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Najarian Capital, LLC v. Tucker

United States District Court, N.D. Georgia, Atlanta Division

December 6, 2017

MARIAN TUCKER, LYNETTE TOWNES, And All Others, Defendants.



         This matter is before the Court on Defendant Lynette Townes's (“Defendant” or “Townes”) Objections [5] to Magistrate Judge J. Clay Fuller's Order and Final Report and Recommendation (“R&R”) [2]. The R&R grants Defendant's request to proceed in forma pauperis solely for the limited purpose of determining whether this action has been properly removed to this Court. The R&R also finds that this Court lacks subject matter jurisdiction over this action and recommends that this case be remanded to the Magistrate Court of Fulton County.

         I. BACKGROUND

         On September 18, 2017, Plaintiff Najarian Capital, LLC, (“Najarian”) initiated a dispossessory proceeding (“Complaint”) against Defendant in the Magistrate Court of Fulton County, Georgia. ([1-1] at 8). The Complaint seeks possession of premises currently occupied by Defendants and court costs of $139. (Id.)

         On October 11, 2017, Defendant, proceeding pro se, removed the Fulton County action to this Court by filing her Notice of Removal[1] and IFP Application. ([1]). Defendant claims in her Notice of Removal that “Respondent” violated the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. (“FDCPA”) and Rule 60 of the Federal Rules of Civil Procedure, “having a legal duty to abort eviction pursuant to O.C.G.A. 51-1-6 [sic], ” and the Due Process Clause of the Fourteenth Amendment. ([1-1] at 3).

         On October 17, 2017, the Magistrate Judge issued his R&R, which recommends dismissing this action for lack of subject matter jurisdiction. The Magistrate Judge found that the complaint did not present a federal question and that diversity jurisdiction did not exist. ([2] at 3-4).

         On October 31, 2017, Defendant filed an Objection and Response [5], requesting that “the court vacate the order to remand the case back to magistrate court Fulton County. ([5] at 1 (uncorrected)). Defendant argues that the “court errs if court dismisses the pro se litigant without instruction of how pleadings are deficient and how to repair pleadings.” (Id. (uncorrected)). Defendant further states that this Court has jurisdiction pursuant to “28USC 1332, USC 1331 (a), 28 USC 1443.” (Id. (uncorrected)). Defendant also attached to the Objection a document with allegations directed to “defendant Wells Fargo Bank, N.A.” ([1-1] at 3-5).


         A. Standard of Review of the Magistrate Judge's R&R

         After 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 (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). This requires that the district judge “give fresh consideration to those issues to which specific objection has been made by a party.” Jeffrey S. v. State Bd. of Educ. of Ga., 896 F.2d 507, 512 (11th Cir. 1990) (internal quotation marks omitted). 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), cert. denied, 464 U.S. 1050 (1984).

         Defendant's Objection [5] merely reasserts that this Court has jurisdiction to hear this case. The Objection does not identify with any specificity any error in the Magistrate Judge's findings regarding jurisdiction or provide any additional facts pertinent to subject matter jurisdiction. The attached document containing allegations directed to Wells Fargo, N.A., does not appear to have any relevance to this case. The Court need not consider “[f]rivolous, conclusive, or general objections” to a magistrate's report and recommendation. Marsden v. Moore, 847 F.2d 1536, 1548 (11th Cir. 1988).

         B. Subject Matter Jurisdiction

         The Court finds no plain error in the Magistrate Judge's finding that this Court lacks subject matter jurisdiction. See Slay, 714 F.2d at 1095. Even if the Court were to consider Defendant's Objection [5] sufficient to require a de novo review, it is clear that this Court does not have jurisdiction to hear this dispossessory action.

         The Eleventh Circuit has consistently held that “a court should inquire into whether it has subject matter jurisdiction at the earliest possible stage in the proceedings. Indeed, it is well settled that a federal court is obligated to inquire into subject matter jurisdiction sua sponte whenever it may be lacking.” Univ. of S. Ala. v. Am. Tobacco Co., 168 F.3d 405, 410 (11th Cir. 1999). “[O]nce a ...

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