US BANK NATIONAL ASSOCIATION v. KELLY
ORDER remanding case to the Magistrate Court of Thomas County for lack of subject matter jurisdiction; finding as moot 3 MOTION for Hearing filed by FRED KELLY. Ordered by US DISTRICT JUDGE HUGH LAWSON on 11/24/2015. (aks)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
ASSOCIATION, Trustee for the
Corporation Mortgage Pass-Through
Certificates, Series 2006-BC5,
Civil Action No. 7:15-CV-207
This Court has a duty to inquire into its own subject matter jurisdiction sua
sponte whenever it may be lacking. Based on that inquiry and for the reasons
outlined below, this action is REMANDED pursuant to 28 U.S.C. § 1447(c) to the
Magistrate Court of Thomas County, Georgia because this Court lacks subject
In October 2015, pursuant to Georgia Law, Plaintiff U.S. Bank National
Association filed a dispossessory proceeding in the Magistrate Court of Thomas
County in an attempt to evict Defendant Fred Kelly and all other occupants from
a home owned by Plaintiff. (Doc. 1-1, p. 1). Defendant Kelly removed the matter
to this Court on November 13, 2015, citing 12 U.S.C. § 95(a)(2) and 8 U.S.C. §
1481 as the basis for removal. (Doc. 1, p. 1).
When a notice of removal is filed, the Court is obligated to consider sua
sponte whether jurisdiction is present and must remand the case to state court if
it determines that it lacks jurisdiction. See 28 U.S.C. § 1447(c); Fed. R. Civ. P.
12(h)(3); see also Yusefzadeh v. Nelson, Mullins, Riley & Scarborough, LLP, 365
F.3d 1244, 1245–46 (11th Cir. 2004) (recognizing that a district court may sua
sponte remand the case for lack of subject-matter jurisdiction).
Title twenty-eight, section 1441(a) of the United States Code provides that
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 present a federal
question or that involve citizens of different states and exceed the $75,000.00
amount in controversy threshold.
See 28 U.S.C. § 1331 (federal question
jurisdiction); 28 U.S.C. § 1332(a) (diversity jurisdiction for citizens of different
states). However, “[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). “[T]he burden is on the party who sought removal to demonstrate that
federal jurisdiction exists.” Kirkland v. Midland Mortg. Co., 243 F.3d 1277, 1281
n.5 (11th Cir. 2001) (citation omitted). “[U]ncertainties are resolved in favor of
remand.” Burns v. Windsor Ins. Co., 31 F.3d 1092, 1095 (11th Cir. 1994).
“The presence or absence of federal-question jurisdiction is governed by
the ‘well-pleaded complaint’ rule, which provides that federal jurisdiction exists
only when a federal question is presented on the face of the plaintiff’s properly
pleaded complaint. The rule makes the plaintiff the master of the claim; he or
she may avoid federal jurisdiction by exclusive reliance on state law.” Caterpillar
Inc. v. Williams, 482 U.S. 386, 392 (1987) (internal citation omitted). Potential
defenses and counterclaims involving the Constitution or laws of the United
States are ignored. Vaden v. Discover Bank, 556 U.S. 49, 60 (2009).
Here, Plaintiff relied exclusively upon state law when it filed this
dispossessory proceeding in the Magistrate Court of Thomas County. (Doc. 1-1,
No federal question is presented on the face of Plaintiff’s Complaint.
There is also no evidence that warrants the application of an exception to the
well-pleaded complaint rule, such as the complete pre-emption doctrine. See
Caterpillar, 482 U.S. at 393 (explaining the doctrine of complete pre-emption,
which applies only when an federal statute completely pre-empts the relevant
state statute). Neither statute cited by Defendant pre-empts the applicable state
law. While 12 U.S.C. § 95(a)(2) does not exist, § 95(a) restricts member banks
of the Federal Reserve System to powers prescribed by the Secretary of the
Treasury, approved by the President.
Further, 8 U.S.C. § 1481 prescribes
methods by which a person who is a United States national may voluntarily lose
his nationality, none of which apply to Defendant. Jurisdiction over the initiation
and trial of a dispossessory action filed in Georgia lies exclusively with the state
court system. O.C.G.A. § 44-7-49, et seq.
In the event Defendant is attempting to invoke this Court’s diversity
jurisdiction, the Court still lacks requisite jurisdiction because Plaintiff’s Complaint
does not satisfy the amount in controversy requirement. Rather, Plaintiff’s claim
is a request for possession of real property belonging to Plaintiff. (Doc. 1-1, p. 1).
A claim seeking ejectment in a dispossessory action cannot be reduced to a
monetary sum for purposes of determining the amount in controversy. Green
Tree Servicing, LLC v. Respert, No. 5:14-CV-183, 2014 WL 2946422, at *2 (M.D.
Ga. June 30, 2014).
Kelly has failed to demonstrate that this court has subject matter
jurisdiction over U.S. Bank National Association’s claim. Therefore, it is ordered
that this action be REMANDED to the Magistrate Court of Thomas County,
Georgia. If there are no objections filed within fifteen (15) days of the entry of
this Order, the Clerk is directed to REMAND this action to the Magistrate Court of
Thomas County, Georgia. Defendant Kelly’s Motion for a Status Hearing (Doc.
3) is moot.
SO ORDERED, this the 24th day of November, 2015.
/s/ Hugh Lawson_________________
HUGH LAWSON, SENIOR JUDGE
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