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 Russell G.
Vineyard's Final Report and Recommendation
(“R&R”) , which recommends remanding this
dispossessory action to the Magistrate Court of Fulton
9, 2017, Plaintiff Brentwood Creek/American Mgmt Group
(“Plaintiff”) filed, in the Magistrate Court of
Fulton County, Georgia,  a dispossessory proceeding against its
tenant, Defendant Jayme Stanback
(“Defendant”). The dispossessory proceeding seeks
possession of the premises occupied by Defendant, and past
due rent, fees and costs.
29, 2017, Defendant, proceeding pro se, removed the
Fulton County dispossessory action to this Court by filing a
Notice of Removal  and an application to proceed in
forma pauperis (“IFP”) . Defendant
appears to assert in the removal petition that federal
question jurisdiction exists because “Defendant
complains of various systematic and premeditated deprivations
of fundamental Rights guaranteed by the U.S. Constitution, by
the Constitution of the State of Georgia and by federal law,
and which deprivations are violations of 18 U.S.C.
§§ 241 and 242.” (Notice of Removal  at
5, 2017, Magistrate Judge Vineyard granted Defendant's
application to proceed IFP. The Magistrate Judge then
considered, sua sponte, whether there is federal
subject matter jurisdiction over the action removed. The
Court found that federal subject matter jurisdiction was not
present and recommended that the Court remand the case to the
Magistrate Court of Fulton County. The Magistrate Judge also
found that Plaintiff's Complaint asserts a state court
dispossessory action and that a federal law defense or
counterclaim does not confer federal question jurisdiction.
The Magistrate Judge concluded that the Court does not have
federal jurisdiction over this action.
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 assertion 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). Although the
Defendant lists various federal authorities in which the
Court has jurisdiction to hear cases, for the reasons stated
in the R&R, Defendant fails to allege facts to show that
federal question jurisdiction exists here. (Notice for
Removal  at 2).
not alleged in the Notice of Removal, the Court also
concludes that diversity jurisdiction is not present in 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). The Defendant
here does not, in the Notice of Removal, state the
citizenship of either party and does not allege facts to
establish diversity jurisdiction. Even if complete diversity
was alleged, the amount-in-controversy requirement is not
met. “[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 in not an ownership dispute, but rather 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.”). Removal was not properly based on
diversity of citizenship.
the Court lacks both federal question and diversity
jurisdiction, this action is required to be remanded to the
Fulton County Magistrate Court. See 28 U.S.C. §
1447(c) (“If at any time before final judgment it
appears that the district ...