Bayview Loan Servicing, LLC v. White

Filing 3

OPINION AND ORDER granting Plaintiffs Motion to Remand 2 and directing the Clerk to remand this action to the Magistrate Court of Fulton County, Georgia. Signed by Judge William S. Duffey, Jr on 4/20/17. (ddm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
BAYVIEW LOAN SERVICING,
LLC,
Plaintiff,
v.

1:16-cv-3643-WSD

CALVIN R. WHITE, and All
Others,
Defendant.

OPINION AND ORDER
This matter is before the Court on Plaintiff Bayview Loan Servicing, LLC’s
(“Plaintiff” or “Bayview”) Motion to Remand [2].
I.

BACKGROUND
On September 7, 2016, Bayview filed a dispossessory warrant

(“Complaint”) against its tenant, Defendant Calvin R. White (“Defendant”) in the
Magistrate Court of Fulton County, Georgia.1 The Complaint asserts that
Defendant is a tenant at sufferance following a foreclosure sale of the Property and
seeks possession of premises currently occupied by Defendant.

1

No. 16ED007700.

On September 21, 2016, Defendant filed, in the Magistrate Court of Fulton
County, his “Dispossessory Answer” (“Answer”). (Notice of Removal [1] at 7).
On September 28, 2016, Defendant removed the Fulton County Action to
this Court by filing his Notice of Removal. Defendant appears to assert 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 Plaintiff violated
“various systematic and premeditated deprivations of fundamental [r]ights
guaranteed by the U.S. Constitution” and “18 U.S.C. §§ 241 and 242.” (Notice of
Removal at 3). Defendant also asserts a counterclaim, under 42 U.S.C. § 1983, for
an alleged violation of his constitutional rights. (Id. at 1).
On February 8, 2017, Plaintiff moved to remand the action to state court for
lack of subject-matter jurisdiction [2]. Plaintiff argues that remand is proper
because the Complaint filed in magistrate court asserts a state court dispossessory
action and does not present a question of federal law. (See [2.1] at 4). Defendant
did not respond to Plaintiff’s motion.
II.

DISCUSSION
A.

Legal Standard

Congress has provided that “any civil action brought in a State court of
which the district courts of the United States have original jurisdiction, may be
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removed by the defendant” to federal court. 28 U.S.C. § 1441(a). When a case is
removed, “the burden is on the party who sought removal to demonstrate that
federal jurisdiction exists.” Kirkland v. Midland Mortg. Co., 243 F.3d 1277, 1281
n.5 (11th Cir. 2001); Williams v. Best Buy Co., 269 F.3d 1316, 1319 (11th Cir.
2001). “[U]ncertainties are resolved in favor of remand.” Burns v. Windsor Ins.
Co., 31 F.3d 1092, 1095 (11th Cir. 1994). Once a case is removed, “[i]f at any
time before final judgment it appears that the district court lacks subject matter
jurisdiction, the case shall be remanded.” 28 U.S.C. § 1447(c).
A removing defendant must file with the district court a notice of removal
“containing a short and plain statement of the grounds for removal.” 28 U.S.C.
§ 1446. When a plaintiff makes a timely motion to remand, “the district court has
before it only the limited universe of evidence available when the motion to
remand is filed – i.e., the notice of removal and accompanying documents.”
Lowery v. Ala. Power Co., 483 F.3d 1184, 1213 (11th Cir. 2007).
B.

Federal-Question Jurisdiction

Removal in this case appears to be based on federal-question jurisdiction,
which extends to “all civil actions arising under the Constitution, laws, or treaties
of the United States.” 28 U.S.C. § 1331. “The presence or absence of
federal-question jurisdiction is governed by the ‘well-pleaded complaint rule,’
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which provides that federal jurisdiction exists only when a federal question is
presented on the face of the plaintiff’s properly pleaded complaint.” Caterpillar
Inc. v. Williams, 482 U.S. 386, 392 (1987).
Here, the record is clear that Plaintiff’s state court Complaint asserts a
dispossessory action and does not allege federal law claims. Defendant asserts in
his Notice of Removal that removal is appropriate based on a perceived violation
of his constitutional rights. Defendant argues that, because the magistrate court
does not conduct jury trials, Defendant is deprived of his Seventh Amendment
rights. Even if the Defendant’s argument were valid, which it is not,2 it is wellsettled 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). Defendant fails to meet his burden to show that removal
2

The Supreme Court has consistently held that the Seventh Amendment
applies only to the federal courts. See, e.g., Osborn v. Haley, 549 U.S. 225, 252 n.
17 (2007) (“If the case was brought in a state court and the [defendant] declines to
remove, the Seventh Amendment would not figure in the case, for it is inapplicable
to proceedings in state court.”) (citing Minneapolis & St. L. R.R. v. Bombolis, 241
U.S. 211, 217 (1916)).

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is proper based on federal question jurisdiction, and Plaintiff’s Motion to Remand
is required to be granted.3
C.

Diversity Jurisdiction

The Court also lacks diversity jurisdiction over this action. Diversity
jurisdiction exists where the amount in controversy exceeds $75,000 and the suit is
between citizens of different states. 28 U.S.C § 1332(a). The record does not
show, and Defendant does not assert, that Plaintiff and Defendant are citizens of
different states.4 Even if there is complete diversity between the parties, the
3

To the extent Defendant claims removal under Section 1443 based on
“various systematic and premeditated deprivations of fundamental Rights [sic]
guaranteed by the U.S. Constitution, [and] by the Constitution of the State of
Georgia,” ([1] at 3) these broad assertions of general constitutional violations are
“phrased in terms of general application available to all persons or citizens, rather
than in the specific language of racial equality that section 1443 demands.” See
Kopec v. Jenkins, 357 F. App’x 213, 214 (11th Cir. 2009) (quoting Georgia
v. Rachel, 384 U.S. 780, 792 (1966)); see also 28 U.S.C. § 1443 (providing
exception to the well-pleaded complaint rule for removal of an action that is
“[a]gainst any person who is denied or cannot enforce in the courts of such State a
right under any law providing for the equal civil rights of citizens of the United
States”); Rachel, 384 U.S. at 788 (Section 1443 requires defendant to show “both
that the right upon which they rely is a ‘right under any law providing for . . . equal
civil rights,’ and that they are ‘denied or cannot enforce’ that right in the courts of
Georgia.”). Removal is not proper based on 28 U.S.C. § 1443 and this action is
required to be remanded for this additional reason.
4
Even if Defendant is a Georgia citizen, Defendant must establish that
Plaintiff is not a citizen of Georgia. Plaintiff appears to be a limited liability
company, and is thus a citizen of any state of which one of its members is a citizen.
See Rolling Greens MHP, L.P. v. Comcast SCH Holdings L.L.C., 374 F.3d 1020,
5

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 Carter v. Butts Cty.,
Ga., et al., 821 F.3d 1310, 1322 (11th Cir. 2006) (quoting Steed v. Fed. Nat’l
Mortg. Corp., 689 S.E.2d 843, 848 (Ga. Ct. App. 2009)) (“[U]nder Georgia law,
‘[w]here former owners of real property remain in possession after a foreclosure
sale, they become tenants at sufferance,’” and are thus subject to a dispossessory
proceeding under O.C.G.A. § 44-7-50, which “provide[s] the exclusive method by
which a landlord may evict the tenant”); 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

1022 (11th Cir. 2004). Defendant has not identified Plaintiff’s members and their
respective citizenships, and the Court is thus unable to determine if “every plaintiff
[is] diverse from every defendant.” See Palmer Hosp. Auth. of Randolph Cnty., 22
F.3d 1559, 1564 (11th Cir. 1994). Defendant fails to show that the parties are
completely diverse and removal is not proper based on diversity of citizenship for
this additional reason.
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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.”). Defendant fails to meet his burden to show
that removal is proper based on diversity jurisdiction, and Plaintiff’s Motion to
Remand is granted for this additional reason.5
Because the Court lacks both federal question and diversity jurisdiction, this
action is required to be remanded to 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 Plaintiff’s Motion to Remand [2] is

GRANTED. The Clerk of the Court is DIRECTED to REMAND this action to
the Magistrate Court of Fulton County, Georgia.

5

The Court notes that removal is also procedurally defective because
Defendant, assuming that he is a citizen of Georgia, cannot remove to federal court
an action brought against him in a Georgia state court. See 28 U.S.C. § 1441(b)(2)
(“A civil action otherwise removable solely on the basis of [diversity] jurisdiction
. . . may not be removed if any of the parties in interest properly joined and served
as defendants is a citizen of the State in which such action is brought.”).
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SO ORDERED this 20th day of April, 2017.

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