United States District Court, N.D. Georgia, Atlanta Division
CSS THE ESTAES OF MCDONOUGH WOODWARD MANAGEMENT PARTNERS, Plaintiff,
KARLOWA DUKES, Defendant.
OPINION AND ORDER
WILLIAM S. DUFFEY JR UNITED STATES DISTRICT JUDGE
matter is before the Court on Defendant Karlowa Dukes'
(“Defendant”) Motion to “Vacate and Set
Aside Wrongful Eviction And Dispossessory And Declaratory
Relief Preliminary Statement, And Lack of Subject Matter
Jurisdiction, Emergency Motion Injunction Relief, Set Aside
Writ of Possession” (“Motion”) . This
motion was in response to Magistrate Judge J. Clay
Fuller's Report and Recommendation
(“R&R”) [4.2], which recommends this action
be remanded for lack of subject matter jurisdiction.
11, 2017, Plaintiff CSS The Estates of McDonough Woodward
Management Partners (“Plaintiff”) filed, in the
Magistrate Court of Henry County, Georgia,  a dispossessory
proceeding against its tenant, Defendant Karlowa Dukes
(“Defendant”). The dispossessory proceeding
sought possession of the premises occupied by Defendant, and
past due rent, fees and costs.
6, 2017, the Magistrate Court of Henry County ordered
Defendant to pay $2, 189.38 in principal, $75.50 in court
costs and issued an Writ of Possession for Plaintiff.
(Judgment and Order [1.1] at 6).
20, 2017, Defendant, proceeding pro se, removed the
Henry 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 the matter,
asserting, “[This] [d]ispossessory action is in
violation of [the] 14th Amendment of the U.S. Constitution
with respect to Due Process of law.” (Notice of Removal
 at 3).
22, 2017, the Magistrate Judge granted Defendant's
application to proceed IFP and considered sua sponte
whether the Court has subject matter jurisdiction over this
case. 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 concluded that there is no
federal jurisdiction over this action and recommended that
the Court remand the case to the Magistrate Court of Henry
27, 2017, Defendant filed the Motion in response to the
R&R, which the Court construes as Defendant's
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,
681F.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). In this case
Defendant filed Objections and the Court conducts a de
asserts in her Motion, “Jurisdiction and venue of this
Court over this matter is invoked pursuant to the [sic] 28
U.S.C. A§ [sic] 1331, 1332 1343 and 1357.” (Motion
 at 2). 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. The federal issues raised in Defendant's
removal petition are defenses or counterclaims to the state
dispossessory action and are not a ground for removal based
on the presence of a federal question.
Court's jurisdiction in this action also cannot be based
on diversity of citizenship. 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 states, in her Motion, her own
citizenship and alleges that Plaintiff “is not showing
a physical address but a P.O Box.” (Motion  at 2).
This is not sufficient to allege diversity of the parties.
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 ...