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Driscoll v. Elamin

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

April 17, 2015

KEVIN DRISCOLL, Plaintiff,
v.
SADIQ ELAMIN and All Others, Defendants.

OPINION AND ORDER

WILLIAM S. DUFFEY, Jr., District Judge.

This matter is before the Court on Defendant Sadiq Elamin's ("Defendant") Objections [8] to Magistrate Judge Janet F. King's Final Report and Recommendation ("R&R") [3], which recommends remanding this dispossessory action to the Magistrate Court of Gwinnett County, Georgia. Also before the Court are Plaintiff Kevin Driscoll's ("Plaintiff") Motion to Remand [5] and Motion for Sanctions [7].

I. BACKGROUND

On September 25, 2014, Plaintiff filed a dispossessory proceeding (the "Dispossessory Action")[1] against Defendant in the Magistrate Court of Gwinnett County, Georgia.[2] Plaintiff's Complaint seeks possession of premises currently occupied by Defendant and past due rent, fees and costs.

On October 14, 2014, Defendant filed an Answer indicating that he "offered and had the money to pay [his] rent on or before the date [he] usually pa[id], but [his] landlord refused to accept it." (Pet. for Removal at 9). Defendant also filed an Affidavit asserting that he intended to buy the Property through a lease-to-own agreement, that he had made substantial improvements to the Property[3], and that he helped Plaintiff "stay out of foreclosure by paying 1-3 months of lease payment in advance, " but Plaintiff did not apply Defendant's rent payments to Plaintiff's mortgage debt and the Property was now in foreclosure. (Id. at 10).

On October 28, 2014, Defendant, proceeding pro se, removed the Dispossessory Action to this Court by filing his "Petition for Removal" 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 also claims in his Petition for Removal that Plaintiff violated the Fair Debt Collection Practices Act, 15 U.S.C. § 1692, et seq. ("FDCPA"), and Rule 60 of the Federal Rules of Civil Procedure, "having a legal duty to abort eviction pursuant to O.C.G.A. [§] 51-1-6, " and the Due Process Clause of the Fourteenth Amendment. (Pet. for Removal at 1-2). Defendant asserts further that the Dispossessory Action violates his constitutional right to a jury trial. (Id.).

On October 31, 2014, Magistrate Judge King granted Defendant's application to proceed IFP. The Magistrate Judge also considered sua sponte the question of subject matter jurisdiction and recommends that the Court remand this case to the Magistrate Court of Gwinnett County. The Magistrate Judge 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, the Magistrate Judge concluded that the Court does not have federal question jurisdiction over this matter. The Magistrate Judge also found that Defendant fails to allege any facts to show that the parties' citizenship is completely diverse, or that the amount in controversy exceeds $75, 000. The Magistrate Judge concluded that the Court does not have diversity jurisdiction over this matter and that this case is required to be remanded to the state court.

On November 5, 2014, Plaintiff filed a Motion to Remand to State Court [5].

On November 7, 2014, Plaintiff filed a Motion for Sanctions [7]. Plaintiff asserts that Defendant removed the Dispossessory Action "solely for the purposes of delay" and that the Court should "impose sanctions to prevent this conduct in the future." (Mot. at 5).

On November 12, 2014, Defendant filed his Objections to the R & R.

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) (Supp. V 2011); 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). If no party has objected to the report and recommendation, a court conducts only a plain error review of the record. United States v. Slay, 714 F.2d 1093, 1095 (11th Cir. 1983) (per curiam).

Defendant does not state any specific objection to the findings in the R&R. Instead, Defendant's "objections" consist of vague, rambling allegations about perceived defects in the dispossessory process and the Georgia court system.[4] Defendant's objections are largely incomprehensible, frivolous and conclusory. They do not constitute valid objections and the Court will not consider them. See Marsden v. Moore, 847 F.2d 1536, 1548 (11th Cir. 1988) ("Parties filing objections to a magistrate's report and recommendation must specifically identify those findings objected to. Frivolous, conclusive, or general objections need not be considered by the district court."). The Court thus reviews the R&R for plain error.

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 plain 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); 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, and, even if they are, there is no evidence to support 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.").[5]

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.").[6]

III. CONCLUSION

For the foregoing reasons,

IT IS HEREBY ORDERED that Defendant's Objections [8] are OVERRULED.

IT IS FURTHER ORDERED that Magistrate Judge Janet F. King's Final Report and Recommendation [3] is ADOPTED. This action is REMANDED to the Magistrate Court of Gwinnett County, Georgia.

IT IS FURTHER ORDERED that Plaintiff's Motion to Remand to State Court [5] is DENIED AS MOOT.

IT IS FURTHER ORDERED that Plaintiff's Motion for Sanctions [7] is DENIED WITHOUT PREJUDICE.

SO ORDERED.


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