United States District Court, N.D. Georgia, Atlanta Division
OPINION AND ORDER
WILLIAM S. DUFFEY, JR. UNITED STATES DISTRICT JUDGE.
matter is before the Court on Magistrate Judge Catherine M.
Salinas's Final Report and Recommendation 
(“R&R”), which recommends remanding this
dispossessory action to the Magistrate Court of Gwinnett
October 5, 2017, Plaintiff 2014-2IH Borrower, LP
(“Plaintiff”) initiated a dispossessory
proceeding against its tenant, Defendant Aliya Ray
(“Defendant”), in the Magistrate Court of
Gwinnett County, Georgia. The Complaint seeks possession of
premises currently occupied by Defendant and seeks past due
rent, fees and costs.
October 17, 2017, Defendant, proceeding pro se,
removed the Gwinnett County action to this Court by filing
her Notice of Removal and an application to proceed in
forma pauperis (“IFP”) . Defendant
appears to assert that there is federal subject matter
jurisdiction because there is in this case a question of
federal law. Defendant claims in her Notice of Removal that
Plaintiff violated the “Federal Protecting Tenants Act
Foreclosure Act [sic] Sec. 702, 15 USC 1692(a) and the
Fourteenth Amendment.” (Notice of Removal at 1).
Defendant also asserts that Plaintiff “never serve[d]
the Defendant ‘Demand for possession' as require[d]
by law, ” in violation of O.C.G.A. § 44-7-50.
(Id. at 2).
October 18, 2017, Magistrate Judge Salinas granted
Defendant's application to proceed IFP and considered,
sua sponte, whether the Court has subject matter
jurisdiction over this case. The Magistrate Judge found that
Plaintiff's Complaint asserts a state court dispossessory
claim 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 found that federal subject matter
jurisdiction was not present and recommended that the Court
remand the case to the Magistrate Court of Gwinnett County.
are no objections to the R&R.
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).
does not object to the Magistrate Judge's finding that
Plaintiff's Complaint does not present a federal
question. It is well-settled that federal-question
jurisdiction exists only when a federal question is presented
on the face of a plaintiff's well-pleaded complaint and
that assertions of defenses or counterclaims based on federal
law cannot confer federal question jurisdiction over a cause
of action. 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). The Magistrate Judge concluded that the Court
does not have federal question jurisdiction, and the Court
finds no plain error in this conclusion.
Court also lacks diversity jurisdiction over this action.
Diversity jurisdiction exists over suits between citizens of
different states where the amount in controversy exceeds $75,
000. 28 U.S.C. § 1332(a). Here, the record does not show
the citizenship of the parties, and, even if there is
complete diversity between the parties, the
amount-in-controversy requirement cannot be satisfied because
this is a dispossessory action. “[A] claim seeking only
ejectment in a dispossessory action cannot be reduced to a
monetary sum for the purposes of determining the amount in
controversy.” Citimortgage, Inc. v. Dhinoja,
705 F.Supp.2d 1378, 1382 (N.D.Ga. 2010); Novastar Mortg.,
Inc. v. Bennett, 173 F.Supp.2d 1358, 1361 (N.D.Ga.
2001), aff'd, 35 F. App'x 858 (11th Cir.
2002); cf. 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.”). The amount-in-controversy requirement
is not satisfied and removal is not proper based on diversity
the Court lacks both federal question and diversity
jurisdiction, this action is required to be remanded to state
court. See 28 U.S.C. § 1447(c) (“If at
any time before final judgment it appears that the district