CSS The Estates at McDonough Woodward Management v. Dukes

Filing 6

OPINION AND ORDER adopting Magistrate Judge J. Clay Fuller's Final Report and Recommendation [4.2] and denying Defendant's Motion 5 , which the Court construed as her Objections. It is further ordered that this action is remanded to the Magistrate Court of Henry County, Georgia. Signed by Judge William S. Duffey, Jr on 8/14/17. (ddm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
CSS THE ESTAES OF
MCDONOUGH WOODWARD
MANAGEMENT PARTNERS,
Plaintiff,
v.

1:17-cv-2298-WSD

KARLOWA DUKES,
Defendant.

OPINION AND ORDER
This matter is before the Court on Defendant Karlowa Dukes’ (“Defendant”)
Motion to “Vacate and Set Aside Wrongful Eviction And Dispossessory And
Declaratory Relief Preliminary Statement, And Lack of Subject Matter
Jurisdiction, Emergency Motion Injunction Relief, Set Aside Writ of Possession”
(“Motion”) [5]. This motion was in response to Magistrate Judge J. Clay Fuller’s
Report and Recommendation (“R&R”) [4.2], which recommends this action be
remanded for lack of subject matter jurisdiction.
I.

BACKGROUND
On May 11, 2017, Plaintiff CSS The Estates of McDonough Woodward

Management Partners (“Plaintiff”) filed, in the Magistrate Court of Henry County,

Georgia,1 a dispossessory proceeding against its tenant, Defendant Karlowa Dukes
(“Defendant”). The dispossessory proceeding sought possession of the premises
occupied by Defendant, and past due rent, fees and costs.
On June 6, 2017, the Magistrate Court of Henry County ordered Defendant
to pay $2,189.38 in principal, $75.50 in court costs and issued an Writ of
Possession for Plaintiff. (Judgment and Order [1.1] at 6).
On June 20, 2017, Defendant, proceeding pro se, removed the Henry County
dispossessory action to this Court by filing a Notice of Removal [3] and an
application to proceed in forma pauperis (“IFP”) [1]. Defendant appears to assert,
in the removal petition, that the district court has federal question jurisdiction over
the matter, asserting, “[This] [d]ispossessory action is in violation of [the] 14th
Amendment of the U.S. Constitution with respect to Due Process of law.” (Notice
of Removal [3] at 3).
On June 22, 2017, the Magistrate Judge granted Defendant’s application to
proceed IFP and considered sua sponte whether the Court has subject matter
jurisdiction over this case. The “Complaint,” in this case, asserts a state court
dispossessory claim. In order for Defendant to establish federal question
jurisdiction, a federal question must be stated in the well-pleaded complaint. The
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No. 2017-1911CD

2

Magistrate Judge found that, in this action, there was no federal question. The
Magistrate Judge concluded that there is no federal jurisdiction over this action and
recommended that the Court remand the case to the Magistrate Court of Henry
County.
On June 27, 2017, Defendant filed the Motion in response to the R&R,
which the Court construes as Defendant’s 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, 681F.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). In this case Defendant filed Objections and the Court
conducts a de novo review.

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B.

Analysis

Defendant asserts in her Motion, “Jurisdiction and venue of this Court over
this matter is invoked pursuant to the [sic] 28 U.S.C. A§ [sic] 1331, 1332 1343 and
1357.” (Motion [5] at 2). 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 assertion of defenses or counter claims based on federal law
cannot confer federal question jurisdiction over a cause of action. The federal
issues raised in Defendant’s removal petition are defenses or counterclaims to the
state dispossessory action and are not a ground for removal based on the presence
of a federal question.
The Court’s jurisdiction in this action also cannot be based on diversity of
citizenship. Diversity jurisdiction exists over suits between citizens of different
states where the amount in controversy exceeds $75,000.00. 28 U.S.C. § 1332(a).
The Defendant states, in her Motion, her own citizenship and alleges that Plaintiff
“is not showing a physical address but a P.O Box.” (Motion [5] at 2). This is not
sufficient to allege diversity of the parties. Even if complete diversity was alleged,
the amount-in-controversy requirement is not met. “[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,

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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 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.”). There is
no basis for removal based on diversity of citizenship.
The Court lacks both federal question and diversity jurisdiction and thus this
action is required to be remanded to the Henry County Magistrate Court.2 See
28 U.S.C. § 1447(c) (“If at any time before the final judgment it appears that the
district court lacks subject matter jurisdiction, the case shall be remanded.”).
2

Even if subject matter jurisdiction existed, the Court cannot provide
Defendant the relief she seeks—a stay of state court eviction proceedings—
because a federal court is prohibited under the Anti-Injunction Act,
28 U.S.C. § 2283, from enjoining a state court eviction proceeding. To the extent
Defendant seeks to have the Court find that a completed dispossessory proceeding
was wrongful and overturn a writ of possession issued by a state court, the Court
lacks jurisdiction under the Rooker-Feldman doctrine to do so. Doe v. Fla. Bar,
630 F.3d 1336, 1341 (11th Cir. 2011). (Federal district courts “generally lack
jurisdiction to review a final state court decision.”) (citing D.C. Court of
Appeals v. Feldman, 460 U.S. 462 (1983) & Rooker v. Fidelity Trust Co.,
263 U.S. 413 (1923)).

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III.

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

Report and Recommendation [4.2] is ADOPTED.
IT IS FURTHER ORDERED that Defendant’s Motion [5], which the
Court construed as her Objections, is DENIED.
IT IS FURTHER ORDERED that this action is REMANDED to the
Magistrate Court of Henry County, Georgia.

SO ORDERED this 14th day of August, 2017.

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