CSH 2016 -1 Borrower LLC v. Andersen

Filing 5

OPINION AND ORDER adopting Magistrate Judge Catherine M. Salinas's Final Report and Recommendation 3 and remanding this action to the Magistrate Court of Gwinnett County, Georgia. Signed by Judge William S. Duffey, Jr on 6/20/17. (ddm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
CHS 2016-1 BORROWER, LLC,
Plaintiff,
v.

1:17-cv-1226-WSD

ROSE ANDERSON,
Defendant.

OPINION AND ORDER
This matter is before the Court on Magistrate Judge Catherine M. Salinas’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 21, 2017, Plaintiff CSH 2016- 1 Borrower, LLC (“Plaintiff”)

initiated a dispossessory proceeding against its tenant, Defendant Rose Anderson
(“Defendant”) in the Magistrate Court of Gwinnett County, Georgia.1 The
Complaint seeks possession of premises currently occupied by Defendant and
seeks past due rent, fees and costs.
On April 5, 2017, Defendant, proceeding pro se, removed the Gwinnett
County action to this Court by filing her Notice of Removal and an application to
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No. 17M05817.

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. Defendant claims in her Petition for Removal of Action that Plaintiff violated
the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. (“FDCPA”) and
the Due Process Clause of the Fourteenth Amendment. (Notice of Removal [1.2]
at 2).
On April 14, 2017, Magistrate Judge Salinas 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 Gwinnett County. The Magistrate
Judge found that Plaintiff’s Complaint 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.
There are no objections to the R&R.

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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).
B.

Analysis

The Magistrate Judge found that Plaintiff’s Complaint does not present a
federal question. 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

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Circulation Sys., Inc., 535 U.S. 826, 830-32 (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
the amount in controversy requirement.”). The amount-in-controversy requirement
is not satisfied and removal is not proper based on diversity of citizenship.

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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 Catherine M. Salinas’s

Final Report and Recommendation [3] is ADOPTED.
IT IS FURTHER ORDERED that this action is REMANDED to the
Magistrate Court of Gwinnett County, Georgia.

SO ORDERED this 20th day of June, 2017.

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