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 Catherine M.
Salinas's Final Report and Recommendation
(“R&R”) , which recommends remanding this
dispossessory action to the Magistrate Court of Gwinnett
February 21, 2017, Plaintiff CSH 2016- 1 Borrower, LLC
(“Plaintiff”) initiated a dispossessory
proceeding against its tenant, Defendant Rose Anderson
(“Defendant”) in the Magistrate Court of Gwinnett
County, Georgia. The Complaint seeks possession of premises
currently occupied by Defendant and seeks past due rent, fees
April 5, 2017, Defendant, proceeding pro se, removed
the Gwinnett County action to this Court by filing her Notice
of Removal and an application to proceed in forma
pauperis (“IFP”) . Defendant appears to
assert that there is federal subject matter jurisdiction
because there is in this case a question of federal law.
Defendant claims in her Petition for Removal of Action that
Plaintiff violated the Fair Debt Collection Practices Act, 15
U.S.C. § 1692 et seq. (“FDCPA”) and
the Due Process Clause of the Fourteenth Amendment. (Notice
of Removal [1.2] at 2).
April 14, 2017, Magistrate Judge Salinas 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
Plaintiff's Complaint 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.
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).
Magistrate Judge found that Plaintiff's Complaint does
not present a federal question. 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 Court finds that Plaintiff's Complaint does not
present a federal question.
Court also lacks diversity jurisdiction over this action.
Diversity jurisdiction exists over suits between citizens of
different states where the amount in controversy exceeds $75,
000. 28 U.S.C. § 1332(a). Here, the record does not show
the citizenship of the parties, and, even if there is
complete diversity between the parties, the
amount-in-controversy requirement cannot be satisfied because
this is a dispossessory action. “[A] claim seeking only
ejectment in a dispossessory action cannot be reduced to a
monetary sum for the purposes of determining the amount in
controversy.” Citimortgage, Inc. v. Dhinoja,
705 F.Supp.2d 1378, 1382 (N.D.Ga. 2010); Novastar Mortg.,
Inc. v. Bennett, 173 F.Supp.2d 1358, 1361 (N.D.Ga.
2001), aff'd, 35 F.App'x 858 (11th Cir.
2002); cf. 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 controversy
requirement.”). The amount-in-controversy requirement
is not satisfied and removal is not proper based on diversity
the Court lacks both federal question and diversity
jurisdiction, this action is required to be remanded to state
court. See 28 U.S.C. § 1447(c) (“If at
any time before final judgment it appears that the district