United States District Court, N.D. Georgia, Atlanta Division
PACES PARK APARTMENTS and WOODWARD PROPERTY MANAGEMENT, Plaintiff,
JAMILA MASON, and All Other Occupants, Defendants.
ORDER AND FINAL REPORT AND RECOMMENDATION
S. ANAND UNITED STATES MAGISTRATE JUDGE.
Jamila Mason, 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. Defendant's Application to
Proceed in District Court without Prepaying Fees or Costs 
states that she earns $3, 500 per month and incurs expenses
of $3, 450 per month, but that she has had unexpected
expenses recently due in part to deaths in the family, and
that she is not making enough money at work for such
expenses. See Application  at ¶¶ 1, 8,
12. The Court does not necessarily find that Defendant's
income and assets are insufficient to allow Defendant to pay
the filing fee or incur the costs of this action.
Nevertheless, Defendant's Application to Proceed in
District Court without Prepaying Fees or Costs  is
GRANTED for the limited purpose of
determining whether this action has been properly removed to
this Court. 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 [1-1] to
determine whether this Court has jurisdiction over
Plaintiffs' 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
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 “The
Plaintiff did violate 15 USC 1692, Rule 60 of the federal
rule of Civil Procedure; and having a legal duty to abort
eviction pursuant to O.C.G.A. 51-1-6, ” and also that
“The Magistrate Court of Dekalb County Dispossessory
action is violation of 14th Amendment of the U.S.
Constitution with to Due Process of Law” and that
“The Magistrate Court of Dekalb County Dispossessory is
Unconstitutional with respect to the ‘Due Process
Clauses' 14th Amendment.” Pet. Removal
¶¶ 1-3. 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 Plaintiffs' action in the
Magistrate Court of Dekalb County is a dispossessory action
to evict 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
Plaintiffs' state-court dispossessory action raises. To
the extent that Defendant is attempting to remove this action
by asserting defenses or counterclaims that invoke federal
statutes or the federal Constitution, 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)
(“Defendants' defense and counterclaim relating to
truth-in-lending violations are clearly not sufficient to
confer subject-matter jurisdiction upon this court for the
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
Decatur, Georgia, and does not allege citizenship in any
other state. See Application ¶ 13. 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
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 ...