TBR Stratford 1031 WA LLC v. Green

Filing 7

OPINION AND ORDER adopting Magistrate Judge Alan J. Baverman's Final Report and Recommendation 4 and remanding this action to the Magistrate Court of Fulton County, Georgia. Signed by Judge William S. Duffey, Jr on 10/2/17. (ddm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
TBR STRATFORD 1031 WA LLC,
doing business as The Stratford
Apartments,
Plaintiff,
v.

1:17-cv-2720-WSD

MICHAELA GREEN,
Defendant.

OPINION AND ORDER
This matter is before the Court on Magistrate Judge Alan J. Baverman’s
Final Report and Recommendation [4] (“R&R”), which recommends remanding
this dispossessory action to the Magistrate Court of Fulton County, Georgia.
I.

BACKGROUND
On June 15, 2017, Plaintiff TBR Stratford 1031 WA LLC, doing business as

The Stratford Apartments (“Plaintiff”), initiated a dispossessory proceeding against
Defendant Michaela Greene (“Defendant”) in the Magistrate Court of Fulton
County, Georgia.1 The Complaint seeks possession of premises currently occupied
by Defendant and seeks past due rent, fees and costs.

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No. 17ED038861.

On July 19, 2017, Defendant, proceeding pro se, removed the Fulton County
Action to this Court by filing her Notice of Removal and an application to proceed
in forma pauperis (“IFP Application”). Defendant appears to assert that there is
federal subject matter jurisdiction because there is a question of federal law in this
action. Defendant “complains of various systematic and premeditated deprivations
of fundamental [r]ights guaranteed by the U.S. Constitution, by the Constitution of
the State of Georgia and by federal law, and which deprivations are violations of
18 U.S.C. §§ 241 and 242.” (Notice of Removal [3] at 5).
On August 4, 2017, Magistrate Judge Baverman granted Defendant’s IFP
Application. ([2]). The Magistrate Judge then considered, sua sponte, whether
there is federal subject matter jurisdiction over the action removed. The Magistrate
Judge found that federal subject matter jurisdiction was not present and
recommended that the Court remand the case to the Magistrate Court of Fulton
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. Although not alleged in the Notice of Removal, the
Magistrate Judge also considered whether the Court has subject-matter jurisdiction

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based on diversity of citizenship. The Magistrate Judge found that Defendant
failed to allege any facts to show that the parties’ citizenship is completely diverse,
or that the amount in controversy exceeds $75,000. The Magistrate Judge
concluded that the Court does not have diversity jurisdiction over this matter and
that this case is required to be remanded to the state court.
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), cert. denied, 464 U.S. 1050 (1984).

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B.

Analysis

Defendant does not object to the Magistrate Judge’s finding that Plaintiff’s
Complaint does not present a federal question and that the parties are not diverse.
The Court does not find any plain error in these conclusions. 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 Circulation Sys., Inc., 535 U.S. 826, 830-32
(2002). The record also does not show that Plaintiff and Defendant are citizens of
different states, or that the amount in controversy exceeds the statutory threshold of
$75,000. See 28 U.S.C. § 1332(a); Carter v. Butts Cty., Ga., et al., 821 F.3d 1310,
1322 (11th Cir. 2006) (quoting Steed v. Fed. Nat’l Mortg. Corp., 689 S.E.2d 843,
848 (Ga. Ct. App. 2009)) (“[U]nder Georgia law, ‘[w]here former owners of real
property remain in possession after a foreclosure sale, they become tenants at
sufferance,’” and are thus subject to a dispossessory proceeding under O.C.G.A.
§ 44-7-50, which “provide[s] the exclusive method by which a landlord may evict
the tenant”); 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.”).2
Because the Court lacks both federal question and diversity jurisdiction, this
action is required to be remanded to the Magistrate Court of Fulton County. 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.”).3

2

The Magistrate Judge also found that removal was procedurally defective
because Defendant, assuming that she is a citizen of Georgia, cannot remove to
federal court an action brought against her in a Georgia state court. See 28 U.S.C.
§ 1441(b)(2) (“A civil action otherwise removable solely on the basis of [diversity]
jurisdiction…may not be removed if any of the parties in interest properly joined
and served as defendants is a citizen of the State in which such action is brought.”).
3
To the extent Defendant claims removal is proper under Section 1443 based
on “various systematic and premeditated deprivations of fundamental [r]ights
guaranteed by the U.S. Constitution, by the Constitution of the State of Georgia
and by federal law,” these broad assertions of general constitutional violations are
“phrased in terms of general application available to all persons or citizens, rather
than in the specific language of racial equality that section 1443 demands.” See
Kopec v. Jenkins, 357 F. App’x 213, 214 (11th Cir. 2009) (quoting Georgia
v. Rachel, 384 U.S. 780, 792 (1966)); see also 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”); Rachel, 384 U.S. at 788 (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
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III.

CONCLUSION
For the foregoing reasons,
IT IS HEREBY ORDERED that Magistrate Judge Alan J. Baverman’s

Final Report and Recommendation [4] is ADOPTED.
IT IS FURTHER ORDERED that this action is REMANDED to the
Magistrate Court of Fulton County, Georgia.

SO ORDERED this 2nd day of October, 2017.

Georgia.”). Removal is not proper based on 28 U.S.C. § 1443 and this action is
required to be remanded for this additional reason.
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