CitiMortgage, Inc. v. Davis et al

Filing 5

OPINION AND ORDER adopting Magistrate Judge Janet F. Kings Final Report and Recommendation 2 and remanding this action to the Magistrate Court of Douglas County, Georgia. Signed by Judge William S. Duffey, Jr on 3/29/17. (ddm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
CITIMORTGAGE, INC.,
Plaintiff,
v.

1:17-cv-236-WSD

DELORES S. DAVIS, TRELLIS
EASON, and All Others,
Defendants.

OPINION AND ORDER
This matter is before the Court on Magistrate Judge Janet F. King’s Final
Report and Recommendation (“R&R”) [2], which recommends remanding this
dispossessory action to the Magistrate Court of Douglas County, Georgia.
I.

BACKGROUND
On December 30, 2016, Plaintiff CitiMortgage, Inc. (“Plaintiff”) initiated a

dispossessory proceeding against its tenants, Defendants Delores S. Davis and
Trellis Eason (“Defendants”) in the Magistrate Court of Douglas County, Georgia.
The Complaint asserts that Defendants are tenants at sufferance following a

foreclosure sale of the Property and seeks possession of premises currently
occupied by Defendants.1
On January 20, 2017, Defendants, proceeding pro se, removed the Douglas
County action to this Court by filing their Petition for Removal and an application
to proceed in forma pauperis (“IFP Application”) [1].2 Defendants appear to assert
that there is federal subject matter jurisdiction because there is a question of federal
law in this action. Defendants claim in their Petition for Removal that
“Respondent” violated the Fair Debt Collection Practices Act, 15 U.S.C. § 1692
et seq. (“FDCPA”) 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 [sic],” and the Due
Process Clause of the Fourteenth Amendment. (Petition for Removal [1.1] at 3).
Defendants also assert counterclaims for “improper foreclosure” and that Plaintiff
violated the Fifth and Seventh Amendments.
On January 23, 2017, Magistrate Judge King granted Defendants’
application to proceed IFP. The Magistrate Judge then considered, sua sponte,
whether there is federal subject matter jurisdiction. The Court found that federal
1

No. 16MV09208.
It appears that this action was removed by both Defendants, although the
Court notes that only Trellis Eason signed the Petition for Removal, Civil Cover
Sheet, and IFP Application.
2

2

subject matter jurisdiction was not present and recommended that the Court
remand the case to the Magistrate Court of Douglas 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. Although not alleged in their Petition for Removal, the Magistrate Judge
also considered whether the Court has subject-matter jurisdiction based on
diversity of citizenship. The Magistrate Judge found that Defendants 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 that this case is
required to be remanded to the state court.
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
3

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

Defendants do not object to the R&R’s finding that Plaintiff’s Complaint
does not present a federal question and that the parties are not diverse. The Court
does not find any plain error in these conclusions. 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). The record also does not show that Plaintiff and Defendants are citizens of
different states, or that the amount in controversy exceeds the statutory threshold of
$75,000. See 28 U.S.C. § 1332(a); Carter v. Butts Cty., Ga., et al., 821 F.3d 1310,
4

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 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, the
Magistrate Judge recommended that this action 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.”).
Defendants did not object to this recommendation and the Court finds no plain
error in it.3, 4, 5
3

Even if subject matter jurisdiction existed, the Court cannot provide
Defendants the relief they seek—a stay of state court eviction proceedings—
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III.

CONCLUSION
For the foregoing reasons,
IT IS HEREBY ORDERED that Magistrate Judge Janet F. King’s Final

Report and Recommendation [2] is ADOPTED.
IT IS FURTHER ORDERED that this action be REMANDED to the
Magistrate Court of Douglas County, Georgia.

because a federal court is prohibited under the Anti-Injunction Act, 28 U.S.C.
§ 2283, from enjoining a state court eviction proceeding.
4
To the extent Defendants claim removal under Section 1443 based on their
assertion that the state court dispossessory action violates their federal rights under
the Fifth, Seventh, and Fourteenth Amendments, Defendants’ 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.
5
To the extent Defendants claim further that the Magistrate Court of Douglas
County “lacks proper jurisdiction to settle this subject matter,” (see [1.1] at 6),
O.C.G.A. § 15-10-2(6) provides that “[e]ach magistrate court and each magistrate
thereof shall have jurisdiction and power over . . . [t]he issuance of summons, trial
of issues, and issuance of writs and judgments in dispossessory proceedings. . . .”
6

SO ORDERED this 29th day of March, 2017.

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