United States District Court, N.D. Georgia, Atlanta Division
WILMINGTON SAVINGS FUND SOCIETY, FSB, d/b/a Christiana Trust, Plaintiff,
DOUGLAS OGUMBO, et al., Defendants.
OPINION AND ORDER
WILLIAM S. DUFFEY, JR. UNITED STATES DISTRICT JUDGE
matter is before the Court on Defendants Douglas Ogumbo and
Marlene I. Spence's (together, “Defendants”)
“Answer to the Order and Final Report” , which
the Court construes as their Objections to Magistrate Judge
Janet F. King's Final Report and Recommendation 
(“R&R”). The Magistrate Judge recommends that
this action be remanded to the Magistrate Court of Newton
August 28, 2017, Plaintiff Wilmington Savings Fund Society,
FSB, doing business as Christiana Trust, initiated a
dispossessory proceeding against Defendants in the Magistrate
Court of Newton County, Georgia. The Complaint alleges that
Defendants are tenants at sufferance following foreclosure,
and seeks possession of the premises currently occupied by
September 14, 2017, Defendants, proceeding pro se,
removed the Newton County Action to this Court by filing a
Notice of Removal and an application to proceed in forma
pauperis (“IFP”) . Defendants assert that
there is federal subject matter jurisdiction because there is
a question of federal law in this action. Defendants claim
that Plaintiff violated the Fair Debt Collection Practices
Act and the Uniform Commercial Code. (Notice of Removal at
2-4). Defendants also appear to argue that the Court has
subject matter jurisdiction based on diversity of
citizenship. (Id. at 4).
September 19, 2017, Magistrate Judge King granted
Defendants' application to proceed IFP and considered,
sua sponte, whether the Court has subject matter
jurisdiction over this case. (R&R ). 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 Newton 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. The Magistrate Judge also
found that Defendants 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.
October 3, 2017, Defendants filed their Objections to the
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).
their Objections, Defendants assert that Plaintiff violated
18 U.S.C. §§ 241, 242, the Fair Debt Collection
Practices Act, and various Georgia laws by foreclosing on
their home and initiating the dispossessory proceeding.
(See Objs. at 7-9). Plaintiff's Complaint is a
dispossessory action which is based solely on state law.
See O.C.G.A. § 44-7-50; Carter v. Butts
Cty., 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”). No federal question is
presented on the face of Plaintiff's Complaint. That
Defendants assert defenses or counterclaims based on federal
law cannot confer subject-matter jurisdiction over this
action. See Beneficial Nat'l Bank v. Anderson,
539 U.S. 1, 6 (2003); Holmes Grp., Inc. v. Vornado Air
Circulation Sys., Inc., 535 U.S. 826, 830-32
(2002); Caterpiller Inc. v. Williams, 482 U.S. 386,
392-93 (1987) (“The presence of a federal defense does
not make the case removable . . . .”). Defendants fail
to show that the Court has federal question jurisdiction over
this action and their objection is overruled.
record does not show that Plaintiff and Defendants are
citizens of different states, and even if they are, there is
no evidence to support that the amount in controversy exceeds
the statutory threshold of $75, 000. See 28 U.S.C.
§ 1332(a); 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
controversy requirement.”). To the extent Defendants
“assert a counterclaim against Plaintiff for wrongful
dispossessory action, and damages in the amount of $427,
000.00” (Obj. at 4), a “counterclaim may not be
used to calculate the jurisdictional amount in controversy
when a defendant removes a case from a state court.”
First Guaranty Bank & Trust Co. v. Reeves, 86
F.Supp.2d 1147, 1150 (M.D. Fla. 2000); Citimortgage, Inc.
v. Dhinoja, 705 F.2d 1378, 1382 (N.D.Ga. 2010); cf.
Anderson, 539 U.S. at 6. Defendants fail to show that
the Court has diversity jurisdiction over this action and
their objection is overruled.
the Court lacks both federal question and diversity
jurisdiction, this action is required to be remanded to the
Magistrate Court of Newton County. See 28 U.S.C.
§ 1447(c) (“If at any time before final judgment
it appears that the district ...