United States District Court, N.D. Georgia, Atlanta Division
MID AMERICA APARTMENT COMMUNITIES AAF POST RIVERSIDE, Plaintiff,
SUSAN DOUGLAS, Defendant.
MAGISTRATE JUDGE'S FINAL REPORT, RECOMMENDATION,
RUSSELL G. VINEYARD, UNITED STATES MAGISTRATE JUDGE
matter is before the Court on defendant Susan Douglas'
(“Douglas”) affidavit and application to proceed
in forma pauperis, [Doc. 1],  and notice of
removal and federal stay of dispossessory action, [Docs. 1-1
& 1-2]. From the documents before the Court, it appears
that plaintiff Mid America Apartment Communities AAF Post
Riverside (“plaintiff”) initially filed
this action in the Magistrate Court of Fulton County,
Georgia, against Douglas and all others, seeking a writ of
possession, among other forms of relief. See [Doc.
1-1 at 3]. Douglas, proceeding without counsel, seeks to
remove this dispossessory action to federal court and to
proceed in forma pauperis. [Docs. 1, 1-1, 1-2, &
1-3]. For the reasons that follow, it is
RECOMMENDED that this action be
REMANDED to the Magistrate Court of Fulton
County. For the purpose of remand only, Douglas' request
to proceed in forma pauperis, [Doc. 1], is
action brought in a State court of which the district courts
of the United States have original jurisdiction, may be
removed by the defendant . . . to the district court of the
United States for the district and division embracing the
place where such action is pending.'” PHH
Mortg. Corp. v. Diamond, No. 1:06-CV-0673WSD, 2006 WL
839405, at *1 (N.D.Ga. Mar. 29, 2006) (alteration in
original) (quoting 28 U.S.C. § 1441(a)). “A
defendant . . . desiring to remove any civil action . . .
from a State court shall file in the district court of the
United States for the district and division within which such
action is pending a notice of removal signed pursuant to Rule
11 of the Federal Rules of Civil Procedure and containing a
short and plain statement of the grounds for removal,
together with a copy of all process, pleadings, and orders
served upon such defendant . . . in such action.” 28
U.S.C. § 1446(a). When a notice of removal is filed,
however, the Court is obligated to consider, sua
sponte, whether it has jurisdiction over the action.
Bank of N.Y. v. Wilson, Civil Action File No.
1:08-CV-332-TWT, 2008 WL 544741, at *1 (N.D.Ga. Feb. 25,
2008), adopted at *1. “If a court does not have
original jurisdiction, a district court may sua
sponte remand a case on the basis of lack of subject
matter jurisdiction.” Citibank, N.A. v. Gumbs,
Civil Action No. 1:07-CV-2476-TWT, 2007 WL 3491744, at *3
(N.D.Ga. Nov. 6, 2007), adopted at *1; see also 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.”).
state-court actions that originally could have been filed in
federal court may be removed to federal court by the
defendant.” Caterpillar Inc. v. Williams, 482
U.S. 386, 392 (1987) (footnote omitted). Federal courts have
original jurisdiction over an action only if: “(1) the
parties are diverse and meet the statutory requirements for
diversity jurisdiction; (2) the face of the complaint raises
a federal question; or (3) the subject matter of a putative
state-law claim has been totally subsumed by federal law such
that the state-law claims are completely preempted.”
Stegeman v. Wachovia Bank, Nat'l Ass'n, No.
1:06-CV-0247-WSD, 2006 WL 870420, at *1 (N.D.Ga. Apr. 4,
2006) (citing Lontz v. Tharp, 413 F.3d 435, 439-40
(4th Cir. 2005)). “Determination of whether a claim
arises under federal law ‘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.'” Wilson, 2008 WL 544741, at *1
(quoting Caterpillar, 482 U.S. at 392). Under the
well-pleaded complaint rule, the plaintiff is “the
master of the claim; [it] may avoid federal jurisdiction by
exclusive reliance on state law.” Caterpillar,
482 U.S. at 392 (footnote omitted); Wilson, 2008 WL
544741, at *1 (citations omitted). “In determining the
presence of a federal question, this Court looks to the
substance, not the labels, of the plaintiff's claims as
contained in the factual allegations in the complaint.”
Citimortgage, Inc. v. Dhinoja, 705 F.Supp.2d 1378,
1381 (N.D.Ga. 2010) (citation omitted). The burden is on
Douglas as the removing party to show that the federal court
has jurisdiction. Etowah Env't Grp., LLC v.
Walsh, Civil Action No. 2:10-CV-180-RWS, 2011 WL
1060600, at *3 (N.D.Ga. Mar. 21, 2011) (citing Friedman
v. N.Y. Life Ins. Co., 410 F.3d 1350, 1353 (11th Cir.
attempt to remove this action is deficient in several
respects. First, it appears from the documents filed with the
notice of removal that plaintiff brought a dispossessory
action in the Magistrate Court of Fulton County, Georgia, and
there is no indication from the documents submitted by
Douglas for this Court's consideration that plaintiff has
raised any federal claim in the dispossessory action.
However, Douglas appears to allege that removal is proper on
the basis of federal question jurisdiction. See
[Doc. 1-1 at 1; Doc. 1-2 at 1, 3]. In particular, Douglas
asserts that plaintiff violated “12 USC 2605(A),  the
Fourteenth Amendment of the U.S. Constitution, ” and
“FDCP Regulations.” [Doc. 1-1 at 1; Doc. 1-2 at
1, 3]. Douglas' reliance on these laws
appears to be a defense to the underlying state-court
dispossessory action, but “[a] defense that raises a
federal question is inadequate to confer federal
jurisdiction.” Merrell Dow Pharm. v. Thompson,
478 U.S. 804, 808 (1986) (citation omitted); see also
Gumbs, 2007 WL 3491744, at *4; Wilson, 2008 WL
544741, at *2 (quoting Caterpillar, 482 U.S. at
393). Indeed, “[i]f a federal question is not presented
on the face of the complaint, it is no substitute that the
defendant is almost certain to raise a federal
defense.” Dhinoja, 705 F.Supp.2d at 1381
(citation and internal mark omitted). Alternatively, if
Douglas relies on federal law in support of a counterclaim
rather than a defense, it is well-settled that a counterclaim
cannot serve as the basis for federal question jurisdiction.
See Holmes Grp., Inc. v. Vornado Air Circulation Sys.,
Inc., 535 U.S. 826, 831 (2002) (citations omitted).
Douglas' allegations are thus insufficient to establish
that the Court has subject matter jurisdiction in this case.
See Diamond, 2006 WL 839405, at *2.
short, plaintiff cannot be subjected to federal jurisdiction
in this action since the record before the Court indicates
that the dispossessory action it filed in the Magistrate
Court of Fulton County, Georgia, is exclusively a matter of
state law. Caterpillar, 482 U.S. at 392;
Wilson, 2008 WL 544741, at *1. Accordingly, the
Court does not have federal question jurisdiction over this
action and is, therefore, without subject matter
jurisdiction. See Dhinoja, 705 F.Supp.2d at 1381
(remanding case where “the dispossessory claim that
forms the basis of this action is exclusively a matter of
state law”); see also Finvest Roxboro, LLC v.
Bozick, Civil Action File No. 1:13-CV-3678-TWT, 2013 WL
6795232, at *1-3 (N.D.Ga. Dec. 20, 2013), adopted at *1;
HSBC Mortg. Servs., Inc. v. Williams, Civil Action
No. 1:07-CV-2863-RWS, 2007 WL 4303725, at *2 (N.D.Ga. Dec.
10, 2007) (granting remand where no federal question is
present on the face of plaintiff's complaint and the
requirements for diversity jurisdiction are not satisfied in
foregoing reasons, it is RECOMMENDED that
this case be REMANDED to the Magistrate
Court of Fulton County. For the purpose of remand only,
Douglas' request to proceed in forma pauperis,
[Doc. 1], is GRANTED.
Clerk is DIRECTED to terminate this
IS SO ORDERED AND RECOMMENDED.
 The document and page numbers in
citations to the record refer to the document and page
numbers listed in the Adobe file reader linked to this
Court's electronic filing database, CM/ECF.
 Douglas does not assert that the
parties are diverse, see generally [Docs. 1-1, 1-2,
& 1-3], and even if she had, diversity jurisdiction would
be improper. “The principal federal statute governing
diversity jurisdiction, 28 U.S.C. § 1332, gives federal
district courts original jurisdiction of all civil actions
‘between . . . citizens of different States' where
the amount in controversy exceeds $75, 000.”
Lincoln Prop. Co. v. Roche, 546 U.S. 81, 89 (2005)
(alteration in original) (footnote omitted) (quoting 28
U.S.C. § 1332 (a)(1)). “Under [28 U.S.C.] §
1332(a), an in-state plaintiff may invoke diversity
jurisdiction in a federal court that sits in the state where
the plaintiff resides, ” however, “[t]he removal
statute does not provide an in-state defendant the same
flexibility in removing cases.” Fed. Nat'l
Mortg. Ass'n v. Avendano, Civil Action File No.
1:10-CV-3391-TWT-AJB, 2010 WL 4963027, at *3 (N.D.Ga. Oct.
28, 2010), adopted by 2010 WL 4963024, at *1 (N.D.Ga. Nov.
30, 2010) (citing Lincoln Prop. Co., 546 U.S. at
89-90). Indeed, “[28 U.S.C.] § 1441(b) bars
removal on the basis of diversity if the defendant is a
citizen of the [s]tate in which the action is brought.”
Id. (citations and internal marks omitted).
Therefore, even if Douglas had properly asserted diversity
jurisdiction as a basis for removal, “§ 1441(b)
does not permit removal on diversity grounds to the Northern
District of Georgia because [Douglas is a] citizen of the
[s]tate of Georgia . . . .” Avendano, 2010 WL
4963027, at *4 (citations omitted); see also Bregman v.
Alderman, 955 F.2d 660, 663 (11th Cir. 1992) (per
curiam) (citation omitted); [Doc. 1 at 5; Doc. 1-1 at 2; Doc.
1-2 at 2-3; Doc. 1-3 at 1].
 The Fair Debt Collection Practices Act
(“FDCPA”), codified at 15 U.S.C. § 1692
et seq., applies only to “debt collectors,
” which are defined by the act as “any person . .
. who regularly collects or attempts to collect, directly or
indirectly, debts owed or due . . . another.” 15 U.S.C.
§ 1692a(6). Plaintiff is alleged only to have brought a
dispossessory action, however, not to have engaged in any
debt collection activity governed by the FDCPA. See
generally [Docs. 1-1 & 1-2]. Section 2605 of the
Real Estate Settlement Procedures Act, codified at 12 U.S.C.
§ 2601 et. seq., “governs the
‘servicing of mortgage loans and administration of
escrow accounts.'” Hudgins v. Seterus,
Inc., 192 F.Supp.3d 1343, 1347 (S.D. Fla. 2016). Douglas
alleges that plaintiff violated § 2605(a) of RESPA,
see [Doc. 1-1 at 1; Doc. 1-2 at 3], which
“requires lenders to ‘disclose to each person who
applies for the loan, at the time of application for the
loan, whether the servicing of the loan may be assigned,
sold, or transferred to any other person at any time while
the loan is outstanding, '” Owens-Benniefield
v. Nationstar Mortg. LLC, Case No.: 8:17-cv-540-T-33TGW,
2017 WL 3149429, at *4 (M.D. Fla. July 25, 2017) (quoting 12
U.S.C. § 2605(a)). Douglas has not ...