Prime Star - H Fund I Trust, Inc. v. Wilkerson
Filing
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OPINION AND ORDER adopting Magistrate Judge J. Clay Fullers Final Report and Recommendation 3 and remanding this action to the Magistrate Court of Fulton County, Georgia. Signed by Judge William S. Duffey, Jr on 10/25/16. (ddm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
PRIME STAR-H FUND I TRUST,
INC.,
Plaintiff,
v.
1:16-cv-3601-WSD
MICHAEL E. WILKERSON, and all
others in possession,
Defendant.
OPINION AND ORDER
This matter is before the Court on Magistrate Judge J. Clay Fuller’s Final
Report and Recommendation [3] (“R&R”), which recommends remanding this
dispossessory action to the Magistrate Court of Fulton County, Georgia.
I.
BACKGROUND
On September 8, 2016, Plaintiff Prime Star-H Fund I Trust, Inc. (“Plaintiff”)
initiated a dispossessory proceeding against its tenant, Defendant Michael E.
Wilkerson (“Defendant”) in the Magistrate Court of Fulton County, Georgia. 1 The
Complaint asserts that Defendant is a tenant at sufferance following a foreclosure
sale and seeks possession of premises currently occupied by Defendant.
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No. 16ED007727.
On September 26, 2016, Defendant, proceeding pro se, removed the Fulton
County Action to this Court by filing his Notice of Removal and an application to
proceed in forma pauperis (“IFP”) [1]. Defendant asserts that there is federal
subject matter jurisdiction because there is in the case a question of federal law. In
his Notice of Removal, Defendant claims that the dispossessory “proceedings [are]
occurring in violation of 12 USC 2605(A) [sic] and the Fourteenth Amendment of
the U.S. Constitution.” (Notice of Removal at 1). 2
On September 29, 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. He found that federal subject
matter jurisdiction was not present and recommended that the Court remand the
case to the Magistrate Court of Fulton 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 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
2
12 U.S.C. § 2605(a) provides: “Each person who makes a federally related
mortgage loan shall disclose to each person who applies for the loan, at the time of
application for the loan, whether the servicing of the loan may be assigned, sold, or
transferred to any other person at any time while the loan is outstanding.”
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based on diversity of citizenship because Defendant, in his Notice of Removal,
appears to base subject matter jurisdiction only on federal question.
There are no 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
conduct a plain error review of the record. United States v. Slay, 714 F.2d 1093,
1095 (11th Cir. 1983), cert. denied, 464 U.S. 1050 (1984).
B.
Analysis
Defendant does not object to the R&R’s finding 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
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federal question is presented on the face of a plaintiff’s well-pleaded complaint and
that 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); Holms Group, Inc. v. Vornado Air Circulation
Sys., Inc., 535 U.S. 826, 830-32 (2002).
Although not alleged in his Notice of Removal, the Court concludes that
diversity jurisdiction is not present in this action because Defendant fails to allege
any facts to show that the parties’ citizenship is completely diverse, or that the
amount in controversy exceeds the statutory 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 claims to determine
if the amount-in-controversy requirement is satisfied. See 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
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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.”).
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
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 J. Clay Fuller’s Final
Report and Recommendation [3] is ADOPTED.
IT IS FURTHER ORDERED that this action is REMANDED to the
Magistrate Court of Fulton County, Georgia.
SO ORDERED this 25th day of October, 2016.
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