Wesley Providence et al v. Johnson
Filing
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OPINION AND ORDER adopting 3 Final Report and Recommendation. IT IS FURTHER ORDERED that this action is REMANDED to the Magistrate Court of DeKalb County, Georgia. Signed by Judge William S. Duffey, Jr on 2/24/2016. (anc)
against Defendant in the Magistrate Court of DeKalb County, Georgia.2 The
Complaint seeks possession of premises currently occupied by Defendant and
seeks past due rent, fees and costs.
On January 11, 2016, Defendant, proceeding pro se, removed the DeKalb
County action to this Court by filing her Petition for Removal and an application to
proceed in forma pauperis (“IFP”) [1]. Defendant appears to assert that there is
federal subject matter jurisdiction because there is in the case a question of federal
law. In her Petition for Removal, Defendant claims that Plaintiff violated “15 USC
1692 [sic]” and Rule 60 of the Federal Rules of Civil Procedure, “having a legal
duty to abort eviction pursuant to O.C.G.A. [§] 51-1-6,” and the Due Process
“Clauses” of the Fourteenth Amendment. (Pet. For Removal [1.1 at 2]).
On January 19, 2016, Magistrate Judge Fuller granted Defendant’s
application to proceed IFP. The Magistrate Judge then considered, sua sponte,
whether there is federal subject matter jurisdiction. The Court found that federal
subject matter jurisdiction was not present and recommended that the Court
remand the case to the Magistrate Court of DeKalb County. The Magistrate Judge
found that the Complaint filed in Magistrate Court asserts a state court
dispossessory action and does not allege federal law claims. Because a federal law
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No. 15D68187
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defense or counterclaim does not confer federal jurisdiction, the Magistrate Judge
concluded that the Court does not have federal question jurisdiction over this
matter. The Magistrate Judge did not consider whether subject-matter jurisdiction
could be based on diversity of citizenship because Defendant, in her Petition for
Removal, appeared to base subject-matter jurisdiction only on federal question.
On February 5, 2016, Defendant filed her 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
judge’s report and recommendation. 28 U.S.C. § 636(b)(1); Williams
v. Wainwright, 681 F.2d 732, 732 (11th Cir. 1982), cert. denied, 459 U.S. 1112
(1983). 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
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conduct a plain error review of the record. United States v. Slay, 714 F.2d 1093,
1095 (11th Cir. 1983).3
B.
Analysis
Defendant does not object to the R&R’s conclusion that Plaintiff’s
Complaint does not present a federal question. The Court does not find any plain
error in this conclusion. It is well-settled that federal-question jurisdiction exists
only when a federal question is presented on the face of a plaintiff’s well-pleaded
complaint and that the assertions of defenses or counterclaims based on federal law
cannot confer federal question jurisdiction over a cause of action. See Beneficial
Nat’l Bank v. Anderson, 539 U.S. 1, 6 (2003); Holmes Group, Inc. v. Vornado Air
Circulation Sys., Inc., 535 U.S. 826, 830-32 (2002).
To the extent Defendant conclusorily claims in her Objections that diversity
exists, Defendant fails to allege any facts to show that the parties’ citizenship is
completely diverse, or that the amount in controversy exceeds the statutory
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To the extent Defendant asserts in her objections that the R&R is
“unconstitutional with respect to the ‘DUE PROCESS CLAUSES’ 15th
Amendment & 5th Amendment’s Due Process [sic],” Defendant’s objections do not
address the Magistrate Judge’s reasons for recommending remand. (Obj. at 2); See
Marsden v. Moore, 847 F.2d 1536, 1548 (11th Cir. 1988) (“Parties filing
objections to a magistrate’s report and recommendation must specifically identify
those findings objected to. Frivolous, conclusive, or general objections need not be
considered by the district court.”). These are not valid objections, and the Court
will not consider them.
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threshold of $75,000. See 28 U.S.C. § 1332(a). Even if there is complete diversity
between the parties, the amount-in-controversy requirement cannot be satisfied
because this is a dispossessory action. The Court must look only to Plaintiff’s
claim to determine if the amount-in-controversy requirement is satisfied. See, e.g.,
Novastar Mortg. Inc. v. Bennett, 173 F. Supp. 2d 1358, 1361 (N.D. Ga. 2001),
aff’d, 35 F. App’x 585 (11th Cir. 2002). The Complaint here seeks possession of
property Defendant currently possesses. The amount-in-controversy requirement
is not satisfied and removal is not proper based on diversity of citizenship. See
Fed. Home Loan Mortg. Corp. v. Williams, Nos. 1:07-cv-2864-RWS,
1:07-cv-2865-RWS, 2008 WL 115096, at *2 (N.D. Ga. Jan. 29, 2008) (“[A]
dispossessory proceeding under Georgia law is not an ownership dispute, but
rather only a dispute over the limited right to possession, title to 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.”). The Court
concludes that diversity jurisdiction is not present in this action and Defendant’s
objection based on diversity jurisdiction is overruled.
Because the Court lacks both federal question and diversity jurisdiction, this
action is required to be remanded to the state court. See 28 U.S.C. § 1447(c) (“If at
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any time before final judgment it appears that the district court lacks subject matter
jurisdiction, the case shall be remanded.”).4
III.
CONCLUSION
Accordingly, for the foregoing reasons,
IT IS HEREBY ORDERED that Defendant’s Objections [5] are
OVERRULED.
IT IS FURTHER ORDERED that Magistrate Judge J. Clay Fuller’s
Report and Recommendation [3] is ADOPTED.
IT IS FURTHER ORDERED that this action is REMANDED to the
Magistrate Court of DeKalb County, Georgia.
SO ORDERED this 24th day of February, 2016.
_______________________________
WILLIAM S. DUFFEY, JR.
UNITED STATES DISTRICT JUDGE
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Even if subject-matter jurisdiction existed, the Court notes that it is unable to
grant Defendant the relief she seeks—a stay of state court eviction proceedings—
because a federal court is prohibited under the Anti-Injunction Act, 28 U.S.C.
§ 2283, from enjoining a state court eviction proceeding.
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