Estate of John Bamberg et al v. Regions Bank et al
Filing
5
ORDER & OPINION denying 4 Motion for TRO and dismissing and closing this case. Signed by Judge Julie E. Carnes on 6/30/14. (ekb)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
ESTATE OF JOHN BAMBERG and KEM T.
BAMBERG,
Plaintiffs,
CIVIL ACTION NO.
v.
1:14-cv-01960-JEC
REGIONS
BANK,
d/b/a
REGIONS
MORTGAGE,
REGIONS
FINANCIAL
CORP., GEHEREN FIRM PC, KEY
PROPERTY SERVICES, LLC, and SRP
SUB, LLC,
Defendants.
ORDER & OPINION
This case is before the Court on plaintiffs’ Motion for a
Temporary Restraining Order [4].
The Court has reviewed the record
and plaintiffs’ arguments and, for the reasons set out below,
concludes that plaintiffs’ Motion for a Temporary Restraining Order
[4] should be DENIED.
BACKGROUND
This action arises out of a dispossessory proceeding filed in
Henry County Magistrate Court.
(Mot. for TRO [4] at 1.)
This
current filing represents plaintiffs’ third effort to utilize the
federal court system to stop their eviction from residential property
that has previously been foreclosed.
Specifically, on January 27,
2014, the Bamberg parties, consisting of the Estate of John Bamberg
and
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Kem
Bamberg
(“the
Bambergs”),
removed
to
federal
court
a
dispossessory action filed against them in the Magistrate Court of
Henry County.
The plaintiff in that case, Key Property Services,
sought possession of the residential property at issue, apparently
because of non-payment of rent by the Bambergs.1 See Key Prop. Servs.
v. Bamberg, Civ. Action No. 1:14-cv-00238-JEC-GGB, Order & Final
Report & Recommendation [Dkt. 3] (N.D. Ga. Mar. 3, 2014)(Brill, Mag.
J.).
The magistrate judge recommended a remand of the action back to
Henry County because the Bambergs had failed to show the existence of
any federal jurisdiction in that case. That is, there was no federal
question jurisdiction over this garden-variety eviction action.
As
to diversity jurisdiction, the magistrate judge concluded that both
Kem Bamberg and the defendant, Key Property Services, are citizens of
the
State
of
Georgia,
meaning
that
there
was
no
diversity
of
citizenship. Second, the Bambergs had failed to show that the amount
in controversy exceeded $75,000, which is a second requirement for
1
Defendant Key Property Services instituted dispossessory
proceedings in the Henry County Magistrate Court on October 22, 2013.
Key Prop. Servs. v. Bamberg & All Other Occupants, Case No. 20134804-CB (Henry Cnty. Mag. Ct. Oct. 22, 2013). (Henry Cnty. Mag. Ct.
Oct. 22, 2013), available at https://hcwebb.boca.co.henry.ga.us/cm
websearchppp/CaseView.aspx?norec=1 (last accessed June 30, 2014).
Plaintiffs do not expand on this point in their filings, but it
appears that Kem T. Bamberg became a tenant of Key Property Services
after the foreclosure sale and had not paid rent from September 3,
2013 to January 31, 2014. Id. at Mot. to Compel Payment of Rent Into
the Registry of the Ct. (Jan. 2, 2014).
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diversity jurisdiction, as the back rent being sought did not exceed
that amount and as possession of premises has no inherent monetary
value.
(Id.
at 2-4.)
This Court issued an Order adopting the magistrate judge’s
Report and Recommendation and the case was remanded on March 24,
2014.
Notwithstanding this ruling, three weeks later, on April 15,
2014, the Bambergs once again removed this very same state-court
dispossessory action back to federal court.
See Key Prop. Servs. v.
Bamberg, Civ. Action No. 1:14-cv-01107-JEC-GGB, Order & Final Report
& Recommendation [Dkt. 4] (N.D. Ga. Apr. 17, 2014)(Brill, Mag. J.).
Not surprisingly, as there were no new facts or legal justification
for the removal, the magistrate judge once again recommended remand.
Id.
On this occasion, Key Property asked that the Court award
attorneys’ fees and costs, given the Bambergs’ obviously futile
removal of an action that had just been remanded less than three
weeks before.
This
Id. at [Dkt. 2].
Court
recommending
adopted
remand,
but
attorney’s fees and costs.
the
did
Order
not
of
require
(Id. at Dkt. 8.)
the
the
magistrate
Bambergs
judge
to
pay
Following issuance of
this Order, on June 18, 2014, this case was once again remanded to
Henry County Magistrate Court.
Undaunted, less than one week later, the Bambergs are now back
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in federal court, once again seeking to have this Court enjoin the
Henry County Magistrate Court from finalizing this dispossessory
action and to enjoin the defendants from evicting the Bambergs. That
is, on June 23, 2014, the Bambergs filed this present action against
Key Property Services and a variety of other entities. The next day,
June 24, 2013, the Henry County Magistrate Court granted SRP Sub a
Dispossessory Judgment and Order, awarding it a writ of possession to
the Johnson Court property as of July 1, 2014.
for TRO, at Ex. A.)
(Appl. [1] at Mot.
That same day, plaintiffs filed their motion for
a temporary restraining order, again asking this Court to enter an
emergency injunctive order enjoining any and all from ejecting the
Bambergs from the property.
(Id. at Mot. for TRO, at 1-2.)
DISCUSSION
I.
JURISDICTION
This case is initially before the Court to determine whether the
plaintiffs are entitled to proceed in forma pauperis, as they have
again requested to do. The federal in forma pauperis statute ensures
that indigent litigants have access to federal courts.
28 U.S.C. §
1915 (2014); Neitzke v. Williams, 490 U.S. 319, 324 (1989)(citing
Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 342-43 (1948)).
Because a litigant proceeding in forma pauperis “lacks an economic
incentive to refrain from filing frivolous, malicious, or repetitive
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lawsuits”, § 1915 permits the Court to dismiss the action upon
determining that it is frivolous or malicious, fails to state a claim
for relief, or seeks relief from a party that is immune from such
claims.
Neitzke, 490 U.S. at 324; 28 U.S.C. § 1915(e)(2)(B); see
also Wilson v. Smith, ___ Fed. App’x ___, 2014 WL 2118716, at *1
(11th Cir. 2014).
As with any other action, it is the Court’s obligation to
confirm that it possesses subject matter jurisdiction over the
plaintiff’s claims.
See Walker v. Sun Trust Bank of Thomasville,
Ga., 363 Fed. App’x 11, 15 (11th Cir. 2010) and Arbaugh v. Y&H Corp.,
546 U.S. 500, 514 (2006)(stating that courts “have an independent
obligation to determine whether subject-matter jurisdiction exists,
even in the absence of a challenge from any party.”)
Obviously, if
the court lacks jurisdiction, the plaintiffs’ complaint will be
deemed frivolous and in forma pauperis status will not be conferred.
Not surprisingly–-having previously ruled twice before that
there is no subject matter jurisdiction–-the Court does so again and
directs that this case be dismissed on that ground.
See Davis v.
Ryan Oaks Apartment, 357 Fed. App’x 237, 238-39 (11th Cir. 2009).
party
who
invokes
the
court’s
establishing that it is proper.
1184, 1216 (11th Cir. 2007).
jurisdiction
the
burden
of
Lowery v. Ala. Power Co., 483 F.3d
Plaintiffs, once again, have failed to
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has
A
do so.
First, diversity jurisdiction is not available.
28 U.S.C. §
1332(a)(1) (2014). The latter statute requires complete diversity of
parties; “every plaintiff must be diverse from every defendant.”
Id.; Triggs v. John Crump Toyota, Inc., 154 F.3d 1284, 1287 (11th
Cir. 1998).
Both plaintiff Bamberg and defendant Gehren Firm PC are
citizens of Georgia, so complete diversity does not exist here. (See
Compl. [3] at 2-3, 5, Exs. A(9), B.)
Second, plaintiffs have failed to show the existence of federal
question jurisdiction.
28 U.S.C. § 1331 (2014).
While plaintiffs’
complaint and motion are littered with citations to the Constitution,
federal treaties, and 18 U.S.C. § 242 (1996), their causes of action
all ultimately relate to a claim akin to wrongful foreclosure and
eviction.
damages
Indeed, plaintiffs pray for damages for gross negligence,
for
emotional
distress
resulting
from
illegal
threats,
injunctive and declaratory relief, to quiet title pursuant to O.C.G.A
§ 23-3-60, -61 (1966), to void the debt supposedly due under the home
mortgage loan, and damages for emotional distress resulting from
Bamberg’s July 1, 2013 bankruptcy filing.
(Compl. [3] at 12.)
The
references to federal law, treaties, and the Constitution do not
supply federal question jurisdiction, but simply reflect plaintiffs;
assertion that their interest in the Johnson Court property traces
back to the Georgia Land Lotteries of 1821.
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(See, e.g., Compl. [3]
at 3-11 and Mot. for TRO [4] at 2-5.)
Yet, plaintiffs’ causes of action are not created by federal
law, nor does their alleged right to relief “‘depend[] upon the
construction
or
application
of
federal
law’”,
let
alone
“a
substantial [contested federal issue], indicating a serious federal
interest in claiming the advantages thought to be inherent in a
federal forum”.
Merrell Dow Pharm. Inc. v. Thompson, 478 U.S. 804,
808 (1986); Grable & Sons Metal Prods., Inc. v. Darue Eng’g & Mfg.,
545 U.S. 308, 313 (2005)(quoting Smith v. Kansas City Title & Trust
Co., 255 U.S. 180, 199 (1921) and describing jurisdiction over
federal
issues
intertwined
with
state
law
claims).
Thus,
consideration of plaintiffs’ complaint and motion does not require
the Court to resolve a disputed question of federal law.
Further, “a federal court may dismiss a federal question claim
for lack of subject matter jurisdiction [] if (1) ‘the alleged claim
under the Constitution or federal statutes clearly appears to be
immaterial
and
made
solely
for
the
purpose
of
obtaining
jurisdiction’; or (2) ‘such a claim is wholly insubstantial and
frivolous.’” Blue Cross & Blue Shield of Ala. v. Sanders, 138 F.3d
1347, 1352 (11th Cir. 1998)(quoting Bell v. Hood, 327 U.S. 678, 68283 (1946)(emphasis in original)).
Even when charitably construed,
plaintiffs’ citations to the Contract Clause of the United States
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Constitution,
18
U.S.C.
§
242,
and
“Gross
Negligence
of
Constitutional Right against the Laws of the Land” clearly meet this
standard, as no state actor is present and plaintiffs do not allege
any entanglement with such or action taken under color of state law
by defendants.2 (Compl. [3] at 8, 12.) Similarly, plaintiffs’ prayer
for damages in the form of $10 million in gold coin for violations of
“Treaty Law, The Georgia Constitution, [and] Laws of the Land” is
patently insubstantial and frivolous.
For these reasons, plaintiffs’ action does not arise under the
Constitution, laws, or treaties of the United States, and federal
question jurisdiction is improper.
Thus, the Court does not have
jurisdiction over plaintiffs’ action, meaning that the action is
frivolous under § 1915 and further that the action must be dismissed.
II.
PLAINTIFFS’ MOTION FOR A TEMPORARY RESTRAINING ORDER
Even assuming that the Court has jurisdiction over plaintiffs’
action, plaintiff has made no showing to support the issuance of
injunctive relief.
A.
Standard for a TRO
Upon motion, district courts may issue temporary restraining
orders only if
2
Plaintiffs’ paragraph regarding § 242 does not make any
factual allegations, but merely describes the conduct made illegal by
the statute. (Compl. [3] at 8.)
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specific facts in an affidavit or a verified complaint
clearly show that immediate and irreparable injury, loss,
or damage will result to the movant before the adverse
party can be heard in opposition; and the movant []
certifies in writing any efforts made to give notice and
the reasons why it should not be required.
FED. R. CIV. P. 65(b)(1) (2014).
More specifically, the Eleventh
Circuit requires that the party seeking a temporary restraining order
show that “(a) there is a substantial likelihood of success on the
merits; (b) the TRO [] is necessary to prevent irreparable injury;
(c) the threatened injury outweighs the harm that the TRO [] would
cause to the non-movant; and (d) the TRO [] would not be averse to
the public interest.”
Parker v. St. Bd. Of Pardons & Paroles, 275
F.3d 1032, 1034-35 (11th Cir. 2001).
B.
Plaintiffs’ Request for a Temporary Restraining Order
Violates the Rooker-Feldman Doctrine and the AntiInjunction Act
Plaintiffs’ request for a temporary restraining order seeks to
enjoin
defendants
from
taking
possession
of
the
Johnson
Court
property pursuant to an order from the Henry County Magistrate Court.
The magistrate issued his order after speaking with Bamberg and
hearing the testimony of the parties.
Key Prop. Servs., Case No.
2013-4804-CB, at Notice Printed (June 19, 2014), Calendar (June 24,
2014); (Mot. for TRO [4] at Ex. A).
appealable.
review it.
(Mot. for TRO [4] at Ex. A.)
Thus, the Court cannot
See Christophe v. Morris, 198 Fed. App’x 818, 825 (11th
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Further, the order is now
Cir. 2006)(“To the extent that Christophe’s complaint was construed
as a challenge to the state court’s ruling that she violated her
lease, and, therefore, that the landlord was legally permitted to an
order of dispossession, the district court properly dismissed the
complaint under the Rooker-Feldman doctrine[.]”) and Ware v. Polk
Cnty. Bd. Of Cnty. Com’rs, 394 Fed. App’x 606, 608-09 (11th Cir.
2010).
Moreover,
insofar
as
plaintiff’s
complaint
seeks
an
order
granting an “[i]mmediate ‘Stay of Mandate’ from any lower court
pursuing litigation in this matter”, an “[i]mmediate ‘Stay’ of all
proceedings to include lower courts in the State of Georgia”, or
otherwise enjoining proceedings previously initiated in Henry County
or any other state court, the Court cannot grant such relief because
it would violate the Anti-Injunction Act and does not fall under any
of the three accepted exceptions.
(Compl. [3] at 12, Mot. for TRO,
at 7); 28 U.S.C. § 2283 (1948); see Atl. Coast Line R. Co. v. Bhd. of
Locomotive Eng’rs, 398 U.S. 281, 286-87 (1970) and Peterson v.
MersCorp Holdings, Inc., Civ. Action No. 1:12-cv-00014-JEC, 2012 WL
3961211, at *9 (N.D. Ga. Sept. 10, 2012)(Carnes, C.J.).
C.
Plaintiffs Have Failed to Show a Likelihood of Success on
the Merits
In any case, plaintiffs’ request for a temporary restraining
order fails because they have not shown any likelihood of success on
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the merits.
Plaintiffs’ motion mostly consists of string cites to
treaties and case law from the early and mid-1800’s.
[4] at 2-5.)
(Mot. for TRO
Besides a section describing the inapplicable standard
for obtaining a temporary restraining order or preliminary injunction
under Georgia law, (id.), the only paragraph of any substance in
plaintiffs’ motion states that “[p]laintiff has made a showing that
without an Emergency Order granting a Temporary Restraining Order or
Preliminary Injunction, [p]laintiff will be irreparably harmed”,
(id.), and that “[p]laintiff (sic) petition is Verified, [p]laintiff
(sic) has shown the Court that they are the true legal owners of this
Land Grant/Patent.”
(Id.)
Even when considered in light of the more lenient standard to
which pro se filings are held, these conclusory statements do not
satisfy the heavy burden of showing likelihood of success on the
merits that plaintiffs must meet to obtain the extraordinary and
drastic remedy of a temporary restraining order. Bolden v. Odum, 695
F.2d 549, 550 (11th Cir. 1983)(discussing pro se pleadings); United
States v. Jefferson Cnty., 720 F.2d 1511, 1519 (11th Cir. 1983)
(discussing preliminary injunctions); see Matveychuk v. One W. Bank,
FSB, Civ. Action No. 1:13-cv-3464-AT, 2013 WL 6871981, *4 (N.D. Ga.
Dec.
19,
2013)(Totenburg,
J.)(denying
TRO
for
failure
to
show
likelihood of success on the merits) and Peterson, 2012 WL 3961211 at
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9 (same).
CONCLUSION
Because the Court does not have jurisdiction over plaintiffs’
action, the Clerk of Court is ordered to DISMISS and CLOSE this case.
FED. R. CIV. P. 12(h)(3) (2014); Herskowitz v. Reid, 187 Fed. App’x
911, 912-13 (11th Cir. 2006). Even if the Court had jurisdiction, it
would,
once
again,
deny
plaintiffs’
Motion
for
a
Temporary
Restraining Order [4].
Further, this action marks the third occasion on which Bamberg
is before the Court in forma pauperis regarding the Johnson Court
property.
And for the third time the Court has found her claims to
be without merit.
For this reason, the initiation of any further
actions by Bamberg with respect to the Johnson Court property must be
accompanied by the payment of filing fees.
Should the Bambergs
refile an action concerning this property and again request IFP
status, they will have disobeyed an order of the Court and be subject
to an Order of contempt of court, with the possibility of subtantial
fines.
Further, should the plaintiffs again attempt to file in
federal court an action concerning this property and should the named
defendants expend resources defending that action, plaintiffs will be
ordered to pay attorney’s fees and costs.
The Clerk is directed to close this action.
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SO ORDERED, this 30th day of June, 2014.
/s/ Julie E. Carnes
JULIE E. CARNES
CHIEF UNITED STATES DISTRICT JUDGE
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