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 Walter E.
Johnson's Final Report and Recommendation 
(“R&R”), which recommends remanding this
dispossessory action to the Magistrate court of Fulton
13, 2017, Plaintiff Altisource Residential, LP
(“Plaintiff”) filed, in the Magistrate Court of
Fulton County, Georgia,  a dispossessory proceeding against its
tenant, Defendant Brittany L. Newkirk
(“Defendant”). The dispossessory proceeding seeks
possession of the premises occupied by Defendant, and past
due rent, fees and costs.
5, 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 the district
court has federal question jurisdiction over this matter, as
well as jurisdiction under various federal statutes. (Notice
of Removal  at 1).
7, 2017, Magistrate Judge Johnson 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
“Complaint, ” in this case, asserts a state court
dispossessory claim. In order for Defendant to establish
federal question jurisdiction, a federal question must be
stated in the well-pleaded complaint. The Magistrate Judge
found that, in this action, there was no federal question.
The Magistrate Judge found further that removal, under 28
U.S.C. § 1441, is not procedurally proper because
Defendant is a citizen of Georgia, the state in which this
action was originally filed. See 28 U.S.C. §
1441(b)(2). The Magistrate Judge concluded that there is no
federal jurisdiction over this action and recommended that
the Court remand the case to the Magistrate Court of Fulton
County. (R&R  at 3).
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 recommendation to which
objection is made.” 28 U.S.C. § 636(b)(1). With
respect to those findings and recommendation to which
objection 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). In this case
there are no objections and the Court reviews the R&R for
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
counter claims 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). Defendant, in
the Notice of Removal , “specifically complains on
matters which go to related federal questions, ”
listing 28 U.S.C. § 1331, 28 U.S.C. § 1367, 28
U.S.C. § 1441, as well as other federal authorities.
(Notice of Removal  at 5). The federal issues raised,
here, by the Defendant are defenses or counterclaims to the
dispossessory action and therefore are not a basis for
removal based on the presence of a federal question.
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, 000.00. 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 is 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 based on diversity of
citizenship is not available in this case.
Court lacks both federal question and diversity jurisdiction
and 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 the final judgment it
appears that the district court lacks subject matter
jurisdiction, the case shall be remanded.” See
U.S.C. § 1332(a). Removal to the district court, in this
action, is procedurally ...