United States District Court, N.D. Georgia, Atlanta Division
FAMILY-PITTSBURGH PHASE I, LP d/b/a HERITAGE STATION FAMILY APARTMENTS, Plaintiff,
TYKERIA HARRISON and All Others, Defendant.
FINAL REPORT AND RECOMMENDATION
F. KING, UNITED STATES MAGISTRATE JUDGE
above-styled case is before the undersigned on Defendant
Tykeria Harrison's application to proceed in forma
pauperis. [Doc. 1]. The court, for the purpose of
remand, GRANTS Defendant's motion. The
court has the responsibility “to review Defendant's
notice of removal to determine whether it meets the
requirements of the statute.” Alabama v.
Baker, 222 F.Supp.2d 1296, 1297-98 (M.D. Ala. 2002).
“If at any time before final judgment it appears that
the district court lacks subject matter jurisdiction, ”
28 U.S.C. § 1447(c) (amended 2011) requires that
“the case shall be remanded.” Upon making this
review, the court finds that it does not and recommends
Family-Pittsburgh Phase I, LP, the owner of the real property
commonly known as 765 McDaniel Street 2415, Atlanta, Georgia
30310, filed a proceeding against tenant holding over in the
Magistrate Court of Fulton County, Georgia, on or about
October 12, 2017, against Defendant Harrison and all others
for failure to pay rent which is now past due. [Doc. 1-1 at
4-5 (“Dispossessory Proceeding”)]. On October 27,
2017, Defendant filed a petition for removal [Doc. 1-1 at 1-3
(“Removal”)] and a notice of removal and federal
stay of eviction [Doc. 1-3 (“Notice”)].
U.S.C. § 1441(a) provides that “any action brought
in a State court of which the district courts of the United
States have original jurisdiction, may be removed by the
defendant or the defendants, to the district court of the
United States for the district and division embracing the
place where such action is pending.” 28 U.S.C. §
1441(a). However, “[i]f at any time before final
judgment it appears that the district court lacks subject
matter jurisdiction, the case shall be remanded.” 28
U.S.C. § 1447(c). See also Arbaugh v. Y & H
Corp., 126 S.Ct. 1235, 1244 (2006) (all federal courts
“have an independent obligation to determine whether
subject-matter jurisdiction exists, even in the absence of a
challenge from any party”). “[I]n removal cases,
the burden is on the party who sought removal to demonstrate
that federal jurisdiction exists.” Kirkland v.
Midland Mortg. Co., 243 F.3d 1277, 1281 n.5
(11thCir. 2001). “[U]ncertainties are
resolved in favor of remand.” Burns v. Windsor Ins.
Co., 31 F.3d 1092, 1095 (11th Cir. 1994).
bases the petition for removal of Plaintiff's
dispossessory proceeding on the court's federal question
jurisdiction. [Removal]. “The presence or absence of
federal-question jurisdiction is governed by the
‘well-pleaded complaint rule, ' which provides that
federal jurisdiction exists only when a federal question is
presented on the face of the plaintiff's properly pleaded
complaint. . . . The rule makes the plaintiff the master of
the claim; he or she may avoid federal jurisdiction by
exclusive reliance on state law.” Caterpillar, Inc.
v. Williams, 107 S.Ct. 2425, 2429 (1987) (citations
omitted). Potential defenses involving the Constitution or
laws of the United States are ignored. Beneficial
Nat'l Bank v. Anderson, 123 S.Ct. 2058, 2062 (2003).
present case, Plaintiff relied exclusively on state law when
it filed a dispossessory action in the Magistrate Court of
Fulton County. [Dispossessory Proceeding]. A dispossessory
action is brought pursuant to O.C.G.A. § 44-7-50.
See Citimortgage, Inc. v. Dhinoja, 705 F.Supp.2d
1378, 1381 (N.D.Ga. 2010); Ikomoni v. Executive
Asset Management, LLC, 309 Ga.App. 81, 84, 709 S.E.2d
282, 286 (March 16, 2011) (“‘The
exclusive method whereby a landlord may evict a
tenant is through a properly instituted dispossessory action
filed pursuant to OCGA § 44-7-50 et
seq.'”) (citation omitted) (emphasis added);
see also Fennelly v. Lyons, 333 Ga.App. 96, 100, 775
S.E.2d 587, 592 (2015) (same). Defendant alleges that removal
is proper on the basis of federal question jurisdiction and,
in the petition and notice, claims that Plaintiff violated
the Fair Debt Collection Practices Act, 15 U.S.C. §
1692, and the United States Constitution. [Removal; Notice].
However, no federal question is presented on the face of
Plaintiff's well-pleaded complaint. [Dispossessory
Proceeding]. There is also no evidence which warrants the
application of an exception to the well-pleaded complaint
rule, such as the doctrine of complete preemption.
Caterpillar, 107 S.Ct. at 2430.
Defendant does not assert and there is no evidence that
Defendant could establish jurisdiction based on diversity. To
do so, Defendant would have to show that there is complete
diversity of citizenship between Defendant and Plaintiff and
that the amount in controversy exceeds $75, 000.00.
See 28 U.S.C. § 1332(a)(1). There is no
evidence of diversity of citizenship. As to damages,
Plaintiff's dispossessory proceeding seeks the ejectment
of Defendant from the property due to failure to pay past due
rent of $773.00 and rent accruing to the date of judgment or
vacancy at a rate of $733.00 per month, along with late fees
and costs of the action of less than $1, 000.00.
[Dispossessory Proceeding]. Again, the court looks to
Plaintiff's claim to determine whether removal
jurisdiction is appropriate. See Burns, 31 F.3d at
1095; Novastar Mortg., Inc. v. Bennett, 173
F.Supp.2d 1358, 1361 (N.D.Ga. 2001). The face of the
complaint shows that the amount in controversy does not
exceed the $75, 000.00 required for the court to have
diversity jurisdiction as a basis for removal.
these reasons, the court finds that federal jurisdiction does
not exist and that this action should be remanded pursuant to
28 U.S.C. § 1447(c).
also apparently seeks a stay of the dispossessory proceedings
and/or eviction. [Notice]. Defendant is not entitled to a
stay of the dispossessory proceedings. See American Homes
4 Rent Properties Eight, LLC v. Dynott, 2015 WL 5920130,
at *2 & n.4 (N.D.Ga. October 8, 2015) (denying the
defendant's motion to stay state court dispossessory
proceedings as moot because court lacked subject-matter
jurisdiction and noting that, “[e]ven if subject-matter
jurisdiction existed, the Court [would be] unable to grant
Defendant the relief he seeks - a stay of state court
eviction proceedings - because a federal court is prohibited
under the Anti-Injunction Act . . . from enjoining a state
court eviction proceeding”); U.S. Bank National
Ass'n v. Sanders, 2015 WL 1568803, at *3 (N.D.Ga.
April 7, 2015) (“Because this action is required to be
remanded, Defendant's . . . Motion to Stay . . . [should
be] denied.”); and see CF Lane, LLC v.
Stephens, 2014 WL 1572472, at *2 (N.D.Ga. April 17,
2014) (“this Court cannot enjoin a state court action
because Defendant failed to demonstrate any lawful basis for
removal of this action to this court, IT IS
RECOMMENDED that this action be
REMANDED to the Magistrate Court of Fulton
County where it was last pending.
Clerk is DIRECTED to terminate the reference