United States District Court, N.D. Georgia, Atlanta Division
UNITED STATES MAGISTRATE JUDGE'S FINAL REPORT
J. RAVERMAN, UNITED STATES MAGISTRATE JUDGE
matter has been submitted to the undersigned upon
Plaintiff's notice of removal. [Doc. 1]. For the
following reasons, the Court RECOMMENDS that
this matter be REMANDED to the Magistrate
Court of Fulton County due to lack of subject matter
February 8, 2017, Plaintiff filed a dispossessory proceeding
against Defendant and all other occupants of the premises at
3324 Peachtree Road, # 2416, Atlanta, Georgia, 30326
(“the Property”) in the Magistrate Court of
Fulton County, alleging that Defendant was a holdover
following foreclosure and seeking possession of the Property.
[Doc. 1 at 8]. Service of process was accomplished by
posting a copy of the summons on the door of the Property.
[Id.]. Defendant removed the action to this Court on
February 22, 2017, contending that this Court has
federal-question jurisdiction to hear this dispute based upon
42 U.S.C. § 1983 and 18 U.S.C. §§ 241-42.
[Id. at 1-2].
Court has an obligation to insure that subject matter
jurisdiction exists. “ ‘Subject matter
jurisdiction . . . refers to a tribunal's power to hear a
case.' ” Lobo v. Celebrity Cruises, Inc.,
704 F.3d 882, 891 (11th Cir. 2013) (quoting
Morrison v. Nat'l Australia Bank, Ltd., 561 U.S.
247, 254 (2010)). “As the Federal Rules of Civil
Procedure state, ‘If the court determines at any time
that it lacks subject-matter jurisdiction, the court must
dismiss the action.' ” Williams v. Warden,
Federal Bureau of Prisons, 713 F.3d 1332, 1337-38
(11th Cir. 2013) (quoting Fed.R.Civ.P. 12(h)(3));
accord Gonzalez v. Thaler, 586 U.S. 134, 141 (2012)
(“When a requirement goes to subject-matter
jurisdiction, courts are obligated to consider sua
sponte issues that the parties have disclaimed or have
not presented.”); id. (“Subject-matter
jurisdiction can never be waived or forfeited.”);
see also Cadet v. Bulger, 377 F.3d 1173, 1179
(11th Cir. 2004) (“Federal courts are
obligated to inquire into subject-matter jurisdiction sua
sponte whenever it may be lacking.”) (quotation marks
Court must liberally construe pro se pleadings,
holding them to a less stringent standard than pleadings
drafted by attorneys. Hughes v. Lott, 350 F.3d 1157,
1160 (11th Cir. 2003) (citation omitted). However,
the leniency afforded pro se litigants does not give
the courts license to serve as de facto counsel or
permit them to rewrite an otherwise deficient pleading in
order to sustain an action. Hudson v. Middle Flint
Behavioral Healthcare, 522 Fed.Appx. 594, 596
(11th Cir. June 20, 2013) (citing GJR Inv.,
Inc. v. County of Escambia, Fla., 132 F.3d 1359, 1369
(11th Cir. 1998)). Moreover, “[l]iberal
construction has its limits . . . and this court may not
rewrite an otherwise deficient [pleading] in order to create
jurisdiction.” In re Davis, 237 B.R. 177, 181
(M.D. Ala. 1999) (citing GJR Inv., Inc., 132 F.3d at
1369; Peterson v. Atlanta Hous. Auth., 998 F.2d 904,
912 (11th Cir. 1993)).
defendant may remove a case from state court to federal court
if the federal court has original jurisdiction over the case.
28 U.S.C. § 1441(a). Thus, a district court lacks
subject-matter jurisdiction over a removal action when it
does not have “original jurisdiction over the
plaintiff's claims.” Univ. of S. Ala.
v. Am. Tobacco Co., 168 F.3d 405, 410 (11th
Cir. 1999) (emphasis added). Said another way, removal is
proper if the plaintiff's case originally could
have been filed in federal court. See Caterpillar, Inc.
v. Williams, 482 U.S. 386, 392 (1987). While a defendant
is entitled to remove to the appropriate federal district
court any civil action over which district courts have
original jurisdiction, see 28 U.S.C. §§
1331 and 1441(a), a plaintiff “is the master of the
complaint, free to avoid federal jurisdiction by pleading
only state claims even where a federal claim is also
available.” Hill v. BellSouth Telecomms.,
Inc., 364 F.3d 1308, 1314 (11th Cir. 2004)
jurisdiction under § 1441 arises if there is diversity
of citizenship or the complaint presents a federal question.
See 28 U.S.C. § 1441(b); Geddes v. Am.
Airlines, Inc., 321 F.3d 1349, 1352 n.2 (11th
Cir. 2003); Blab T.V. of Mobile, Inc. v. Comcast Cable
Commc'ns, Inc., 182 F.3d 851, 854 (11th
Cir. 1999). “The district court may remand a case
sua sponte for lack of subject matter jurisdiction
at any time.” Corporate Mgmt. Advisors, Inc. v.
Artjen Complexus, Inc., 561 F.3d 1294, 1296
(11th Cir. 2009); see also 28 U.S.C.
§ 1447(c) (“If at any time before final judgment
it appears that the district court lacks subject matter
jurisdiction, the case shall be remanded.”). Further,
“[f]ederal courts are courts of limited jurisdiction,
and there is a presumption against the exercise of federal
jurisdiction, such that all uncertainties as to removal
jurisdiction are to be resolved in favor of remand.”
Russell Corp. v. Am. Home Assurance Co., 264 F.3d
1040, 1050 (11th Cir. 2001). Because removal from
a state court constitutes an infringement upon state
sovereignty, the removal requirements must be strictly
construed and “all doubts about jurisdiction should be
resolved in favor of remand to state court.” Univ.
of S. Ala., 168 F.3d at 411.
notice of removal alleges federal question jurisdiction based
upon 42 U.S.C. § 1983 and 18 U.S.C. §§ 241-42,
albeit without offering any facts whatsoever describing how
Plaintiff violated these federal statutes. [See Doc.
1 at 1-2]. The Court also notes that, on the civil cover
sheet, Defendant indicated that removal was based upon
federal question jurisdiction and that both parties were
citizens of the state of Georgia. [Doc. 1-1 at 1].
Accordingly, given Defendant's pro se status,
the Court will discuss if federal-question or diversity
jurisdiction supports removal.
federal question exists if a civil action arises “under
the Constitution, laws, or treaties of the United
States.” 28 U.S.C. § 1331.
“[F]ederal-question jurisdiction may be based on a
civil action alleging a violation of the Constitution, or
asserting a federal cause of action established by a
congressionally created expressed or implied private remedy
for violations of a federal statute.” Jairath v.
Dyer, 154 F.3d 1280, 1282 (11th Cir. 1998).
“To remove a case as one falling within
federal-question jurisdiction, the federal question
ordinarily must appear on the face of a properly pleaded
complaint; an anticipated or actual federal defense generally
does not qualify a case for removal.” Jefferson
Cnty., Ala. v. Acker, 527 U.S. 423, 430-31 (1999);
Ervast v. Flexible Prods. Co., 346 F.3d 1007, 1013
(11th Cir. 2003) (“[U]nless the face of a
plaintiff's complaint states a federal question, a
Defendant may not remove a case to federal court on [a
federal question] basis, even though a possible defense might
involve a federal question.”); Vaden v. Discover
Bank, 556 U.S. 49, 56 (2009) (federal jurisdiction
cannot be predicated on an actual or anticipated defense or
counterclaim); Holmes Group, Inc. v. Vornado Air
Circulation Sys., Inc., 535 U.S. 826, 832 (2002);
Whitt v. Sherman Int'l Corp., 147 F.3d 1325,
1329 (11th Cir. 1998); Kemp v. Int'l Bus.
Mach. Corp., 109 F.3d 708, 712 (11th Cir.
1997) (“Because a federal question must appear on the
face of the plaintiff's complaint to satisfy the
well-pleaded complaint rule, a defense which presents a
federal question can not create removal jurisdiction. Thus, a
case may not be removed to federal court on the ground of a
federal question defense alone, even if that defense is
valid.”). The removing defendant bears the burden of
proving that a federal question exists. See Friedman v.
New York Life Ins. Co., 410 F.3d 1350, 1353
(11th Cir. 2005); Leonard v. Enterprise Rent a
Car, 279 F.3d 967, 972 (11th Cir. 2002).
complaint asserts no more than claim for dispossession, a
decidedly state-law claim. See Nguyen v. Cade, No.
1:16-CV-01076-TWT-AJB, 2016 WL 3023884, at *3 (N.D.Ga. Apr.
7, 2016) (R&R), adopted at 2016 WL 2998003
(N.D.Ga. May 25, 2016); see also CF Lane, LLC v.
Bynum, No. 1:14-cv-2167-WSD, 2014 WL 3397627, at *2
(N.D.Ga. July 11, 2014) (“Plaintiff's Complaint is
a dispossessory warrant which is based solely on state
law.”); Citimortgage, Inc. v. Dhinoja, 705
F.Supp.2d 1378, 1381 ...