United States District Court, N.D. Georgia, Atlanta Division
ORDER AND FINAL REPORT AND RECOMMENDATION
K. LARKINS III United States Magistrate Judge
matter is before the Court on Defendant Taviar Jones's
application for leave to proceed in forma pauperis
(“IFP”) on his notice of removal of a state
dispossessory action to this Court. [Doc. 1.] After
considering Jones's application, I find that he meets the
requirements for IFP status and GRANT his
request to proceed IFP pursuant to 28 U.S.C. § 1915(a).
Nevertheless, this Court does not have subject matter
jurisdiction over the removal action. I therefore
RECOMMEND that this case be
REMANDED to the Magistrate Court of Fulton
underlying dispossessory action, Plaintiff Main Street
Renewal, LLC (“Main Street”) alleged that Jones
failed to pay the rent for a leased premises located in
Fulton County. [Doc. 1-1 at 10.] Main Street demanded
possession of the premises, $3, 330.65 in past due rent,
current rent accruing at a rate of $1745.00 per month, and
$200.00 in late fees, attorney fees of $513.00, and insurance
fees of $34.34. [Id.]
argues in his notice of removal that this Court has subject
matter jurisdiction over the dispossessory action under 28
U.S.C. § 1443, which provides for the removal of certain
civil rights cases to federal court. [Doc. 1-1 at 1-6.] He
also appears to suggest that there is federal question and
diversity jurisdiction over the removal action. [See
id.; see also Doc. 1-3 at 1 (civil cover
Jones does not expressly assert that there is a federal
question in the removal action, it is clear to the Court that
there is not. Generally, “any civil 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 defendants, to the district court of the United
States.” 28 U.S.C. § 1441(a). Here, however, the
underlying case is a state dispossessory action containing no
federal claim. [Doc. 1-1 at 10.] Indeed, jurisdiction over
the initiation and trial of a dispossessory action filed in
Georgia is entirely in the state court system. See
O.C.G.A. § 44-7-50, et seq. Thus, removal based
on federal question jurisdiction under 28 U.S.C. § 1331
is improper. See Beneficial Nat'l Bank v.
Anderson, 539 U.S. 1, 6 (2003) (“As a general
rule, absent diversity jurisdiction, a case will not be
removable if the complaint does not affirmatively allege a
federal claim.”); see also U.S. Bank Nat'l
Ass'n v. Sanders, No. 1:13-cv-357-WSD, 2015 WL
1568803, *3 (N.D.Ga. Apr. 7, 2015). Even if Jones wishes to
assert defenses based on alleged violations of his
constitutional rights [see Doc. 1-1 at 1-6], this
Court may look only to the complaint itself to determine
whether there is federal question jurisdiction over the
action. See Anderson, 529 U.S. at 6.
similarly clear that there is no diversity jurisdiction under
28 U.S.C. § 1332(a). It appears that both Main Street
and Jones are Georgia citizens [Doc. 1-3 at 1]; since they
are therefore not diverse for jurisdictional purposes, he
cannot remove the action to federal court. 28 U.S.C. §
1441(b)(2); see also Rolling Greens MHP, L.P. v. Comcast
SCH Holdings L.L.C., 374 F.3d 1020, 1022 (11th Cir.
2004) (removing party bears the burden of establishing that
the parties are diverse). Additionally, the dispossessory
claim against him cannot be reduced to a monetary sum for
purposes of satisfying the amount-in-controversy requirement
in § 1332(a).
28 U.S.C. § 1332(a); Citimortgage, Inc. v.
Dhinoja, 705 F.Supp.2d 1378, 1382 (N.D.Ga. 2010)
(holding that only the plaintiff's claim may satisfy the
amount-in-controversy requirement, and an action seeking
ejectment cannot be reduced to a monetary sum for purposes of
determining the amount in controversy); Novastar Mortg.,
Inc. v. Bennett, 173 F.Supp.2d 1358, 1361-62 (N.D.Ga.
2001), aff'd 35 F. App'x 858 (11th Cir.
2002) (same). Further, the demand for rent and other costs
was well below $75, 000. Thus, the amount in controversy
requirement in § 1332(a) is not met in this case.
See 28 U.S.C. § 1332(a).
Jones's argument that this Court has jurisdiction over
his dispossessory case under the provisions in § 1443
for the removal of civil rights cases, § 1443(1)
provides that a defendant may remove a case initiated in
state court if he is “denied or cannot enforce in the
courts of such State a right under any law providing for the
equal civil rights of the United States, or of all persons
within the jurisdiction thereof.” 28 U.S.C. §
1443(1). A notice of removal under § 1443(1) must show
that the right on which the defendant relies arises under
federal law “providing for specific civil rights stated
in terms of racial equality, ” and the defendant has
been denied or cannot enforce that right in state court.
Alabama v. Conley, 245 F.3d 1292, 1295 (11th Cir.
argues generally that his various constitutional rights have
been violated, that Main Street does not have standing to
pursue the dispossessory action in state court, and that
Jones has not yet had an opportunity to present the facts of
his case to the state court. [Doc. 1-1 at 1-6.] These
assertions cannot support a claim for removal because §
1443(1) only applies to “specific civil rights stated
in terms of racial equality.” See Conley, 245
F.3d at 1295; see also Id. at 1295-96 (“[A]
defendant's right to a fair trial and equal protection of
the laws . . . do[es] not arise from legislation providing
for specific civil rights in terms of racial equality[.]
Therefore, to the extent [that petitioner] relies upon broad
assertions under the Equal Protection Clause . . ., those
rights are insufficient to support a valid claim for removal
under § 1443(1).” (quotation omitted)).
also cannot proceed under § 1443(2), which provides a
right of removal “[f]or any act under color of
authority derived from any law providing for equal rights, or
for refusing to do any act on the ground that it would be
inconsistent with such law.” 28 U.S.C. § 1443(2).
The Supreme Court has held that the first clause in §
1443(2)-referring to “any act under color of
authority”-confers the right to remove only upon
“federal officers or agents and those authorized to act
with them or for them in affirmatively executing duties under
any federal law providing for equal civil rights.”
City of Greenwood v. Peacock, 384 U.S. 808, 824
(1966). The second clause-referring to the refusal “to
do any act on the ground that it would be inconsistent with
such law”-allows removal by state officers.
Id. at 824 n.22. Jones has neither alleged nor shown
that he is a federal or state officer or is working for one.
See id at 824 & n.22.
the Court finds that Jones meets the financial requirements
for IFP status and GRANTS his IFP
application. [Doc. 1.] Because it is clear that this Court
lacks subject matter jurisdiction over the removal action, it
is further RECOMMENDED ...