Mabry Property Management LLC v. John Doe
Filing
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OPINION AND ORDER adopting Magistrate Judge Walter E. Johnson's Report and Recommendation 3 and remanding this action to the Magistrate Court of DeKalb County, Georgia. Signed by Judge William S. Duffey, Jr on 7/31/17. (ddm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
MABRY PROPERTY
MANAGEMENT LLC,
Plaintiff,
v.
1:17-cv-2336-WSD
BILLY SMITH,
Defendant.
OPINION AND ORDER
This matter is before the Court on Magistrate Judge Walter E. Johnson’s
Final Report and Recommendation (“R&R”) [3], which recommends remanding
this dispossessory action to the Magistrate Court of DeKalb County, Georgia.
I.
BACKGROUND
On June 5, 2017, Plaintiff Mabry Property Management, LLC (“Plaintiff”)
filed, in the Magistrate Court of DeKalb County, Georgia,1 a dispossessory
proceeding against its tenant, Defendant Billy Smith (“Defendant”).2 The
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No. 17D14527
dispossessory proceeding seeks possession of the premises occupied by Defendant,
and past due rent.
On June 22, 2017, Defendant, proceeding pro se, removed the DeKalb
County dispossessory action to this Court by filing a Notice of Removal [2] and an
application to proceed in forma pauperis (“IFP”) [1]. Defendant appears to assert
in the removal petition that federal question jurisdiction exists because “the
proceedings occurring [are] in violation of the Federal Protecting Tenants Act,
Foreclosure Act Sec. 702, 15 USC [§] 1692(a) and the Fourteenth Amendment of
the United States Constitution.” (Notice of Removal [2] at 1).
On June 27, 2017, Magistrate Judge Johnson granted Defendant’s
application to proceed IFP. The Magistrate Judge then considered, sua sponte,
whether there is federal subject matter jurisdiction over the action removed. The
“Complaint,” in this case, asserts a state court dispossessory claim. The Notice of
Removal [2] appears to assert the existence of federal defenses or counterclaims, as
grounds for proposed federal question jurisdiction. The Magistrate Judge found
that claimed federal defenses or counterclaims do not confer federal question
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The original Complaint lists Defendants as “John Doe and All Others.” The
Answer lists “Billy Smith” as the Defendant and the Notice of Removal [2] was
filed by Billy Smith. No “other occupant” defendants are identified and the Court
considers Billy Smith as the sole defendant in this action.
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jurisdiction. A federal question must be stated in the well-pleaded complaint. The
Magistrate Judge found further that removal, under 28 U.S.C. § 1441, is not
procedurally proper because Defendant is a citizen of Georgia, the state in which
this action was originally filed. See 28 U.S.C. § 1441(b)(2). The Magistrate Judge
concluded that the Court does not have federal jurisdiction over this action and
recommended that the Court remand the case to the Magistrate Court of DeKalb
County. (R&R [3] at 3).
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,
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1095 (11th Cir. 1983). In this case there are no objections and the Court reviews
the R&R for plain error.
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 assertion of defenses or counter claims 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). Defendant states, in the
Notice of Removal, that “the proceedings [are] occurring in violation of the
Federal Protecting Tenants Act Foreclosure Act Sec. 702, 15 USC 1692(a) and the
Fourteenth Amendment.” (Notice of Removal [2] at 1). The federal issues raised
by the Defendant are defenses or counterclaims to the dispossessory action and
therefore are not a basis for removal based on the presence of a federal question.
Although not alleged in the Notice of Removal, the Court also concludes
that diversity jurisdiction is not present in 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). The Defendant here does not, in the
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Notice of Removal, state the citizenship of either party and does not allege facts to
establish diversity jurisdiction.3 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, 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-cv2865-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.”). Removal based on
diversity of citizenship is not available in this case.
The Court lacks both federal question and diversity jurisdiction and this
action is required to be remanded to the DeKalb County Magistrate Court. See 28
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Defendant lists himself as “citizen of this state” on the Civil Cover Sheet
[1.2] and does not list the citizenship of Plaintiff. Removal to the district court, in
this action, is procedurally improper as Defendant is a citizen of the state in which
the action was originally brought. See 28 U.S.C. § 1441(b)(2).
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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 Walter E. Johnson’s
Report and Recommendation [3] is ADOPTED.
IT IS FURTHER ORDERED that this action is REMANDED to the
Magistrate Court of DeKalb County, Georgia.
SO ORDERED this 31st day of July, 2017.
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