United States District Court, N.D. Georgia, Atlanta Division
OPINION AND ORDER
WILLIAM S. DUFFEY, JR., UNITED STATES DISTRICT JUDGE
matter is before the Court on Magistrate Judge Janet F.
King's Final Report and Recommendation
(“R&R”) , which recommends remanding this
dispossessory action to the Magistrate Court of Douglas
December 30, 2016, Plaintiff CitiMortgage, Inc.
(“Plaintiff”) initiated a dispossessory
proceeding against its tenants, Defendants Delores S. Davis
and Trellis Eason (“Defendants”) in the
Magistrate Court of Douglas County, Georgia. The Complaint
asserts that Defendants are tenants at sufferance following a
foreclosure sale of the Property and seeks possession of
premises currently occupied by Defendants.
January 20, 2017, Defendants, proceeding pro se,
removed the Douglas County action to this Court by filing
their Petition for Removal and an application to proceed
in forma pauperis (“IFP Application”)
Defendants appear to assert that there is federal subject
matter jurisdiction because there is a question of federal
law in this action. Defendants claim in their Petition for
Removal that “Respondent” 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 [sic], ” and the
Due Process Clause of the Fourteenth Amendment. (Petition for
Removal [1.1] at 3). Defendants also assert counterclaims for
“improper foreclosure” and that Plaintiff
violated the Fifth and Seventh Amendments.
January 23, 2017, Magistrate Judge King granted
Defendants' 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 Douglas 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 their Petition for Removal,
the Magistrate Judge also considered whether the Court has
subject-matter jurisdiction based on diversity of
citizenship. The Magistrate Judge found that Defendants
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
are no objections to the R&R.
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), cert. denied, 464 U.S. 1050 (1984).
do not object to the R&R's finding 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 Defendants are citizens of
different states, or that the amount in controversy exceeds
the statutory threshold of $75, 000. See 28 U.S.C.
§ 1332(a); Carter v. Butts Cty., Ga., et al.,
821 F.3d 1310, 1322 (11th Cir. 2006) (quoting Steed v.
Fed. Nat'l Mortg. Corp., 689 S.E.2d 843, 848
(Ga.Ct.App. 2009)) (“[U]nder Georgia law,
‘[w]here former owners of real property remain in
possession after a foreclosure sale, they become tenants at
sufferance, '” and are thus subject to a
dispossessory proceeding under O.C.G.A. § 44-7-50, which
“provide[s] the exclusive method by which a landlord
may evict the tenant”); 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
the Court lacks both federal question and diversity
jurisdiction, the Magistrate Judge recommended that this
action 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.”). Defendants
did not object to this recommendation and the Court finds no
plain error in it.