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SG Miller Station-Atlanta, LLC v. Bolden

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

March 2, 2017

SG MILLER STATION-ATLANTA, LLC a/a/f MILLER STATION ON PEACHTREE APTS., Plaintiff,
v.
GEORGE BOLDEN, and All Others, Defendants.

          OPINION AND ORDER

          WILLIAM S. DUTFEY, JR., UNITED STATES DISTRICT JUDGE

         This matter is before the Court on Magistrate Judge Russell G. Vineyard's Final Report and Recommendation (“R&R”) [3], which recommends remanding this dispossessory action to the Magistrate Court of DeKalb County, Georgia.

         I. BACKGROUND

         On September 15, 2016, Plaintiff Miller Station-Atlanta, LLC a/a/f Miller Station on Peachtree Apts. (“Plaintiff”) initiated a dispossessory proceeding against its tenant, Defendant George Bolden (“Defendant”) in the Magistrate Court of DeKalb County, Georgia.[1] The Complaint seeks possession of premises currently occupied by Defendant and seeks past due rent, fees and costs.

         On October 24, 2016, Defendant, proceeding pro se, removed the DeKalb County action to this Court by filing his Notice of Removal and an application to proceed in forma pauperis (“IFP”) [1]. Defendant appears to assert that there is federal subject matter jurisdiction because there is in this case a question of federal law.

         On October 28, 2016, Magistrate Judge Vineyard granted Defendant's application to proceed IFP. The Magistrate Judge then considered, sua sponte, whether there is federal subject matter jurisdiction. The Court found that federal subject matter jurisdiction was not present and recommended that the Court remand the case to the Magistrate Court of DeKalb County. The Magistrate Judge found that the Complaint filed in DeKalb County asserts a state court dispossessory action and does not allege federal law claims. Because a federal law defense or counterclaim does not 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 failed 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 recommended that this case be remanded to the state court.

         On November 10, 2016, in lieu of objecting to the R&R, Defendant filed his Petition for Extension of Time to File Objections [5]. Defendant “ask[s] the Court for more time to file an answer and or respond to the remand petition.” (See [5] at 1). Defendant claims he needs additional time “so that [he] can do research and write up.” (Id.).

         On November 23, 2016, Plaintiff filed its Motion in Opposition to Defendant's Petition for Extension of Time to File Objections. Plaintiff argues that “[a]n extension of time would extremely prejudice the Plaintiff and deprive them of their right to obtain their property back.” Plaintiff argues further that “Defendant has failed to state a legal basis for which his request for an extension of time to file objections should be granted.” (See [6] at 3).

         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), cert. denied, 459 U.S. 1112 (1983). 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 objections have not been asserted, the Court must conduct a plain error review of the record. United States v. Slay, 714 F.2d 1093, 1095 (11th Cir. 1983).

         More than four months after the R&R gave Defendant notice that the parties may file written objections to the R&R within fourteen (14) days of service, and Defendant still has not filed Objections. The time period for filing Objections has expired, and Defendant otherwise fails to show good cause for the delay.

         Defendant's Petition for Extension of Time to File Objections [5] is denied. The Court, in its discretion, nevertheless ...


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