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 Alan J.
Baverman's Final Report and Recommendation 
(“R&R”), which recommends remanding this
dispossessory action to the Magistrate Court of Fulton
February 8, 2017, Plaintiff Heritage Select LLC
(“Plaintiff”) initiated a dispossessory
proceeding against Defendant Calvin R. White
(“Defendant”), in the Magistrate Court of Fulton
County, Georgia. The Complaint seeks possession of premises
currently occupied by Defendant following a foreclosure sale
of the property.
February 22, 2017, Defendant, proceeding pro se,
removed the Fulton County Action to this Court by filing his
Notice of Removal . Defendant appears to assert that there
is federal subject matter jurisdiction because there is a
question of federal law in this action. Defendant
“complaints 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, ” and 42 U.S.C.
§ 1983. (Notice of Removal at 1-2).
September 7, 2017, Magistrate Judge Baverman reviewed
Defendant's Notice of Removal and considered 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 (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), 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. 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
the Court lacks both federal question and diversity
jurisdiction, this action is required to be remanded to the
Magistrate Court of Fulton County. See 28 U.S.C.
§ 1447(c) (“If at any time before final judgment
it appears that the district ...