ONP LLC v. Wilcox

Filing 6

OPINION AND ORDER adopting 3 Final Report and Recommendation. The Clerk is DIRECTED to REMAND this action to the Magistrate Court of Clayton County, Georgia. Signed by Judge William S. Duffey, Jr on 5/30/2014. (anc)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
ONP, LLC d/b/a LAKEVIEW
TRAILS APTS.,
Plaintiff,
v.

1:14-cv-669-WSD

MAGDALENA WILCOX and ALL
OTHER OCCUPANTS,
Defendants.

OPINION AND ORDER
This matter is before the Court on Magistrate Judge Linda T. Walker’s Final
Report and Recommendation [3] (“R&R”), which recommends remanding to state
court this dispossessory action that Defendant Magdalena Wilcox (“Defendant”)
wrongfully removed to this Court.
I.

BACKGROUND
This is a dispossessory action filed by Plaintiff ONP, LLC d/b/a Lakeview

Trails Apts. (“Plaintiff”) against Defendant in the Magistrate Court of Clayton
County, Georgia. On March 7, 2014, Defendant removed the case to this Court by
filing her “Petition for Removal of Action” and an application to proceed in forma
pauperis (“IFP Application”). Defendant asserts that, in attempting to evict

Defendant from her home, Plaintiff violated the Fair Debt Collection Practices Act,
15 U.S.C. § 1692 et seq., the Federal Rules of Civil Procedure, and the Due
Process Clause of the Fourteenth Amendment.
On April 7, 2014, Magistrate Judge Walker granted Defendant’s IFP
Application. Judge Walker also considered sua sponte the question of federal
jurisdiction and issued her R&R recommending that the Court remand this case to
state court. The R&R concludes that federal question jurisdiction is lacking
because there is no indication that this case is brought pursuant to federal law, and
a defense or counterclaim based on federal law is insufficient to confer federal
subject-matter jurisdiction. The R&R also concludes that diversity jurisdiction is
lacking because there is no indication that the parties have diverse citizenship or
that the amount in controversy exceeds $75,000. For these reasons, the Magistrate
Judge concluded that there is no federal jurisdiction over this cause of action and
that the case is required to be remanded to state court.
Neither party filed objections to the R&R.
II.

DISCUSSION
A.

Legal Standard

After conducting a careful and complete review of the findings and
recommendations, a district judge may accept, reject or modify a magistrate

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judge’s report and recommendation. 28 U.S.C. § 636(b)(1); Williams v.
Wainwright, 681 F.2d 732 (11th Cir. 1982). A district judge “shall make a de novo
determination of those portions of the report or specified proposed findings or
recommendations to which objection is made.” 28 U.S.C. § 636(b)(1). With
respect to those findings and recommendations to which objections have not been
asserted, the Court must conduct a plain error review of the record. United States
v. Slay, 714 F.2d 1093, 1095 (11th Cir. 1983).
B.

Analysis

Defendant has not filed an objection to the R&R’s conclusion that the Court
lacks subject matter jurisdiction over this action. The Court does not find any error
in that conclusion. The Court lacks federal question jurisdiction over this matter
because a federal question is not presented on the face of Plaintiff’s Complaint,
and Defendant’s assertions of defenses or counterclaims based on federal law
cannot confer federal subject matter jurisdiction over this matter. See Beneficial
Nat’l Bank v. Anderson, 539 U.S. 1, 6 (2003); Holmes Group, Inc. v. Vornado Air
Circulation Systems, Inc., 535 U.S. 826, 830-32 (2002). The Court also lacks
diversity jurisdiction over this matter because Defendant has not demonstrated that
she and Plaintiff are citizens of different states or that the amount in controversy
exceeds $75,000. See 28 U.S.C. § 1332(a); see also Williams v. Best Buy Co., 269

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F.3d 1316, 1319 (11th Cir. 2001) (holding that the defendant must establish the
basis for diversity jurisdiction over a removed action). Because the Court lacks
subject matter jurisdiction over this matter, the action is required to be remanded.
See 28 U.S.C. § 1447(c) (“If at any time before final judgment it appears that the
district court lacks subject matter jurisdiction, the case shall be remanded.”).
III.

CONCLUSION
For the foregoing reasons,
IT IS HEREBY ORDERED that Magistrate Judge Linda T. Walker’s Final

Report and Recommendation [3] is ADOPTED. The Clerk is DIRECTED to
REMAND this action to the Magistrate Court of Clayton County, Georgia.
SO ORDERED this 30th day of May, 2014.

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