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Federal National Mortgage Association v. Deoraj

United States District Court, S.D. Georgia, Augusta Division

November 6, 2017

FEDERAL NATIONAL MORTGAGE, ASSOCIATION, Plaintiff,
v.
DORIS E DEORAJ and HEMRAJ DEORAJ, Defendants.

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          BEJAN K. EFPS UNITED STATES MAGISTRATE JUDGE

         Doris E Deoraj and Hemraj Deoraj, proceeding pro se, seek to remove to this Court a dispossessory action filed by Plaintiff in the Magistrate Court of Richmond County, Georgia. For the reasons set forth below, the Court finds it lacks subject matter jurisdiction and REPORTS and RECOMMENDS the motion to proceed in forma pauperis (“IFP”) and the motion to strike be DENIED as MOOT, (doc. nos. 2, 3), the case be REMANDED to the Magistrate Court of Richmond County, and the above-captioned civil action be CLOSED in this Court.[1]

         I. BACKGROUND

         Plaintiff filed a dispossessory action in the Magistrate Court of Richmond County, Civil Action File Number 904689, against Defendants and “All others: *Bro T. Hesed-El*, ” and the case was scheduled for trial on September 13, 2017. (Doc. no. 1, p. 6.) The trial notice warned failing to appear could result in judgment against Defendants. (Id.) On September 14, 2017, the Magistrate Court of Richmond County entered a Judgment and Writ of Possession against Defendants and “All Others Including Bro T. Hesed-El.”[2] (Id. at 7.)

         On November 1, 2017, the Clerk of Court accepted for filing a Notice of Removal, motion for leave to proceed IFP, and motion to strike, and opened this case on the Court's docket even though none of the papers were signed by Doris E Deoraj or Hemraj Deoraj. The papers were accepted and filed without notation of deficiency, despite the facial non-compliance with Local Rule 11.1 and Federal Rule of Civil Procedure 11(a), which require at least one attorney of record or the signature of pro se litigants on every filing. According to the Notice of Removal, the dispossessory action is removable to federal court pursuant various provisions of the United States Code “such as U.S. Code §§ 1331, 1332, 1441, and 1446, ” as well as “28 U.S.C. §§ 1441, 1443, and 1446.” (Doc. no. 1, p. 1.)

         II. DISCUSSION

         Generally, a defendant may remove an action from state court when the federal court would possess original jurisdiction over the subject matter. 28 U.S.C. § 1441(a). A removing defendant has the burden to establish federal jurisdiction. See Diaz v. Sheppard, 85 F.3d 1502, 1505 (11th Cir. 1996). “Subject matter jurisdiction in a federal court may be based upon federal question jurisdiction or diversity jurisdiction.” Walker v. Sun Trust Bank, 363 F. App'x 11, 15 (11th Cir. 2010) (citing 28 U.S.C. §§ 1331, 1332). “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.” Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987). That is, “[o]nly state-court actions that originally could have been filed in federal court may be removed to federal court by the defendant.” Id. (footnote omitted). Accordingly, a counterclaim based on a federal cause of action or a federal defense alone is not a basis for removal jurisdiction. Vaden v. Discover Bank, 556 U.S. 49, 59-61 (2009).

         Plaintiff filed its action in the Magistrate Court of Richmond County as a dispossessory action which is based only on state law. Because the Notice of Removal does not, as would a proper notice of removal, contain a copy of the complaint, the Court infers based on the Notice of Trial and Judgment which are attached, the complaint filed in Magistrate Court presents no federal question. That Defendants purport to raise a federal defense to a state dispossessory action does not confer federal subject matter jurisdiction. 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). This Court and others within the Eleventh Circuit have rejected similar attempts to remove a dispossessory action based only on state law. See American Homes 4 Rent Properties Eight, LLC ISAOA v. Green, CV 115-068, 2015 WL 5043222, at *2 (S.D. Ga. Aug. 25, 2015); Citibank, N.A. v. Johnson, No. 1:14-CV-1784-WSD, 2014 WL 5019924, at *2-3 (N.D.Ga. Oct. 7, 2014).

         Although Defendants do not plausibly raise diversity of citizenship as a basis for federal jurisdiction, for the sake of completeness, the Court finds no such diversity jurisdiction exists. Federal courts have jurisdiction over “all civil actions where the matter in controversy exceeds the sum or value of $75, 000, ” and is between “citizens of different States.” 28 U.S.C. § 1332(a)(1). Defendants fail to plead diversity of citizenship - indeed there is no information on the citizenship of Plaintiff or Defendants - and fail to show the amount-in-controversy exceeds the $75, 000 threshold.[3] As succinctly explained by another court:

[A] dispossessory proceeding under Georgia law is not an ownership dispute, but rather only a dispute over 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.

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. 9, 2008). Defendants have not established diversity of citizenship or that the value of the controversy exceeds $75, 000.

         In sum, the Court concludes Defendants have not met their burden of establishing federal jurisdiction, and the case should be remanded. See 28 U.S.C. § 1447(c) (“If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded.”)

         Finally, the Court reminds Defendants that because they are proceeding pro se, they must sign every document filed with the Court on their behalf. See Fed.R.Civ.P. 11(a). Under 28 U.S.C. § 1654, “In all courts of the United States the parties may plead and conduct their own cases personally or by counsel as, by the rules of such courts, respectively, are permitted to manage and conduct causes therein.” “The existence of a power of attorney does not authorize a nonlawyer to undertake to conduct legal proceedings on behalf of a pro se litigant where the law otherwise requires that such proceedings be conducted by a licensed attorney.” Stewart v. Moses, No. 7:14-CV-34 HL, 2014 WL 2986730, at *1 (M.D. Ga. July 2, 2014). As neither Taqi El Agabey Management or its Trust Document Carrier and/or Authorized Representative are authorized to practice law in this Court, they may not file or sign papers on behalf of Doris E Deoraj or Hemraj Deoraj in this Court. (See doc. no. 1, pp. 4, 8.)

         III. ...


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