truth in Lending Act, the Real
Estate Settlement Procedures Act, and the Fair Debt Collection Practices Act.
(Doc. 1, p. 2).

Because federal courts are courts of limited jurisdiction, they Aalways have
an obligation to examine sua sponte their jurisdiction before reaching the merits
of any claim.@ Kelly v. Harris, 331 F.3d 817, 819 (11th Cir. 2003). Consistent with
the practices of this Court, the Notice of Removal and associated pleadings were
subjected to an initial review to determine if the Court has subject matter
jurisdiction over the case. The Court finds that it lacks subject matter jurisdiction
over this lawsuit.
A “civil action brought in a State court of which the district courts of the
United States have original jurisdiction, may be removed by the defendant or the
defendants, to the district court of the United States for the district and division
embracing the place where such action is pending.” 28 U.S.C. § 1441(a). District
courts have original jurisdiction over civil cases that involve a federal question, 28
U.S.C. § 1331, or that involve citizens of different states and exceed the $75,000
amount in controversy threshold, 28 U.S.C. § 1332. But “[i]f at any time before
final judgment it appears that the district court lacks subject matter jurisdiction,
the case shall be remanded.” 28 U.S.C. § 1447(c). The burden is on the
removing party to show that federal jurisdiction exists. Kirkland v. Midland
Mortgage Co., 243 F.3d 1277, 1281 n. 5 (11th Cir. 2001) (citation omitted).
Smith purports to remove the action based on federal question jurisdiction.
“The well-pleaded-complaint rule has long governed whether a case ‘arises
under’ federal law for purposes of § 1331,” and that rule “governs whether a case
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is removable from state to federal court pursuant to 28 U.S.C § 1441(a).” Holmes
Group, Inc. v. Vornado Air Circulation Sys., Inc., 535 U.S. 826, 830 n. 2, 122
S.Ct. 1889, 153 L.Ed.2d 13 (2002). The well-pleaded complaint rule “provides
that federal jurisdiction exists only when a federal question is presented on the
face of the plaintiff’s properly pleaded complaint.” Caterpillar, Inc. v. Williams,
482 U.S. 386, 392, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987). Counterclaims and
defenses involving the Constitution or laws of the United States are ignored when
determining whether a federal question has been raised by the plaintiff’s
complaint. See Beneficial Nat’l Bank v. Anderson, 539 U.S. 1, 6, 123 S.Ct. 2058,
156 L.Ed.2d 1 (2003) (“To determine whether the claim arises under federal law,
we examine the ‘well pleaded’ allegations of the complaint and ignore potential
defenses. . . .”); Citimortgage, Inc. v. Dhinoja, 705 F.Supp.2d 1378, 1381 (N.D.
Ga. 2010).
Dispossessory actions are governed by state law. See O.C.G.A. § 44-7-50.
The face of the dispossessory complaint filed by Plaintiff indicates no federal
question. While Smith contends that Plaintiff violated various federal laws, her
claims are to be ignored when determining if jurisdiction exists. No federal claims
were raised by Plaintiff in the underlying action. Any possible defenses or
counterclaims do not provide a basis for removing the dispossessory proceeding
to this Court.

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Smith has not established that this Court has subject matter jurisdiction
over the Lowndes County dispossessory action, which makes removal of it
improper. Accordingly, this action is remanded pursuant to 28 U.S.C. § 1447(c)
to the Magistrate Court of Lowndes County.
The Clerk of Court is directed to send a copy of this order to Plaintiff and
Adonna Smith at their respective addresses as listed on the docket. The Clerk is
also directed to close this case.

SO ORDERED, this 2nd day of August, 2012.
s/ Hugh Lawson
HUGH LAWSON, SENIOR JUDGE

mbh

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