United States District Court, N.D. Georgia, Atlanta Division
JOSE J. SANCHEZ, Plaintiff,
BARRET WOMACK, and Others, Defendants.
ORDER AND FINAL REPORT AND RECOMMENDATION
S. ANAND, UNITED STATES MAGISTRATE JUDGE
Barret Womack, proceeding pro se, seeks leave under
28 U.S.C. § 1915(a)(1) to remove this action to this
Court in forma pauperis, without prepaying
applicable fees and costs or security therefor.
Defendant's Application to Proceed in District Court
without Prepaying Fees or Costs  indicates that Defendant
is unable to pay the filing fee or to incur the costs of
these proceedings. Defendant thus satisfies the requirements
of 28 U.S.C. § 1915(a)(1), and Defendant's
Application to Proceed in District Court without Prepaying
Fees or Costs  is GRANTED. This action
shall therefore proceed as any other civil action, and
Defendant shall be allowed to proceed without prepayment of a
to 28 U.S.C. § 1447, if at any time before final
judgment it appears that this Court lacks subject matter
jurisdiction over an action that has been removed from a
state court, this Court must remand the action. See
28 U.S.C. § 1447(c). The undersigned must therefore
examine Defendant's “Petition for Removal and
Federal Stay of Eviction Pursuant to 28 USC 1441 (B)”
[1-1] (“Petition for Removal”) to determine
whether this Court has jurisdiction over Plaintiff's
claims. “In removal cases, the burden is on the party
who sought removal to demonstrate that federal jurisdiction
exists.” Kirkland v. Midland Mortg. Co., 243
F.3d 1277, 1281 n.5 (11th Cir. 2001).
Petition for Removal does not appear to contend that
Plaintiff has asserted any federal claims in the subject
state-court action. It is not entirely clear, but it appears
that Defendant is attempting to assert counterclaims or
defenses under federal law. Defendant alleges that the
“proceedings occurring in violation of the Uniform
Commercial Code of 15 U.S.C. 1692 with unlawful eviction
proceedings. . . . Jose J. Sanchez is . . . attempting to
collect a debt in violation of the Fair Debt Collection
Practices Act (FDCPA) of 1978.” Pet. Removal at 1.
Thus, it appears that Defendant is alleging that this Court
has subject matter jurisdiction over this case on the basis
of a federal question. See also Civil Cover Sheet
[1-2] ¶ II (checking box for “Federal
Question” as “Basis of Jurisdiction”). The
Court has reviewed the record, however, and determines that
Defendant has not established federal question jurisdiction.
28 U.S.C. § 1331, “[t]he district courts shall
have original jurisdiction of all civil actions arising under
the Constitution, laws, or treaties of the United
States.” 28 U.S.C. § 1331. Under 28 U.S.C. §
1441, a defendant may remove a civil action to a district
court on the basis of such federal question jurisdiction.
See 28 U.S.C. § 1441(a). The Supreme Court has
held that the presence or absence of federal question
jurisdiction is governed by the “well-pleaded
complaint” rule. That rule provides that federal
jurisdiction exists only when a federal question is presented
on the face of the state court plaintiff's properly
pleaded complaint. See Gully v. First Nat'l
Bank, 299 U.S. 109, 112-13 (1936); see also Anderson
v. Household Fin. Corp., 900 F.Supp. 386, 388 (M.D. Ala.
case, a review of the record reveals that Plaintiff has
asserted no federal claims. Instead, Defendant's Petition
for Removal indicates that Plaintiff's action in the
Magistrate Court of Cobb County is a dispossessory action to
evict the Defendant as a tenant for failure to pay rent.
See Petition for Removal and attachments. An
eviction or dispossessory action is a process governed by
state law that does not typically implicate federal law.
Defendant has not identified any federal question that the
Plaintiff's state-court dispossessory action raises. To
the extent that Defendant is attempting to remove this action
by asserting defenses or counterclaims which invoke federal
statutes, that basis of removal is also improper. Under the
well-pleaded complaint rule, federal defenses and
counterclaims are not sufficient to confer jurisdiction on
this Court to hear an action removed from a state court.
See Fed. Land Bank of Columbia v. Cotton, 410
F.Supp. 169, 170 n.1 (N.D.Ga. 1975) (“defendant's
defense and counterclaim relating to truth-in-lending
violations are clearly not sufficient to confer
subject-matter jurisdiction upon this court for the entire
has not alleged that this Court has diversity jurisdiction
over this action. See 28 U.S.C. § 1332(a). But
even if Defendant had alleged diversity as a basis for
jurisdiction, diversity between parties does not provide a
basis for removal to federal court if any of the properly
joined defendants is a citizen of the state in which the
action is brought. See 28 U.S.C. § 1441(b)(2).
Defendant states in the Civil Cover Sheet that he is a
resident of Austell, Georgia, and does not allege citizenship
in any other state. See Civil Cover Sheet [1-1]
¶ I(c). Moreover, Defendant states that he and Plaintiff
are both citizens of Georgia. Id. ¶ III. Thus,
this action may not be removed on the basis of diversity
while Defendant's Application to Proceed in District
Court without Prepaying Fees or Costs  is
GRANTED, for the reasons discussed above,
the undersigned RECOMMENDS that this action
be REMANDED to the Magistrate Court of Cobb
County. As this is a Final Report and Recommendation, there
is nothing further in this action pending before the
undersigned. Accordingly, the Clerk is
DIRECTED to terminate the reference of this
matter to the undersigned.
IS SO ORDERED ...