United States District Court, S.D. Georgia, Statesboro Division
J. RANDAL HALL, District Judge.
This matter comes before the Court on Plaintiff Carrington Mortgage Services, LLC's ("Carrington") Motion to Remand to State Court. (Doc. 5.) On June 5, 2015, Defendants removed this action from the Magistrate Court of Bulloch County, Georgia, alleging that jurisdiction is proper pursuant to 28 U.S.C. §§ 1331, 1332, 1342, and 1357. (Doc. 1, ¶ 2.) Specifically, Defendants contend that "a Federal question of law appears on the face of the Plaintiff's complaint and jurisdiction is proper." (Id.) Finally, Defendants argue that the Court "has supplemental and pendant Jurisdiction over all state law claims asserted in Defendants' complaint pursuant to 28 U.S.C. 1367 and 1441." (Id.) Upon review, Plaintiff's Motion for Remand (don. 5) is hereby GRANTED.
On April 21, 2015, Carrington filed an action in Bulloch County Magistrate Court, seeking possession of property located at 1298 Banks Dairy Road, Portal, Georgia. (Doc. 1-2.) Carrington represents that the Magistrate Court hearing went forward as scheduled, seemingly without notice of Defendants' removal, and entered judgment in favor of Carrington. (Doc. 6 at 2.) A writ of possession was due to be issued on June 15, 2015. (Id.)
In Defendants' notice of removal, they present a host of counterclaims against Carrington, alleging illegal foreclosure sale, illegal dispossessory, violation of the Fair Debt Collection Practice Act, and "violation of unfair and deceptive practice." (Doc. 1.) Moreover, Defendants seek "to enjoin [Carrington] from conducting and enforcing an illegal dispossessory of possession with respect to property located at 1298 Banks Dairy Road, Portal, Georgia... and to set aside the illegal foreclosure sale and to suspend payments into the registry of State Court of Bulloch County and for damages based upon wrongful foreclosure...." (Id. ¶¶ 6-8.)
Any civil action originally filed in state court of which the federal district courts have original jurisdiction may be removed to federal court. 28 U.S.C. § 1441(a). As the removing party, Defendants have the burden to prove the existence of federal jurisdiction. Pacheco de Perez v. AT&T Co., 139 F.3d 1368, 1373 (11th Cir. 1998). A federal court should strictly construe removal statutes and resolve any doubts regarding the existence of federal jurisdiction in favor of remand. Diaz v. Sheppard, 85 F.3d 1502, 1505 (11th Cir. 1996). As noted above, Defendants rely on 28 U.S.C. §§ 1331, 1332, 1342, and 1357 to support removal. The Court addresses each section in turn.
A. Diversity Jurisdiction - 28 U.S.C. § 1332
Federal courts may exercise jurisdiction where there is diversity of citizenship and the amount in controversy exceeds $75, 000. Diversity jurisdiction is not present in this case. First,
as a dispossessory proceeding under Georgia law is not an ownership dispute, but rather only a dispute over the limited right of possession, title to the 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.
Fed. Home Loan Mortg. Corp. v. Williams, Nos. 1:07-cv-2864, 1:07cv-2865, 2008 WL 115096, at *2 (N.D.Ga. Jan. 29, 2008). Without any other indication of the amount in controversy, Defendants have not met their burden of showing the requisite amount in controversy is met. See Conference Am., Inc. v. Q.E.D. Int'l, Inc., 50 F.Supp.2d 1239, 1242 (M.D. Ala. 1999) (holding that the value of a counterclaim is not to be considered in assessing the amount in controversy).
Moreover, Section 1441(b)(2) provides that "[a] civil action otherwise removable solely on the basis of the jurisdiction under section 1332(a)... may not be removed if any of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought." Here, and in their previous federal case, Defendants admit that they are citizens of Georgia for jurisdictional purposes. Therefore, as Defendants, their removal of this action to a federal court sitting in Georgia is improper. See Fed. Home Loan Mortg. Corp. v. Lipai, 1:11-cv-2386, 2011 WL 4436493, at *2 (N.D.Ga. Aug. 3, 2011) (finding that removal was improper because "Defendant has listed a Georgia address as her address for service, the same address as the premises that are the subject of the dispossessory action"), R&R adopted in 2011 WL 4443480 (N.D.Ga. Sept. 21, 2011).
B. Federal Question Jurisdiction - 28 U.S.C. § 1331
Defendants contend that "a Federal question of law appears on the face of the Plaintiff's complaint...." (Doc. 1, ¶ 2.) District courts have "original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331. Whether a claim "arises under" federal law "is governed by the well pleaded complaint rule, ' which provides that federal jurisdiction exists only when a federal question is presented on the face of the plaintiff's properly pleaded complaint." Dunlap v. G&L Holding Grp. Inc., 381 F.3d 1285, 1290 (11th Cir. 2004) (quoting Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987)). If a complaint establishes either that federal law creates the cause of action or that the plaintiff's right to ...