United States District Court, N.D. Georgia, Atlanta Division
CUMBERLAND CROSSING LLC, doing business as Cumberland Crossing Apartments, Plaintiff,
MARSHA ROBINSON, Defendant.
OPINION AND ORDER
WILLIAM S. DUFFEY, JR. UNITED STATES DISTRICT JUDGE
matter is before the Court on Defendant Marsha Robinson's
(“Defendant”) Objections  to Magistrate Judge
Russell G. Vineyard's Report and Recommendation 
(“R&R”). The Magistrate Judge recommends that
this action be remanded to the Magistrate Court of Cobb
19, 2017, Plaintiff Cumberland Crossing LLC, doing business
as Cumberland Crossing Apartments (“Plaintiff”),
initiated a dispossessory proceeding against Defendant in the
Magistrate Court of Cobb County, Georgia.The Complaint
seeks possession of premises currently occupied by Defendant.
August 10, 2017, Defendant, proceeding pro se,
removed the Cobb County Action to this Court by filing a
Petition for Removal and an application to proceed in
forma pauperis (“IFP”) . Defendant
appears to assert that there is federal subject matter
jurisdiction because there is a question of federal law in
this action. Defendant claims that Plaintiff violated
“15 USC 1692 [sic]” and Rule 60 of the Federal
Rules of Civil Procedure, “having a legal duty to abort
eviction pursuant to O.C.G.A. § 51-1-6, ” and
violated the Due Process “Clauses” of the
Fourteenth Amendment. (Pet. for Removal  at 2).
August 14, 2017, Magistrate Judge Vineyard granted
Defendant's IFP Application. (). The Magistrate Judge
then considered, sua sponte, whether there is
federal subject matter jurisdiction over the action removed.
The Magistrate Judge found that federal subject matter
jurisdiction was not present and recommended that the Court
remand the case to the Magistrate Court of Cobb County. The
Magistrate Judge found that the Complaint filed in Magistrate
Court 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. Although not
alleged in the Notice of Removal, the Magistrate Judge also
considered whether the Court has subject-matter jurisdiction
based on diversity of citizenship. The Magistrate Judge found
that Defendant failed to allege any facts to show that the
parties' citizenship is completely diverse, or that the
amount in controversy exceeds $75, 000. The Magistrate Judge
concluded that the Court does not have diversity jurisdiction
over this matter and that this case is required to be
remanded to the state court.
August 29, 2017, Defendant filed her Objections to the
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
Objections, Defendant asserts that Plaintiff “did
violate 28 USC 1367 [sic]” and “28 USC 1446(D)
[sic]” “and having a legal duty to abort eviction
pursuant to O.C.G.A. 51-1-6 [sic].” (Objs. at 2-3).
Plaintiff's Complaint is a dispossessory action which is
based solely on state law. See O.C.G.A. §
44-7-50; Steed v. Fed. Nat'l Mortg. Corp., 689
S.E.2d 843 (Ga.Ct.App. 2009) (when former owner of real
property remains in possession after foreclosure sale, she
becomes “tenant at sufferace, ” and thus
landlord-tenant relationship exists and dispossessory
procedure in O.C.G.A. § 44-7-50 applies). No federal
question is presented on the face of Plaintiff's
Complaint. That Defendant asserts defenses or counterclaims
based on federal law cannot confer federal subject-matter
jurisdiction over this action. See Beneficial Nat'l
Bank v. Anderson, 539 U.S. 1, 6 (2003); Holmes Grp.,
Inc. v. Vornado Air Circulation Sys., Inc., 535 U.S.
826, 830-32 (2002); Caterpiller Inc. v. Williams,
482 U.S. 386, 392-93 (1987) (“The presence of a federal
defense does not make the case removable . . . .”).
Defendant fails to show that the Court has federal question
jurisdiction over this action and her objection is overruled.
did not object to the Magistrate Judge's conclusion that
the Court lacks diversity jurisdiction over this action. The
record does not show that Plaintiff and Defendant are
citizens of different states, and, even if they are, there is
no evidence to support that the amount in controversy exceeds
the statutory threshold of $75, 000. See 28 U.S.C.
§ 1332(a); Carter v. Butts Cty., 821 F.3d 1310,
1322 (11th Cir. 2006) (quoting Steed v. Fed. Nat'l
Mortg. Corp., 689 S.E.2d 843, 848 (Ga.Ct.App. 2009))
(“[U]nder Georgia law, ‘[w]here former owners of
real property remain in possession after a foreclosure sale,
they become tenants at sufferance, '” and are thus
subject to a dispossessory proceeding under O.C.G.A. §
44-7-50, which “provide[s] the exclusive method by
which a landlord may evict the tenant”); 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 Court lacks both federal question and diversity
jurisdiction, this action is required to be remanded to the
Magistrate Court of Cobb County. See 28 U.S.C.
§ 1447(c) (“If at any time before final judgment
it appears that the district ...