Cumberland Crossing LLC v. Robinson

Filing 6

OPINION AND ORDER adopting Magistrate Judge Russell G. Vineyard's Report and Recommendation 2 and remanding this action to the Magistrate Court of Cobb 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
CUMBERLAND CROSSING LLC,
doing business as Cumberland
Crossing Apartments,
Plaintiff,
v.

1:17-cv-3012-WSD

MARSHA ROBINSON,
Defendant.

OPINION AND ORDER
This matter is before the Court on Defendant Marsha Robinson’s
(“Defendant”) Objections [5] to Magistrate Judge Russell G. Vineyard’s Report
and Recommendation [2] (“R&R”). The Magistrate Judge recommends that this
action be remanded to the Magistrate Court of Cobb County, Georgia.
I.

BACKGROUND
On July 19, 2017, Plaintiff Cumberland Crossing LLC, doing business as

Cumberland Crossing Apartments (“Plaintiff”), initiated a dispossessory
proceeding against Defendant in the Magistrate Court of Cobb County, Georgia.1
The Complaint seeks possession of premises currently occupied by Defendant.
1

No. 17-E-10712. See https://courtconnect.cobbcounty.org:4443/ccmag/ck
_public_qry_main.cp_main_idx.

On August 10, 2017, Defendant, proceeding pro se, removed the Cobb
County Action to this Court by filing a Petition for Removal and an application to
proceed in forma pauperis (“IFP”) [1]. Defendant appears to assert that there is
federal subject matter jurisdiction because there is a question of federal law in this
action. Defendant claims that Plaintiff violated “15 USC 1692 [sic]” and Rule 60
of the Federal Rules of Civil Procedure, “having a legal duty to abort eviction
pursuant to O.C.G.A. § 51-1-6,” and violated the Due Process “Clauses” of the
Fourteenth Amendment. (Pet. for Removal [3] at 2).
On August 14, 2017, Magistrate Judge Vineyard 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 Cobb
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.
On August 29, 2017, Defendant filed her 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).

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B.

Analysis

In her Objections, Defendant asserts that Plaintiff “did violate 28 USC 1367
[sic]” and “28 USC 1446(D) [sic]” “and having a legal duty to abort eviction
pursuant to O.C.G.A. 51-1-6 [sic].” (Objs. at 2-3). Plaintiff’s Complaint is a
dispossessory action which is based solely on state law. See O.C.G.A. § 44-7-50;
Steed v. Fed. Nat’l Mortg. Corp., 689 S.E.2d 843 (Ga. Ct. App. 2009) (when
former owner of real property remains in possession after foreclosure sale, she
becomes “tenant at sufferace,” and thus landlord-tenant relationship exists and
dispossessory procedure in O.C.G.A. § 44-7-50 applies). No federal question is
presented on the face of Plaintiff’s Complaint. That Defendant asserts defenses or
counterclaims based on federal law cannot confer federal subject-matter
jurisdiction over this action. See Beneficial Nat’l Bank v. Anderson, 539 U.S. 1, 6
(2003); Holmes Grp., Inc. v. Vornado Air Circulation Sys., Inc., 535 U.S. 826,
830-32 (2002); Caterpiller Inc. v. Williams, 482 U.S. 386, 392-93 (1987) (“The
presence of a federal defense does not make the case removable . . . .”). Defendant
fails to show that the Court has federal question jurisdiction over this action and
her objection is overruled.
Defendant did not object to the Magistrate Judge’s conclusion that the
Court lacks diversity jurisdiction over this action. The record does not show that

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Plaintiff and Defendant are citizens of different states, and, even if they are, there
is no evidence to support that the amount in controversy exceeds the statutory
threshold of $75,000. See 28 U.S.C. § 1332(a); Carter v. Butts Cty., 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]
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.”).
Because the Court lacks both federal question and diversity jurisdiction, this
action is required to be remanded to the Magistrate Court of Cobb 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.”).

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III.

CONCLUSION
For the foregoing reasons,
IT IS HEREBY ORDERED that Defendant Marsha Robinson’s Objections

[5] are OVERRULED.
IT IS FURTHER ORDERED that Magistrate Judge Russell G. Vineyard’s
Report and Recommendation [2] is ADOPTED.
IT IS FURTHER ORDERED that this action is REMANDED to the
Magistrate Court of Cobb County, Georgia.

SO ORDERED this 2nd day of October, 2017.

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