Sanchez v. Womack
Filing
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OPINION AND ORDER adopting Magistrate Judge Justin S. Anand's Final Report and Recommendation 3 and remanding this action to the Magistrate Court of Cobb County, Georgia. Signed by Judge William S. Duffey, Jr on 1/29/18. (ddm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
JOSE J. SANCHEZ,
Plaintiff,
v.
1:17-cv-5011-WSD
BARRET WOMACK, and Others,
Defendants.
OPINION AND ORDER
This matter is before the Court on Magistrate Judge Justin S. Anand’s Final
Report and Recommendation [3] (“R&R”), which recommends remanding this
action to the Magistrate Court of Cobb County, Georgia.
On December 8, 2017, Defendant Barret Womack (“Defendant”) sought
leave to remove this state dispossessory action to this Court in forma pauperis. On
December 11, 2017, the Magistrate Judge issued his R&R, granting Defendant’s
request for leave to proceed in forma pauperis for the limited purpose of
determining whether the action was properly removed to this Court. No parties
have filed objections to the 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). 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). Where, as here, the
parties have not filed objections to the R&R, the Court reviews it for plain error.
Under 28 U.S.C. § 1331, “[t]he district courts shall have original jurisdiction
of all civil actions arising under the Constitution, laws, or treaties of the United
States.” 28 U.S.C. § 1331. Under 28 U.S.C. § 1441, a defendant may remove a
civil action to a district court on the basis of such federal question jurisdiction. See
28 U.S.C. § 1441(a). The United States Supreme Court has held that the presence
or absence of federal question jurisdiction is governed by the “well-pleaded
complaint” rule. That rule provides that federal jurisdiction exists only when a
federal question is presented on the face of the state court plaintiff’s properlypleaded complaint. See Gully v. First Nat’l Bank, 299 U.S. 109, 112-13 (1936);
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The Magistrate Judge found that Plaintiff has asserted no federal claims.
(R&R at 2). Instead, Defendant’s Petition for Removal indicates that Plaintiff’s
action in the Magistrate Court of Cobb County is a dispossessory action to evict
Defendant as a tenant for failure to pay rent. (R&R at 3). The Magistrate Judge
found that “Defendant has not identified any federal question that the Plaintiff’s
state-court dispossessory action raises.” (R&R at 3). The Magistrate Judge noted
that “[t]o the extent that Defendant is attempting to remove this action by asserting
defenses or counterclaims which invoke federal statutes, that basis of removal is
also improper.” (R&R at 3-4); see also Citimortgage, Inc. v. Dhinoja, 705 F. Supp.
2d 1378, 1381 (N.D. Ga. 2010) (“If a federal question is not presented on the face
of the complaint, it is no substitute that the defendant is almost certain to raise a
federal defense.”). The Magistrate Judge found, finally, that Defendant has not
alleged this Court has diversity jurisdiction over this action; instead, Defendant has
indicated in the Civil Cover Sheet [2.1] that both Plaintiff and Defendant are
citizens of Georgia. (R&R at 4).
The Court finds no plain error in the Magistrate Judge’s findings and
recommendations.
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For the foregoing reasons,
IT IS HEREBY ORDERED that Magistrate Judge Justin S. Anand’s Final
Report and Recommendation [3] is ADOPTED.
IT IS FURTHER ORDERED that this action is REMANDED to the
Magistrate Court of Cobb County, Georgia.
SO ORDERED this 29th day of January, 2018.
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