SG Miller Station-Atlanta, LLC v. Bolden
Filing
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OPINION AND ORDER adopting Magistrate Judge Russell G. Vineyards Final Report and Recommendation 3 and remanding this action to the Magistrate Court of DeKalb County, Georgia. It is further ordered that Defendants Petition for Extension of Time to File Objections 5 is denied. Signed by Judge William S. Duffey, Jr on 3/2/17. (ddm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
SG MILLER STATION-ATLANTA,
LLC a/a/f MILLER STATION ON
PEACHTREE APTS.,
Plaintiff,
v.
1:16-cv-3957-WSD
GEORGE BOLDEN, and All
Others,
Defendants.
OPINION AND ORDER
This matter is before the Court on Magistrate Judge Russell G. Vineyard’s
Final Report and Recommendation (“R&R”) [3], which recommends remanding
this dispossessory action to the Magistrate Court of DeKalb County, Georgia.
I.
BACKGROUND
On September 15, 2016, Plaintiff Miller Station-Atlanta, LLC a/a/f Miller
Station on Peachtree Apts. (“Plaintiff”) initiated a dispossessory proceeding
against its tenant, Defendant George Bolden (“Defendant”) in the Magistrate Court
of DeKalb County, Georgia.1 The Complaint seeks possession of premises
currently occupied by Defendant and seeks past due rent, fees and costs.
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No. 16D93345.
On October 24, 2016, Defendant, proceeding pro se, removed the DeKalb
County action to this Court by filing his Notice of 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 this case a question of federal
law.
On October 28, 2016, Magistrate Judge Vineyard 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 DeKalb County 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 also found that Defendant failed to allege any facts
to show that the parties’ citizenship is completely diverse, or that the amount in
controversy exceeds $75,000. The Magistrate Judge concluded that the Court does
not have diversity jurisdiction over this matter and recommended that this case be
remanded to the state court.
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On November 10, 2016, in lieu of objecting to the R&R, Defendant filed his
Petition for Extension of Time to File Objections [5]. Defendant “ask[s] the Court
for more time to file an answer and or respond to the remand petition.” (See [5] at
1). Defendant claims he needs additional time “so that [he] can do research and
write up.” (Id.).
On November 23, 2016, Plaintiff filed its Motion in Opposition to
Defendant’s Petition for Extension of Time to File Objections. Plaintiff argues that
“[a]n extension of time would extremely prejudice the Plaintiff and deprive them
of their right to obtain their property back.” Plaintiff argues further that
“Defendant has failed to state a legal basis for which his request for an extension of
time to file objections should be granted.” (See [6] at 3).
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
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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).
More than four months after the R&R gave Defendant notice that the parties
may file written objections to the R&R within fourteen (14) days of service, and
Defendant still has not filed Objections. The time period for filing Objections has
expired, and Defendant otherwise fails to show good cause for the delay.
Defendant’s Petition for Extension of Time to File Objections [5] is denied. The
Court, in its discretion, nevertheless conducts a de novo review of the record.
B.
Analysis
The Magistrate Judge found that Plaintiff’s Complaint does not present a
federal question and that the parties are not diverse. 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
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(2002). The Court finds that Plaintiff’s Complaint does not present a federal
question.
The Court also lacks diversity jurisdiction over this action. Diversity
jurisdiction exists over suits between citizens of different states where the amount
in controversy exceeds $75,000. 28 U.S.C. § 1332(a). Here, the record does not
show the citizenship of the parties, and, even if there is complete diversity between
the parties, the amount-in-controversy requirement cannot be satisfied because this
is a dispossessory action. “[A] claim seeking only ejectment in a dispossessory
action cannot be reduced to a monetary sum for the purposes of determining the
amount in controversy.” Citimortgage, Inc. v. Dhinoja, 705 F. Supp. 2d 1378,
1382 (N.D. Ga. 2010); Novastar Mortg., Inc. v. Bennett, 173 F. Supp. 2d 1358,
1361 (N.D. Ga. 2001), aff’d, 35 F. App’x 858 (11th Cir. 2002); cf. 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
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the amount in controversy requirement.”). The amount-in-controversy requirement
is not satisfied and removal is not proper based on diversity of citizenship.2
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 Magistrate Judge Russell G. Vineyard’s
Final Report and Recommendation [3] is ADOPTED.
IT IS FURTHER ORDERED that this action is REMANDED to the
Magistrate Court of DeKalb County, Georgia.
IT IS FURTHER ORDERED that Defendant’s Petition for Extension of
Time to File Objections [5] is DENIED.
2
The Magistrate Judge also found that removal was 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 2nd day of March, 2017.
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