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Simon v. Amaechi

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

March 27, 2017

BENA V. SIMON and GEORGE V. SIMON, Plaintiffs,
v.
ELSIE AMAECHI, Defendant. v.

          OPINION AND ORDER

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

         This matter is before the Court on Defendant Elsie Amaechi's (“Defendant”) Objections [7, 8][1] to Magistrate Judge Justin S. Anand's Final Report and Recommendation (“R&R”) [2], which recommends remanding this dispossessory action to the Magistrate Court of Gwinnett County, Georgia. Also before the Court is Plaintiff Bena V. Simon's and George V. Simon's (“Plaintiffs”) Motion to Remand [6].

         I. BACKGROUND

         Defendant, proceeding pro se, has a lengthy litigation history involving attempts to delay foreclosure and dispossessory actions on other properties.[2]

         On February 2, 2017, Plaintiffs initiated a dispossessory proceeding against Defendant in the Magistrate Court of Gwinnett County, Georgia. (See [1.1] at 6). The Complaint asserts that Defendant is a tenant at sufferance following a foreclosure sale of the Property and seeks possession of premises currently occupied by Defendant.[3]

         On February 13, 2017, Defendant filed her Dispossessory Answer in state court and asserted a counterclaim against Plaintiffs for “wrongfully file [sic] desposery [sic], ” failure to repair requested repairs, fraud, harassment, and discrimination. (See [1.1] at 7). Defendant, apparently in response to Plaintiffs' Complaint, also filed a document in state court asserting that she made substantial improvements to the Property[4] after discovering that the Property “need[ed] lots of repairs, ” (see [1.1] at 3), that she informed Plaintiffs of the Property “damages and repairs” but they never “did a single repair[] . . . or [pay] the bank” and continued to “collect[] [her] money, ” that she intended to buy the Property through a lease-to-own agreement, and that she helped Plaintiffs “stop the foreclosure” by hiring an attorney and by paying court fees to avoid foreclosure, but that Plaintiffs acted in “bad faith” and the Property was now in foreclosure. (Id. at 3-4).

         On February 13, 2017, Defendant removed the Gwinnett County Action to this Court by filing her 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 a question of federal law in this action. Defendant does not claim removal under 28 U.S.C. § 1443 or assert any violations of her federal civil rights. Defendant instead appears to assert counterclaims against Plaintiffs for not “do[ing] any repairs” to the Property, fraud, and harassment. (See Notice of Removal [1.1] at 1-2).

         On February 14, 2017, Magistrate Judge Anand 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 Gwinnett County. The Magistrate Judge found that the Complaint filed in Magistrate Court 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. Although not alleged in her Notice of Removal, the Magistrate Judge also considered whether the Court has subject-matter jurisdiction based on diversity of citizenship. The Magistrate Judge 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 that this case is required to be remanded to the state court.

         On February 27, 2017, Plaintiffs filed a Motion to Remand to State Court.

         On March 14, 2017, Defendant filed her “Motion for Interlockutory [sic] Injunction” [7] and “Answer to Written Objection” [8], which the Court construes as her 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); Williams v. Wainwright, 681 F.2d 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), cert. denied, 464 U.S. 1050 (1984).

         Defendant's Objections are largely incomprehensible, frivolous and conclusory. In them, Defendant reasserts generally that she has “spent lots of money in repairing” the Property, that she “owe[d] no money when dispossession [sic] was filed against [her], ” and that the Court has “probable jurisdiction in this case.” (See [7] at 1; see also [8] at 1-2). Even though Defendant's “objections” to the ...


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