Snellings v. Smith et al

Filing 6

OPINION AND ORDER adopting Magistrate Judge J. Clay Fullers Report and Recommendation 2 , overruling Defendants Objections 5 and remanding this action to the Magistrate Court of Gwinnett County, Georgia. Signed by Judge William S. Duffey, Jr on 4/19/17. (ddm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
JOHN A. SNELLINGS,
Plaintiff,
v.

1:17-cv-00785-WSD

STEPHEN SMITH and SABRINA
SMITH,
Defendants.

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

BACKGROUND
On February 16, 2017, Plaintiff John Snellings (“Plaintiff”) initiated a

dispossessory proceeding against his tenants, Stephen Smith and Sabrina Smith
(“Defendants”), in the Magistrate Court of Gwinnett County, Georgia.1 The
Complaint seeks possession of the premises currently occupied by Defendants and
seeks past due rent, fees and costs.
1

No. 17M05423.

On March 3, 2017, Defendants removed the Gwinnett County Action to this
Court by filing their Notice of Removal and an application to proceed in forma
pauperis (“IFP”) [1]. Defendants appear to assert that there is federal subject
matter jurisdiction because there is a question of federal law in this action. In their
Notice of Removal, Defendants claim that Plaintiff violated the Fair Debt
Collection Practices Act, 15 U.S.C. § 1692, et seq. (“FDCPA”), the Fair Housing
Act, 42 U.S.C. § 3631 et seq., and Rule 60 of the Federal Rules of Civil Procedure.
Defendants claim further that the Court “[has] the legal duty to abort eviction
pursuant to O.C.G.A. [§] 51-1-6 and 15 U.S.C. [§] 1692.” (Notice of Removal
[1.1] at 1).
On March 8, 2017, Magistrate Judge Fuller 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 subject matter
jurisdiction was not present and recommended that the Court remand the case to
the Magistrate Court of Gwinnett 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
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did not consider whether subject-matter jurisdiction could be based on diversity of
citizenship because Defendants, in their Notice of Removal, appeared to base
subject-matter jurisdiction only on federal question.
On March 17, 2017, Defendants filed their “Response to Report and
Recommendation,” which the Court construes as their Objections [5] 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 (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).

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Defendants’ Objections are conclusory and do not address the Magistrate
Judge’s reasons for recommending remand.2 See Marsden v. Moore, 847 F.2d
1536, 1548 (11th Cir. 1988) (“Parties filing objections to a magistrate’s report and
recommendation must specifically identify those findings objected to. Frivolous,
conclusive, or general objections need not be considered by the district court.”);
see also Macort v. Prem, Inc., 208 F. App’x 781, 784 (11th Cir. 2006) (“It is
critical that the objection be sufficiently specific and not a general objection to the
report.”). These are not valid objections, and the Court will not consider them.
The Court reviews the R&R for plain error.
B.

Analysis

Defendants do 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
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
2

For example, Defendants assert that they “have a clear and enforceable
Lease-Purchase Agreement that [P]laintiff has chosen to renege on thus violating
defendants [sic] access to fair and equal housing” which Defendants claim
“occurred after thousands of dollars of repairs spent to bring the house up to code.”
(Obj. at 1).
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v. Anderson, 539 U.S. 1, 6 (2003); Holmes Group, Inc. v. Vornado Air Circulation
Sys., Inc., 535 U.S. 826, 830-32 (2002).3
Although not alleged in their Notice of Removal, the Court also concludes
that diversity jurisdiction is not present in this action because Defendants fail to
allege any facts to show that the parties’ citizenship is completely diverse, or that
3

The Court notes that, to the extent Defendants claim in their Objections that
Plaintiff’s Complaint violates their “civil rights and [their] access to fair and equal
housing,” and appear to assert in their Notice of Removal that the Court has subject
matter jurisdiction based on 28 U.S.C. § 1443 and violation of the Fair Housing
Act, 42 U.S.C. § 3631 et seq., Defendants fail to allege any facts to support that
they have been denied by, or cannot enforce in, the state court their rights under the
Fair Housing Act. See, e.g., 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”); Shah
v. Borden, No. 1:15-cv-1658-TWT, 2015 WL 4159948, at *2 (N.D. Ga. July 8,
2015) (“Because Defendant has attempted to bring counterclaims pursuant to the
Fair Housing Act, 28 U.S.C. § 1334, [and] the Bill of Rights . . . Defendant may be
attempting to invoke jurisdiction pursuant to 28 U.S.C. § 1443 . . . [which] does
not provide Defendant with a valid basis for removal jurisdiction.”); Georgia
v. Rachel, 384 U.S. 780, 788 (1966) (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.”); Rogers v. Rucker, 835 F. Supp. 1410 (N.D. Ga. 1993)
(remanding dispossessory action where tenant asserted counterclaim for violation
of Fair Housing Act, but failed to allege facts to support that landlord’s motive in
bringing action was to deter tenant from engaging in protected activity or that
Georgia law denies tenant ability to enforce her rights under the Fair Housing Act;
tenant asserted only discriminatory treatment in service and maintenance of her
apartment). Removal is not proper based on 28 U.S.C. § 1443 and this action is
required to be remanded for this additional reason.
5

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 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 Defendants
currently possess. 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
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.”).
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III.

CONCLUSION
For the foregoing reasons,
IT IS HEREBY ORDERED that Magistrate Judge J. Clay Fuller’s Report

and Recommendation [2] is ADOPTED.
IT IS FURTHER ORDERED that Defendants’ Objections [5] are
OVERRULED.
IT IS FURTHER ORDERED that this action be REMANDED to the
Magistrate Court of Gwinnett County, Georgia.

SO ORDERED this 19th day of April, 2017.

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