HMY Realty Group, LLC v. Marolbel
Filing
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ORDER REMANDING this case to the Magistrate Court of DeKalb County. The Court concludes that it does not have original jurisdiction over HMY Realty Group, LLC's case from state court. As a result, Marolbel has not shown a legitimate basis to remove this dispossessory action to federal court. Signed by Judge Richard W. Story on 8/19/2014. (cem)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
HMY REALTY GROUP, LLC,
Plaintiff,
v.
NORMA MAROLBEL,
Defendant.
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CIVIL ACTION NO.
1:14-CV-2526-RWS
ORDER
On August 5, 2014, Norma Marolbel removed this action to this Court
from the Magistrate Court of DeKalb County. [1] On August 6, 2014,
Magistrate Judge Russell G. Vineyard entered an Order [2] granting Marolbel’s
Application to Proceed In Forma Pauperis but ordering that service of process
not issue because it appeared that the Court lacks subject matter jurisdiction
over the case. The case was submitted to the undersigned for a frivolity
determination pursuant to 28 U.S.C. § 1915(e)(2).
Under § 1915(e)(2)(B), a court must “sua sponte dismiss [an indigent
nonprisoner’s] complaint or any portion thereof which is frivolous, malicious,
fails to state a claim, or seeks damages from defendants who are immune.”
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Robert v. Garrett, No. 3:07-cv-625, 2007 WL 2320064, *1 (M.D. Ala. Aug. 10,
2007); see also 28 U.S.C. § 1915(e)(2)(B)(i)-(iii). A claim is frivolous under §
1915(e)(2)(B)(I) “if it is ‘without arguable merit either in law or fact.’ ” Napier
v. Preslicka, 314 F.3d 528, 531 (11th Cir . 2002) (quoting Bilal v. Driver, 251
F.3d 1346, 1349 (11th Cir. 2001)). A “document filed pro se is ‘to be liberally
construed,’ . . . , and ‘a pro se complaint, however inartfully pleaded, must be
held to less stringent standards than formal pleadings drafted by lawyers.’ ”
Erikson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S.
97, 106 (1976)); see also Mederos v. United States, 218 F.3d 1252, 1254 (11th
Cir. 2000) (discussing that pro se filings are entitled to liberal construction).
For the reasons discussed below, the Court determines that Marolbel
improvidently removed this state court action to this Court.
A defendant may remove a case from state to federal court if the federal
court has original jurisdiction over the case. 28 U.S.C. § 1441(a). However, “a
court should inquire into whether it has subject matter jurisdiction at the earliest
possible stage in the proceedings. Indeed, it is well settled that a federal court is
obligated to inquire into subject matter jurisdiction sua sponte whenever it may
be lacking.” Univ. of S. Ala. v. Am. Tobacco Co., 168 F.3d 405, 410 (11th Cir.
1999). Thus, a “district court first must determine whether it has original
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jurisdiction over the . . . claims” of the party asserting federal jurisdiction. Id.
Original jurisdiction under § 1441 arises if there is diversity
of parties or a federal question. See 28 U.S.C. § 1441(b); Geddes v. Am.
Airlines, Inc., 321 F.3d 1349, 1352 n.2 (11th Cir. 2003); Blab T.V. of Mobile,
Inc. v. Comcast Cable Commc’ns, Inc., 182 F.3d 851, 854 (11th Cir. 1999). “The
district court may remand a case sua sponte for lack of subject matter
jurisdiction at any time.” Corporate Mgmt. Advisors, Inc. v. Artjen Complexus,
Inc., 561 F.3d 1294, 1296 (11th Cir. 2009); see also 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.”).
Marolbel seeks removal apparently on the grounds that the dispossessory
action undertaken by HMY Realty Group (“HMY”) has violated 15 U.S.C. §
1692, Rule 60 of the Federal Rules of Civil Procedure, the due process clause of
the Fourteenth Amendment, and a state statute, O.C.G.A. § 51-1-6. The Court
also examines whether there is diversity jurisdiction. For the reasons discussed
below, the Court concludes that the it does not have original jurisdiction over
this case and that, as a result, Marolbel improvidently removed this case from
the Magistrate Court of DeKalb County.
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1.
Diversity Jurisdiction
Under 28 U.S.C. § 1332, district courts “have original jurisdiction of all
civil actions where the matter in controversy exceeds the sum or value of
$75,000” and is between citizens of different states. 28 U.S.C. § 1332(a).
The Court concludes that Marolbel cannot show diversity jurisdiction
because she cannot meet the amount in controversy requirement. As this Court
has held in a similar context:
In this case, Defendant has failed to demonstrate that either there is
diversity of citizenship between him and Defendant or that the
amount in controversy in this matter exceeds $75,000.00. As a
dispossessory proceeding under Georgia law is not an ownership
dispute, but rather only a dispute over the limited right to
possession, title to the property is not at issue and, accordingly, the
removing defendant may not rely on the value of the property as a
whole to satisfy the amount in controversy requirement. See
Novastar Mortgage, Inc. v. Bennett, 173 F. Supp. 2d 1358, 136162 (N.D. Ga. 2001) (holding on nearly identical facts that claim for
ejectment in summary dispossessory proceeding after foreclosure
sale cannot satisfy the amount in controversy
requirement as a matter of law). Accordingly, 28 U.S.C. § 1332
cannot serve as a basis for removal.
Fed. Home Loan Mortg. Corp. v. Williams, Nos. 1:07-CV-2864-RWS, 1:07CV-2865-RWS, 2008 WL 115096, *2 (N.D. Ga. Jan. 29, 2008). As a result,
Marolbel cannot meet the amount in controversy requirement in this
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dispossessory proceeding and removal is not proper on the basis of diversity of
citizenship.
Even if she could satisfy the amount in controversy, diversity of
citizenship sufficient to support removal still would not be present in this case.
Under § 1332(a), an in-state plaintiff may invoke diversity jurisdiction in a
federal court that sits in the state where the plaintiff resides. Lincoln Prop. Co.
v. Roche, 546 U.S. 81, 89 (2005). The removal statute does not provide an instate defendant the same flexibility in removing cases. Id. at 89-90 (“The scales
are not evenly balanced, however[,]” for plaintiffs bringing a case under
diversity jurisdiction and for defendants removing a case under diversity
jurisdiction.). Instead, § 1441(b) bars removal on the basis of diversity if the
“defendant is a citizen of the State in which [the] action is brought.” Id. at 90
(quoting 28 U.S.C. § 1446(b)); see also Caterpillar Inc. v. Lewis, 519 U.S. 61,
69 (1996). That code section does not permit removal on diversity grounds to
the Northern District of Georgia because Defendant is a citizen of the State of
Georgia. Stated another way, Defendant, a citizen of Georgia, cannot
remove the case to a federal court in Georgia because Plaintiff brought the
dispossessory action in Georgia. See Fed. Nat’l Mortg. Ass’n v. LeCrone, 868
F.2d 190, 194 (6th Cir. 1989) (holding that defendant’s removal of foreclosure
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action brought in an Ohio state court to an Ohio federal court was improper
because defendant was a citizen of Ohio); see also Bregman v. Alderman, 955
F.2d 660, 663 (11th Cir. 1992) (finding removal improper because although
there was diversity of citizenship, two of the defendants were citizens of the
forum state).
2.
Federal Question Jurisdiction
A federal question exists if a civil action is one “arising under the
Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. “To
remove a case as one falling within federal question jurisdiction, the federal
question ordinarily must appear on the face of a properly pleaded complaint; an
anticipated or actual federal defense generally does not qualify a case for
removal.” Jefferson Cnty., Ala. v. Acker, 527 U.S. 423, 530-31 (1999); Ervast v.
Flexible Prods. Co., 346 F.3d 1007, 1013 (11th Cir. 2003) (“[U]nless the face of
a plaintiff’s complaint states a federal question, a defendant may not remove a
case to federal court on [a federal question] basis, even though a possible
defense might involve a federal question.”). The removing party bears the
burden of proving a federal question exists. See Friedman v. N.Y. Life Ins.
Co., 410 F.3d 1350, 1353 (11th Cir. 2005); Leonard v. Enter. Rent a Car, 279
F.3d 967, 972 (11th Cir. 2002). For the reasons below, the Court finds that
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Marolbel’s grounds for removal do not demonstrate that the Court has federal
question jurisdiction over the dispossessory action.
First, the Court concludes that 15 U.S.C. § 1692 does not provide a basis
for federal question jurisdiction. This provision of the Fair Debt Collection
Practices Act prohibits abusive, deceptive, and unfair debt collection practices
by debt collectors against consumers. See 15 U.S.C. § 1692(a). There is no
indication that HMY pleaded a claim under § 1692 in the state court
proceedings. Indeed, it does not make sense that HMY would have raised §
1692 as a basis for dispossessing Marolbel from the residence because HMY’s
actions are a result of another’s debt, so it would not seek protection from
collecting the debt. Instead, Marolbel’s reliance on § 1692 is only a defense
because she asserts that HMY violated § 1692. See Wells Fargo Bank, N.A. v.
Ricotta, No. 06-cv-1702, 2006 WL 2548339, *1 (D. Colo. Aug. 31, 2006)
(“The Defendant’s conclusory and uncited assertion that an attempt to foreclose
somehow implicates the Fair Debt Collection Practices Act is, at best, an
indication that the Defendant intends to assert a federal-law defense or
counterclaim to the state-law foreclosure proceeding.”). A defense to a civil
action does not provide a basis for removal. See, e.g., Acker, 527 U.S. at 431
(noting that an actual or anticipated defense does not generally qualify a case
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for removal). As a result, the Court finds that Marolbel has not shown that a
federal question exists to permit removal of HMY’s state court action on the
basis of § 1692. See also HSBC Mortg. Servs., Inc. v. Cunningham, No. 1:07cv-2480-WSD-JFK, 2007 WL 3005337 (N.D. Ga. Oct.12, 2007) (remanding a
dispossessory action to the state court for lack of subject matter jurisdiction).
Second, Rule 60 of the Federal Rules of Civil Procedure does not provide
a basis for removal on federal question grounds. As a procedural rule, Rule 60
does not provide any substantive rights, and a lawsuit cannot arise under Rule
60. See Whitaker & Co. v. Sewer Imp. Dist. No. 1 of Dardanelle, Ark., 221 F.2d
649, 652 (8th Cir. 1955) (describing the Federal Rules of Civil Procedure as
“adjective” and stating that “[s]ubstantive rights are not determined by these
Rules”); Transwestern Pipeline Co., LLC v. 9.32 Acres, More or Less, of
Permanent Easement Located in Maricopa County, 544 F. Supp. 2d 939, 945
(D. Ariz. 2008) (“It is well recognized that the federal rules
of civil procedure are just that, and cannot be used to abridge, enlarge or modify
substantive rights.”); State Police for Automatic Retirement Ass’n v. Difava,
164 F. Supp. 2d 141, 156 (D. Mass. 2001) (“[T]he Federal Rules of Civil
Procedure do not create independently enforceable rights upon which [a
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plaintiff] may sue.”). This Rule therefore does not provide a basis for removal
on federal question grounds.
Third, the Court concludes that the Fourteenth Amendment does not
provide a basis for removal of HMY’s state court action. The Fourteenth
Amendment prohibits, in relevant part, any state from “depriv[ing] any person
of life, liberty, or property, without due process of law.” U.S. Const. Amend.
XIV § 1. Here, Marolbel is relying on the Fourteenth Amendment as a defense
to the eviction proceedings by asserting that the state court process violated her
due process rights. [See Doc. 1-1 at 2]. A defense to civil action does not
provide a basis for removal. See, e.g., Acker, 527 U.S. at 431 (noting that an
actual or anticipated defense does not generally qualify a case for removal).
Therefore, the Court concludes that the Fourteenth Amendment’s due process
clause does not provide this Court with subject matter jurisdiction over the
dispossessory action. See Christiano v. Shapiro, No. 87-cv-3104, 1987 WL
18778, *1 (E.D.N.Y. Oct. 14, 1987) (remanding case to state court in part
because “[p]etitioner’s claimed denial of due process [was] collateral to the
landlord-tenant action initiated by the landlord”).
Finally, O.C.G.A. § 51-1-6 does not provide a basis for federal question
jurisdiction because it is a state statute. Marolbel’s illogical references to
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alleged violation of 28 U.S.C. § 1367 (addressing supplemental jurisdiction)
and 28 U.S.C. § 1446(d) (regarding the procedure for removal of actions) do
not cure this problem.
Without federal question or diversity jurisdiction, the Court concludes
that it does not have original jurisdiction over HMY’s case from state court. As
a result, Marolbel has not shown a legitimate basis to remove this dispossessory
action to federal court.
III.
Conclusion
For the aforementioned reasons, the Clerk is hereby ORDERED to
REMAND the case to the Magistrate Court of DeKalb County.
SO ORDERED, this 19th day of August, 2014.
_______________________________
RICHARD W. STORY
UNITED STATES DISTRICT JUDGE
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