Hopson v. Green et al

Filing 5

OPINION AND ORDER adopting Magistrate Judge Walter E. Johnson's Final Report and Recommendation 3 and remanding this action to the Magistrate Court of Newton 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
GERALDINE HOPSON,
Plaintiff,
v.

1:17-cv-3106-WSD

CALVIN GREEN and
LAKEISHA CLEMONS,
Defendants.

OPINION AND ORDER
This matter is before the Court on Magistrate Judge Walter E. Johnson’s
Final Report and Recommendation [3] (“R&R”), which recommends remanding
this dispossessory action to the Magistrate Court of Newton County, Georgia.
I.

BACKGROUND
On July 31, 2017, Plaintiff Geraldine Hopson (“Plaintiff”) initiated a

dispossessory proceeding against Calvin Green and Lekeisha Clemons
(“Defendants”) in the Magistrate Court of Newton County, Georgia.1 The
Complaint seeks possession of premises currently occupied by Defendants and
seeks past due rent, fees and costs.

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No. 1707558.

On August 16, 2017, Defendants, proceeding pro se, removed the Newton
County Action to this Court by filing a Petition for Removal and an application to
proceed in forma pauperis (“IFP Application”). Defendants appear to assert that
there is federal subject matter jurisdiction because there is a question of federal law
in this action. In their Petition for Removal, Defendants claim 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 95.11,” and violated the Due
Process “Clauses” of the Fourteenth Amendment. (Pet. for Removal [2] at 2-3).
On August 18, 2017, Magistrate Judge Johnson granted Defendants’ IFP
Application. ([2]).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 Newton
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.
The Magistrate Judge also considered whether the Court has subject-matter
jurisdiction based on diversity of citizenship. The Magistrate Judge also concluded
2

Although the IFP Application was completed and signed by Lakeisha
Clemons only, the Magistrate Judge granted both Defendants IFP status for the
purpose of remand.
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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).
B.

Analysis

Defendants do not object to the Magistrate Judge’s finding that Plaintiff’s
Complaint does not present a federal question and that the Court does not have
diversity jurisdiction. The Court does not find any plain error in these conclusions.

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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 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-2865RWS, 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

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whole to satisfy the amount in controversy requirement.”).3
Because the Court lacks both federal question and diversity jurisdiction, this
action is required to be remanded to the Magistrate Court of Newton 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.”).
III.

CONCLUSION
For the foregoing reasons,
IT IS HEREBY ORDERED that Magistrate Judge Walter E. Johnson’s

Final Report and Recommendation [3] is ADOPTED.
IT IS FURTHER ORDERED that this action is REMANDED to the
Magistrate Court of Newton County, Georgia.

SO ORDERED this 2nd day of October, 2017.

3

The Magistrate Judge also found that removal was procedurally defective
because Defendants, who appear to be citizens of Georgia, cannot remove to
federal court an action brought against them 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.”).
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