Wesley Place Apts et al v. Smith
Filing
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OPINION AND ORDER adopting Magistrate Judge J. Clay Fuller's Final Report and Recommendation 2 and remanding this action to the Magistrate Court of Gwinnett County, Georgia. Signed by Judge William S. Duffey, Jr on 7/10/17. (ddm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
WESLEY PLACE APTS and
EURAMEX MANAGEMENT
GROUP, LLC,
Plaintiffs,
v.
1:17-cv-02053-WSD
KAMILAH SMITH and all other
occupants,
Defendant.
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 May 22, 2017, Plaintiffs Wesley Place Apts and Euramex Management
Group, LLC, (together “Plaintiffs”) initiated a dispossessory proceeding against
their tenant, Defendant Kamilah Smith (“Defendant”)1 in the Magistrate Court of
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This case is brought against Kamilah smith and all other occupants.
Kamilah Smith, however, is the only party to have filed motions with the court and
will therefore be referenced as a sole defendant.
Gwinnett County, Georgia.2 The Complaint seeks possession of premises currently
occupied by Defendant and seeks past due rent, fees and costs. (Complaint [1.1] at
3-4).
On June 6, 2017, Defendant, proceeding pro se, removed the Gwinnett
County action to this Court by filing her Petition for Removal and Federal Stay of
Eviction (“Petition for Removal”) [3] 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.
Defendant claims in her Petition for Removal that Plaintiffs violated the Fair Debt
Collection Practices Act, 15 U.S.C. § 1692 et seq. (“FDCPA”). ([3] at 1-2).
On June 7, 2017, Magistrate Judge Fuller 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
Plaintiffs’ Complaint asserts a state court dispossessory action and does not allege
federal law claims. Because a federal law defense or counterclaim does not confer
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No. 17M15936.
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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.
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 Plaintiffs’ 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
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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 Court finds that Plaintiffs’ Complaint does not present a federal
question because the allegations Defendant raises in her Petition for Removal are
defenses or counterclaims to Plaintiffs’ Complaint which arises under state law.
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 both 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]
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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.
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 J. Clay Fuller’s Final
Report and Recommendation [2] is ADOPTED.
IT IS FURTHER ORDERED that this action is REMANDED to the
Magistrate Court of Gwinnett County, Georgia.
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SO ORDERED this 10th day of July, 2017.
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