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U.S. Bank National Association v. Sanders

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

September 30, 2014

U.S. BANK NATIONAL ASSOCIATION, Plaintiff,
v.
TINA M. SANDERS, Defendant.

OPINION AND ORDER

WILLIAM S. DUFFEY, Jr., District Judge.

This matter is before the Court on Magistrate Judge Walter E. Johnson's Report and Recommendation ("R&R") [4] which recommends remanding this dispossessory action to the Magistrate Court of Gwinnett County, Georgia. Also before the Court is Defendant's Application to Appeal In Forma Pauperis [7].

I. BACKGROUND

On April 30, 2014, U.S. Bank National Association ("Plaintiff" or "U.S. Bank") filed, in the Magistrate Court of Gwinnett County, Georgia, a dispossessory proceeding ("Complaint") [1.1 at 2-3] against Tina M. Sanders ("Defendant" or "Sanders"). The Complaint asserts that Defendant is a tenant at sufferance following an April 1, 2014, foreclosure sale of Defendant's property.

On May 20, 2014, Defendant, proceeding pro se, removed the Gwinnett County Action to this Court on the basis of diversity of citizenship. (Notice of Removal [1] at 2).

On May 20, 2014, Defendant also filed her "First Amended Answer, Third Party Complaint and Counterclaim" ("Answer") [1.1 at 9-11]. Defendant alleges that she "did not receive proper notice of the alleged foreclosure" and that "her Note is paid in full and there is not [sic] default" because "[t]he United States of American [sic] [p]aid [her mortgage] via the Pooling and Service [sic] Agreement." (Answer at 2). Defendant asserts a counterclaim for violation of the False Claims Act and seeks to recover $1, 000, 000.

On May 27, 2014, Magistrate Judge Johnson issued his R&R. The Magistrate Judge considered, sua sponte , whether the Court has subject-matter jurisdiction over this action. He concluded that the Court's jurisdiction cannot be based on diversity of citizenship. He also found that Plaintiff's Complaint is a dispossessory action, which is based on state law. Noting that a federal law defense or counterclaim alone is not sufficient to confer federal jurisdiction, the Magistrate Judge concluded that the Court does not have federal question jurisdiction over this matter. Because the Court lacks subject-matter jurisdiction, the Magistrate Judge recommended that this action be remanded to state court.

On June 9, 2014, Defendant filed her Application to Appeal In Forma Pauperis ("IFP") [7], seeking to appeal the Magistrate Judge's R&R.

On August 18, 2014, the Eleventh Circuit dismissed sua sponte Defendant's appeal [13]. The Eleventh Circuit found that it lacked jurisdiction to review directly the R&R, which is not a final and appealable decision. Because the Eleventh Circuit has dismissed her appeal, Defendant's Application to Appeal IFP is denied as moot.[1]

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).

The parties have not objected to the R&R and the Court thus conducts a plain error ...


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