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Banks v. Housing Authority of Dekalb County

United States District Court, N.D. Georgia, Atlanta Division

July 9, 2014

TIFFANY BANKS, TAMMY BOSS, HENRY DIXON, and YOLANDA THOMAS, Plaintiffs,
v.
HOUSING AUTHORITY OF DEKALB COUNTY, and EUGENE WALKER, in his official capacity as its Executive Director, Defendants

For Tiffany Banks, Tammy Boss, Henry Dixon, Yolanda Thomas, Plaintiffs: Angela Joyce Riccetti, Elizabeth Ann Guerrant, Lindsey Meredith Siegel, LEAD ATTORNEYS, Atlanta Legal Aid Society, Inc. - Decatur, DeKalb County Regional Office, Decatur, GA; Deborah A. Johnson, LEAD ATTORNEY, Atlanta Legal Aid Society, DeKalb County Regional Office, Decatur, GA.

For Housing Authority of DeKalb County, Eugene Walker, in his official capacity as its Executive Director, Defendants: Catherine Gibson McCauley, LEAD ATTORNEY, The Gibson Law Firm, LLC-GA, Tucker, GA; James Edward Dearing , Jr., LEAD ATTORNEY, James E. Dearing, Jr., P.C., Atlanta, GA.

Page 1297

ORDER

Amy Totenberg, United States District Judge.

This case is before the Court on Plaintiffs' Motion to Remand [Doc. 7]. For the reasons set forth below, the Court GRANTS Plaintiffs' Motion.

I. BACKGROUND

Plaintiffs filed this action in the Superior Court of DeKalb County, Georgia on April 3, 2014. ( See Doc. 1-1 at 3-13, Compl.) Plaintiffs are low-income residents of DeKalb County and are participants in the Housing Choice Voucher Program pursuant to Section 8 of the U.S. Housing Act of 1937, 42 U.S.C. § 1437f. (Compl. ¶ 1.) Plaintiffs allege that they were wrongfully terminated from the Section 8 Program by Defendant Housing Authority of DeKalb County without a fair hearing in violation of the Housing Act and both the United States and Georgia Constitutions. ( Id. ¶ 2.)

Along with their Complaint, Plaintiffs also filed a Motion for Temporary Restraining Order and Interlocutory Injunction on April 3, 2014. ( See Doc. 1-1 at 34-49, Mot. for TRO.) On April 4, 2014, the Superior Court granted Plaintiffs' Motion for TRO, reinstating Plaintiffs' Section 8 Housing Choice Voucher assistance for a period of 30 days and set the case down for a follow-up hearing on April 21, 2014. ( See Doc. 1-2, Order.)

On the morning of the scheduled hearing on April 21, 2014, Defendants filed their Verified Answer and Affirmative Defenses. ( See Doc. 1-3, Answer.) According to Plaintiffs' motion, the April 21 hearing on Plaintiffs' request for an interlocutory injunction was a full day evidentiary hearing. (Johnson Aff. ¶ ¶ 12-23.) Each of the Plaintiffs testified and were thoroughly cross-examined by Defendants. ( Id. ¶ ¶ 16, 19.) Rather than present their own affirmative evidence in opposition to the injunction, Defendants made a motion to dismiss pursuant to O.C.G.A. § 9-11-41, and presented legal argument that Plaintiffs had failed to show that they were entitled to relief. ( Id. ¶ 21.) At the conclusion of the hearing, the Superior Court denied the Defendants' motion to dismiss and ruled that the terms of the TRO/interlocutory injunction would be continued pending final trial in the action. ( Id. ¶ 23.) The Superior Court entered a written order on April 25, 2014. ( See Doc. 7-2, Order.)

Defendants filed their Notice of Removal in this Court on April 29, 2014. ( See Doc. 1.) Plaintiffs timely moved to remand this matter back to the Superior Court on May 29, 2014, arguing that Defendants waived their right to remove the case to federal court.

II. DISCUSSION

In order to remand an action to state court, a plaintiff must identify a defect in the defendant's removal. " One such defect, commonly referred to as litigating on the merits, effectively waives the defendant's right to remove a state court action to federal court." Yusefzadeh v. Nelson, Mullins, Riley & Scarborough, LLP, 365 F.3d 1244, 1246 (11th Cir. 2004); see also Fain v. Biltmore Secs., Inc., 166 F.R.D. 39, 40 (M.D. Ala. 1996) (stating " the right to remove a case to federal court

Page 1298

may be waived by acts taken in the state court, subsequent to the creation of the right to remove, that indicate the defendant has invoked the jurisdiction of the state ...


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