United States District Court, N.D. Georgia, Atlanta Division
JOHN A. SNELLINGS, Plaintiff,
STEPHEN SMITH and SABRINA SMITH, Defendants.
OPINION AND ORDER
WILLIAM S. DUFFEY, JR. UNITED STATES DISTRICT JUDGE
matter is before the Court on Magistrate Judge J. Clay
Fuller's Final Report and Recommendation
(“R&R”) , which recommends remanding this
dispossessory action to the Magistrate Court of Gwinnett
February 16, 2017, Plaintiff John Snellings
(“Plaintiff”) initiated a dispossessory
proceeding against his tenants, Stephen Smith and Sabrina
Smith (“Defendants”), in the Magistrate Court of
Gwinnett County, Georgia. The Complaint seeks possession of the
premises currently occupied by Defendants and seeks past due
rent, fees and costs.
March 3, 2017, Defendants removed the Gwinnett County Action
to this Court by filing their Notice of Removal and an
application to proceed in forma pauperis
(“IFP”) . Defendants appear to assert that
there is federal subject matter jurisdiction because there is
a question of federal law in this action. In their Notice of
Removal, Defendants claim that Plaintiff violated the Fair
Debt Collection Practices Act, 15 U.S.C. § 1692, et
seq. (“FDCPA”), the Fair Housing Act, 42
U.S.C. § 3631 et seq., and Rule 60 of the
Federal Rules of Civil Procedure. Defendants claim further
that the Court “[has] the legal duty to abort eviction
pursuant to O.C.G.A. [§] 51-1-6 and 15 U.S.C. [§]
1692.” (Notice of Removal [1.1] at 1).
March 8, 2017, Magistrate Judge Fuller 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 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. The Magistrate Judge did not consider whether
subject-matter jurisdiction could be based on diversity of
citizenship because Defendants, in their Notice of Removal,
appeared to base subject-matter jurisdiction only on federal
March 17, 2017, Defendants filed their “Response to
Report and Recommendation, ” which the Court construes
as their 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 (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).
Objections are conclusory and do not address the Magistrate
Judge's reasons for recommending remand. 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.”); see also Macort v. Prem, Inc., 208
F. App'x 781, 784 (11th Cir. 2006) (“It is critical
that the objection be sufficiently specific and not a general
objection to the report.”). These are not valid
objections, and the Court will not consider them. The Court
reviews the R&R for plain error.
do not object to the R&R's finding that
Plaintiff's Complaint does not present a federal
question. The Court does not find any plain error in this
conclusion. 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).
not alleged in their Notice of Removal, the Court also
concludes that diversity jurisdiction is not present in this
action because Defendants fail to allege any facts to show
that the parties' citizenship is completely diverse, or
that the amount in controversy exceeds the statutory
threshold of $75, 000. See 28 U.S.C. § 1332(a).
Even if there is complete diversity between the parties, the
amount-in-controversy requirement cannot be satisfied because
this is a dispossessory action. The Court must look only to
Plaintiff's claim to determine if the
amount-in-controversy requirement is satisfied. See,
e.g., Novastar Mortg. Inc. v. Bennett, 173
F.Supp.2d 1358, 1361 (N.D.Ga. 2001), aff'd, 35
F. App'x 585 (11th Cir. 2002). The Complaint here seeks
possession of property Defendants currently possess. The
amount-in-controversy requirement is not satisfied and
removal is not proper based on diversity of citizenship.
See 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