Heritage Select, LLC v. White

Filing 4

OPINION AND ORDER adopting Magistrate Judge Alan J. Baverman's Final Report and Recommendation 2 and remanding this action to the Magistrate Court of Fulton County, Georgia. Signed by Judge William S. Duffey, Jr on 10/2/17. (ddm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
HERITAGE SELECT LLC,
Plaintiff,
v.

1:17-cv-663-WSD

CALVIN R. WHITE,
Defendant.

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

BACKGROUND
On February 8, 2017, Plaintiff Heritage Select LLC (“Plaintiff”) initiated a

dispossessory proceeding against Defendant Calvin R. White (“Defendant”), in the
Magistrate Court of Fulton County, Georgia.1 The Complaint seeks possession of
premises currently occupied by Defendant following a foreclosure sale of the
property.
On February 22, 2017, Defendant, proceeding pro se, removed the Fulton
County Action to this Court by filing his Notice of Removal [1]. Defendant
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No. 17ED023389.

appears to assert that there is federal subject matter jurisdiction because there is a
question of federal law in this action. Defendant “complaints of various systematic
and premeditated deprivations of fundamental [r]ights guaranteed by the U.S.
Constitution, by the Constitution of the State of Georgia . . . and by federal law,
and which deprivations are violations of 18 U.S.C. §§ 241 and 242,” and 42 U.S.C.
§ 1983. (Notice of Removal at 1-2).
On September 7, 2017, Magistrate Judge Baverman reviewed Defendant’s
Notice of Removal and considered whether there is federal subject matter
jurisdiction over the action removed. The Magistrate Judge 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. Although not alleged in the Notice of Removal, the Magistrate Judge also
considered whether the Court has subject-matter jurisdiction based on diversity of
citizenship. The Magistrate Judge found that Defendant failed to allege any facts
to show that the parties’ citizenship is completely diverse, or that the amount in

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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
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 Magistrate Judge’s finding that Plaintiff’s
Complaint does not present a federal question and that the parties are not diverse.

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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 Defendant 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,
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

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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 Magistrate Court of Fulton County. 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 Alan J. Baverman’s

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

SO ORDERED this 2nd day of October, 2017.

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