United States District Court, N.D. Georgia, Atlanta Division
ORDER AND FINAL REPORT AND RECOMMENDATION
S. ANAND, UNITED STATES MAGISTRATE JUDGE.
Eboni Ross, 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 the 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 filing fee.
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 this case. “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 the
Plaintiffs have 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
Plaintiffs' action in state court was “in violation
of the Uniform Commercial Code of 15 U.S.C. 1692 with
unlawful eviction proceedings.” Petition [1-1] at 1.
Defendant also alleges that the Plaintiffs “are
attempting to collect a debt in violation of the Fair Debt
Collection Practices Act (FDCPA) of 1978.” Id.
Thus, it appears that Defendant is alleging that this Court
has subject matter jurisdiction over this case on the basis
of a federal question. 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 Plaintiffs have
asserted no federal claims. Instead, Defendant's Petition
for Removal indicates that the action in the Magistrate Court
of DeKalb 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 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 action”).
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 Application that she is a
resident of Stone Mountain, Georgia, and does not allege
citizenship in any other state. See App.  at
¶ 12. Thus, this action may not be removed on the basis
of diversity jurisdiction.
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
DeKalb 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 ...