AIGP Clifton Glen LLC et al v. Brandon
Filing
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OPINION AND ORDER adopting Magistrate Judge Alan J. Baverman's Final Report and Recommendation 4 and remanding this action to the Magistrate Court of DeKalb County, Georgia. Signed by Judge William S. Duffey, Jr. on 6/6/18. (ddm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
AIGP CLIFTON GLEN LLC, also
known as Clifton Glen, and
PROVENCE REAL ESTATE,
Plaintiffs,
v.
1:18-cv-1360-WSD
CALVIN BRANDON,
Defendant.
OPINION AND ORDER
This matter is before the Court on Magistrate Judge Alan J. Baverman’s
Final Report and Recommendation [4] (“R&R”), which recommends remanding
this dispossessory action to the Magistrate Court of DeKalb County, Georgia.
I.
BACKGROUND
Plaintiffs AIGP Clifton Glen and Provence Real Estate (“Plaintiffs”)
initiated a dispossessory proceeding against their tenant, Defendant Calvin
Brandon (“Defendant”) in the Magistrate Court of DeKalb County, Georgia.1 The
Complaint seeks possession of premises currently occupied by Defendant, plus
past due rent, utilities, late fees and costs.
On March 30, 2018, Defendant, proceeding pro se, removed the DeKalb
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No. 18D40606.
County Action to this Court by filing his Notice of Removal2 and an application to
proceed in forma pauperis (“IFP”) [1]. Defendant appears to assert that there is
federal subject-matter jurisdiction based on the existence of a question of federal
law. He claims in her Notice of Removal that “Respondent” violated the Fair Debt
Collection Practices Act, 15 U.S.C. § 1692. (Notice of Removal [1.1] at 1).
On April 2, 2018, Magistrate Judge Baverman issued his R&R [4]
recommending that the Court remand this case to state court. Judge Baverman
found that Plaintiff’s underlying pleading shows that this action is a dispossessory
action, which Defendant contends violates federal law. Noting that a federal law
defense or counterclaim alone is not sufficient to confer federal jurisdiction, Judge
Baverman concluded that the Court does not have federal question jurisdiction
over this matter. Judge Baverman also found that Defendant is citizen of Georgia
([1.2] at 1), which is the state the dispossessory proceeding was brought, and that
the amount in controversy does not exceed the $75,000 jurisdictional threshold.
Judge Baverman concluded that the Court does not have diversity jurisdiction over
this matter and that this case is required to be remanded to state court.
There are no objections to the R&R.
2
The filing is styled a “Petition for Removal and Federal Stay of Eviction
Pursuant to 28 USC 1441 (B).”
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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) (per curiam). 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 a party
has not asserted objections, the Court must conduct a plain error review of the
record. United States v. Slay, 714 F.2d 1093, 1095 (11th Cir. 1983) (per curiam).
B.
Analysis
Defendant does not object to the R&R’s conclusions that Plaintiff’s
Complaint does not present a federal question and that the parties are not diverse.
The Court does not find any error in these conclusions. 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);
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Holmes Group, Inc. v. Vornado Air Circulation Sys., Inc., 535 U.S. 826, 830-32
(2002). The record also does not show that Plaintiff and Defendant are citizens of
different states, or that the amount in controversy exceeds the statutory threshold of
$75,000. See 28 U.S.C. § 1332(a); 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 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.”).3
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Even if subject-matter jurisdiction existed, the Court notes that it 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.
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III.
CONCLUSION
For the foregoing reasons,
IT IS HEREBY ORDERED that Magistrate Judge Alan J. Baverman’s
Final Report and Recommendation [4] is ADOPTED. The Clerk is DIRECTED
to REMAND this action to the Magistrate Court of DeKalb County, Georgia
SO ORDERED this 6th day of June, 2018.
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