United States District Court, N.D. Georgia, Atlanta Division
TBR STRATFORD 1031 WA LLC, doing business as The Stratford Apartments, Plaintiff,
MICHAELA GREEN, Defendant.
OPINION AND ORDER
WILLIAM S. DUFFEY, JR. UNITED STATES DISTRICT JUDGE
matter is before the Court on Magistrate Judge Alan J.
Baverman's Final Report and Recommendation 
(“R&R”), which recommends remanding this
dispossessory action to the Magistrate Court of Fulton
15, 2017, Plaintiff TBR Stratford 1031 WA LLC, doing business
as The Stratford Apartments (“Plaintiff”),
initiated a dispossessory proceeding against Defendant
Michaela Greene (“Defendant”) in the Magistrate
Court of Fulton County, Georgia. The Complaint seeks
possession of premises currently occupied by Defendant and
seeks past due rent, fees and costs.
19, 2017, Defendant, proceeding pro se, removed the
Fulton County Action to this Court by filing her Notice of
Removal and an application to proceed in forma
pauperis (“IFP Application”). Defendant
appears to assert that there is federal subject matter
jurisdiction because there is a question of federal law in
this action. Defendant “complains of various systematic
and premeditated deprivations of fundamental [r]ights
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).
August 4, 2017, Magistrate Judge Baverman 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 Fulton 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.
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
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), cert. denied, 464
U.S. 1050 (1984).
does not object to the Magistrate Judge's finding that
Plaintiff's Complaint does not present a federal question
and that the parties are not diverse.
Court does not find any plain error in these conclusions. 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 the
assertions 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). The
record also does not show that Plaintiff and Defendant are
citizens of different states, or that the amount in
controversy exceeds the statutory threshold of $75, 000.
See 28 U.S.C. § 1332(a); Carter v. Butts
Cty., Ga., et al.,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. ...