Najarian Capital, LLC v. Tucker et al

Filing 6

OPINION AND ORDER adopting Magistrate Judge J. Clay Fuller's Order and Final Report and Recommendation 2 and remanding this action to the Magistrate Court of Fulton County, Georgia. Signed by Judge William S. Duffey, Jr on 12/6/17. (ddm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
NAJARIAN CAPITAL, LLC,
Plaintiff,
v.

1:17-cv-4012-WSD

MARIAN TUCKER, LYNETTE
TOWNES, And All Others,
Defendants.

OPINION AND ORDER
This matter is before the Court on Defendant Lynette Townes’s
(“Defendant” or “Townes”) Objections [5] to Magistrate Judge J. Clay Fuller’s
Order and Final Report and Recommendation (“R&R”) [2]. The R&R grants
Defendant’s request to proceed in forma pauperis solely for the limited purpose of
determining whether this action has been properly removed to this Court. The
R&R also finds that this Court lacks subject matter jurisdiction over this action and
recommends that this case be remanded to the Magistrate Court of Fulton County.
I.

BACKGROUND
On September 18, 2017, Plaintiff Najarian Capital, LLC, (“Najarian”)

initiated a dispossessory proceeding (“Complaint”) against Defendant in the
Magistrate Court of Fulton County, Georgia. ([1-1] at 8). The Complaint seeks

possession of premises currently occupied by Defendants and court costs of $139.
(Id.)
On October 11, 2017, Defendant, proceeding pro se, removed the Fulton
County action to this Court by filing her Notice of Removal1 and IFP Application.
([1]). Defendant claims in her Notice of Removal that “Respondent” violated the
Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. (“FDCPA”) 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 [sic],” and the Due Process Clause of the Fourteenth
Amendment. ([1-1] at 3).
On October 17, 2017, the Magistrate Judge issued his R&R, which
recommends dismissing this action for lack of subject matter jurisdiction. The
Magistrate Judge found that the complaint did not present a federal question and
that diversity jurisdiction did not exist. ([2] at 3-4).
On October 31, 2017, Defendant filed an Objection and Response [5],
requesting that “the court vacate the order to remand the case back to magistrate
court Fulton County. ([5] at 1 (uncorrected)). Defendant argues that the “court
errs if court dismisses the pro se litigant without instruction of how pleadings are
deficient and how to repair pleadings.” (Id. (uncorrected)). Defendant further
1

Defendant styled the filing a “Petition of Removal.” ([1-1]).
2

states that this Court has jurisdiction pursuant to “28USC 1332, USC 1331 (a), 28
USC 1443.” (Id. (uncorrected)). Defendant also attached to the Objection a
document with allegations directed to “defendant Wells Fargo Bank, N.A.” ([1-1]
at 3-5).
II.

DISCUSSION
A.

Standard of Review of the Magistrate Judge’s R&R

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 (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). This requires that the district judge “give fresh
consideration to those issues to which specific objection has been made by a
party.” Jeffrey S. v. State Bd. of Educ. of Ga., 896 F.2d 507, 512 (11th Cir. 1990)
(internal quotation marks omitted). 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).

3

Defendant’s Objection [5] merely reasserts that this Court has jurisdiction to
hear this case. The Objection does not identify with any specificity any error in the
Magistrate Judge’s findings regarding jurisdiction or provide any additional facts
pertinent to subject matter jurisdiction. The attached document containing
allegations directed to Wells Fargo, N.A., does not appear to have any relevance to
this case. The Court need not consider “[f]rivolous, conclusive, or general
objections” to a magistrate’s report and recommendation. Marsden v. Moore, 847
F.2d 1536, 1548 (11th Cir. 1988).
B.

Subject Matter Jurisdiction

The Court finds no plain error in the Magistrate Judge’s finding that this
Court lacks subject matter jurisdiction. See Slay, 714 F.2d at 1095. Even if the
Court were to consider Defendant’s Objection [5] sufficient to require a de novo
review, it is clear that this Court does not have jurisdiction to hear this
dispossessory action.
The Eleventh Circuit has consistently held that “a court should inquire into
whether it has subject matter jurisdiction at the earliest possible stage in the
proceedings. Indeed, it is well settled that a federal court is obligated to inquire
into subject matter jurisdiction sua sponte whenever it may be lacking.” Univ. of
S. Ala. v. Am. Tobacco Co., 168 F.3d 405, 410 (11th Cir. 1999). “[O]nce a federal

4

court determines that it is without subject matter jurisdiction, the court is powerless
to continue.” Id.
Congress has provided that “any civil action brought in a State court of
which the district courts of the United States have original jurisdiction, may be
removed by the defendant.” 28 U.S.C. § 1441(a). Removal in this case appears to
be based on federal-question jurisdiction, which extends to “all civil actions arising
under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331.
“The presence or absence of federal-question jurisdiction is governed by the ‘wellpleaded complaint rule,’ which provides that federal jurisdiction exists only when a
federal question is presented on the face of the plaintiff's properly pleaded
complaint.” Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987). Thus, a
federal cause of action within a counterclaim or a federal defense is not a basis for
removal jurisdiction. Vaden v. Discover Bank, 556 U.S. 49, 59-61 (2009).
Plaintiff’s Complaint is a dispossessory warrant which is based solely on
state law. 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 Group, Inc. v. Vornado Air

5

Circulation Sys., Inc., 535 U.S. 826, 830-32 (2002). Removal is not proper based
on federal-question jurisdiction.
The Court’s jurisdiction in this action also cannot be based on diversity of
citizenship, which extends to “all civil actions where the matter in controversy
exceeds the sum or value of $75,000,” and is between “citizens of different States.”
28 U.S.C. § 1332(a)(1), (2). It appears that the parties are both Georgia citizens,
and even if diversity did exist, Defendant fails to show that the amount-incontroversy exceeds $75,000.00. The Court must look only to Plaintiff’s claim to
determine if the amount-in-controversy requirement is satisfied. See, e.g.,
Novastar Mortg. Inc. v. Bennett, 173 F.Supp.2d 1358, 1361 (N.D. Ga. 2001), aff’d,
35 F. App’x 585 (11th Cir. 2002). The Complaint here seeks possession of
property Defendant currently possesses and court fees totaling $139. The amountin-controversy requirement is not satisfied and removal is not proper based on
diversity of citizenship. See 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

6

requirement.”). The Court thus lacks subject-matter jurisdiction and this action is
required to be remanded to state court. 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.”). 2, 3
III.

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

and Final Report and Recommendation [2] is ADOPTED.
IT IS FURTHER ORDERED that this action is REMANDED to the
Magistrate Court of Fulton County, Georgia.

SO ORDERED this 6th day of December, 2017.

2

The Court notes that Defendant, on her Civil Cover Sheet but not in her
Notice of Removal, indicates that federal jurisdiction in this action is based on
Defendant’s status as a U.S. Government entity [1-2]. Defendant has not alleged
in her Notice of Removal that she is an officer or agency of the federal government
and it appears instead that Defendant is a private citizen.
3
Even if the Court had subject-matter jurisdiction, the Court is unable to grant
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.
7