Retreat LLC v. Moorer

Filing 6

OPINION AND ORDER OVERRULING the Defendant's 5 Objections and ADOPTING the Magistrate Judge's 3 Final Report and Recommendation. This case is hereby REMANDED to the Magistrate Court of DeKalb County. The Clerk is DIRECTED to close the case. Signed by Judge Amy Totenberg on 4/26/2018. (sap)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
RETREAT LLC, d/b/a REGAL VISTA, :
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Plaintiff,
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v.
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OLIVIA MOORER, and All Others,
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Defendants.
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CIVIL ACTION NO.
1:18-CV-1028-AT

ORDER
This matter is before the Court on the Magistrate Judge’s Report and
Recommendation (“R&R”) [Doc. 3] recommending that this dispossessory action
be remanded to the Magistrate Court of DeKalb County.
Under 28 U.S.C. § 636(b)(1), the Court reviews the Magistrate Judge’s R&R
for clear error if no objections are filed to the report. 28 U.S.C. § 636(b)(1). If a
party files objections, however, the district court must determine de novo any
part of the Magistrate Judge’s disposition that is the subject of a proper objection.
Fed. R. Civ. P. 72(b); 28 U.S.C. § 636(b).
Plaintiff filed this dispossessory action against Defendant Moorer in the
State Court of DeKalb County. Defendant Moorer asserted in her removal papers
that this Court has federal question jurisdiction over this matter because
Plaintiff’s dispossessory action violates the Fair Debt Collection Practices Act.

The Magistrate Judge concluded that federal subject matter jurisdiction was
lacking because (1) jurisdiction cannot be based on the assertion of a federal
defense or counterclaim, and (2) there were no facts alleged in Plaintiff’s
complaint that would support the existence of diversity jurisdiction. Defendant
filed timely objections to the R&R, asserting that the R&R is unconstitutional
under the due process clauses of the Fifth and Fourteenth Amendments 1, the
Seventh Amendment’s right to trial by jury, and the Bill of Rights with respect to
a trial before “Tribunal Court.”
The Court has reviewed and considered Defendant Moorer’s Objections to
the R&R on a de novo basis and finds they lack merit. Accordingly, the Court
hereby OVERRULES Defendant Moorer’s Objections and ADOPTS the
Magistrate Judge’s Report and Recommendation as the opinion of this Court.
For the reasons stated in the Magistrate Judge’s Report and Recommendation,
the Court lacks federal subject matter jurisdiction over this matter and the Court
REMANDS this case to the Magistrate Court of DeKalb County. 2 There being no
further issues before the Court, the Clerk is DIRECTED to close the case.

Although Plaintiff actually asserts a violation of the Fifteenth Amendment, it is apparent that
Plaintiff intended to object pursuant to the Due Process Clause of the Fourteenth Amendment.
2 As this case involves a pro se Defendant, the Court provides further guidance. An order
remanding the case means that the case will continue to be heard, but in the court where it was
originally filed – here, the Magistrate Court of DeKalb County. The case is simply being
returned to the Magistrate Court for further proceedings. Any future motions should be filed
with that court.
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IT IS SO ORDERED this 26th day of April, 2018.
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AMY TOTENBERG
UNITED STATES DISTRICT JUDGE

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