United States District Court, N.D. Georgia, Atlanta Division
ORDER ADOPTING REPORT AND RECOMMENDATION (DKT.
MICHAEL L. BROWN UNITED STATES DISTRICT JUDGE
the Court is the Magistrate Judge Report and Recommendation
(“R&R”). (Dkt. 5). Jim Burnett removed this
action from state court to federal court. (Dkt. 1). The
Magistrate Judge reviewed that removal and issued the R&R
recommending that the Court remand this action to the State
Court of Dekalb County, Georgia, for lack of subject matter
jurisdiction. Jim Burnett then filed objections
(“Objections”) to the R&R. (Dkt. 7).
court should inquire into whether it has subject matter
jurisdiction at the earliest possible stage in the
proceedings.” Univ. of S. Ala. v. Am. Tobacco
Co., 168 F.3d 405, 410 (11th Cir. 1999). “The
district court may remand a case sua sponte for lack of
subject matter jurisdiction at any time.” Corporate
Mgmt. Advisors, Inc. v. Artjen Complexus, Inc., 561 F.3d
1294, 1296 (11th Cir. 2009); see also 28 U.S.C.
§ 1447(c) (“If at any time before final judgment
it appears that the district court lacks subject matter
jurisdiction, the case shall be remanded.”).
no party files objections to the R&R, the Court conducts
a review of the record for plain error. See United States
v. Slay, 714 F.2d 1093, 1095 (11th Cir. 1983) (per
curium). But where, as here, a party has objected to the
R&R, a district judge “shall make a de novo
determination of those portions of the report or specified
proposed findings of recommendations to which an objection is
made.” 28 U.S.C. § 636(b)(1).
careful and complete de novo review of the record,
the Court agrees with the Magistrate Judge's
recommendation that the action should be remanded to the
State Court of Dekalb County, Georgia for lack of subject
attempts to remove this dispossessory action from the State
Court of Dekalb County to federal court. The federal district
court has original jurisdiction under § 1441 if there is
diversity jurisdiction or federal question jurisdiction. The
Court has conducted a de novo review of the record
and has determined, consistent with the thorough and
well-reasoned R&R, that Plaintiff may not remove this
case based on diversity jurisdiction or federal question
28 U.S.C. § 1332, district courts “have original
jurisdiction of all civil actions where the matter in
controversy exceeds the sum or value of $75, 000” and
is between citizens of different states. 28 U.S.C. §
1332(a). But in a removal action, 28 U.S.C. § 1441(b)
bars removal on the basis of diversity “if any party in
interest properly joined and served as a defendant is a
citizen of the State in which the action is brought.”
Lincoln Prop. Co. v. Roche, 546 U.S. 81, 90 (2005)
(punctuation omitted); accord Caterpillar Inc. v.
Lewis, 519 U.S. 61, 68 (1996). A simple search of the
Georgia Secretary of State website shows that at least one
defendant, JT Real Estate Holdings, Inc., is a citizen of
Georgia. See Ga. Sec'y of State, Georgia
Corporations Division. Thus, the case brought against the
defendant in a Georgia state court cannot be removed to the
Northern District of Georgia. Further, this case does not
satisfy the amount-in-controversy requirement of diversity
jurisdiction. Burnett claims in both the Complaint (Dkt. 1 at
2) and in his Objections (Dkt. 7 at 5) that more than $75,
000 is at issue in this case, yet he provides no factual
allegations to support that statement. This does not satisfy
the burden to show by a preponderance of the evidence that
the amount in controversy element of diversity jurisdiction
can be satisfied. See Friedman v. N.Y. Life Ins.
Co., 410 F.3d 1350, 1353 (11th Cir. 2005) (quoting
Kirkland v. Midland Mortgage Co., 243 F.3d 1277
also fails to show that this action is removable based on
federal question jurisdiction. To be removable on the basis
of federal question jurisdiction, the action must be founded
on a claim or right arising under federal law, and the action
must be one of which the district court has original
jurisdiction, meaning it “originally could have been
filed in federal court.” Caterpillar Inc. v.
Williams, 482 U.S. 386, 392 (1987); Dial v.
Healthspring of Ala., Inc., 541 F.3d 1044, 1047 (11th
Cir. 2008); see also 28 U.S.C. §§ 1331,
notice of removal states vaguely that the complaint presents
a federal question such that removal is appropriate under
that theory (Dkt. 1 at 2), but there is no indication that
the underlying case is anything but a state dispossessory
action containing no federal claim. See generally
Dkt. 1. Removal based on federal question jurisdiction under
28 U.S.C. § 1331 is, therefore, improper. See
Beneficial Nat'l Bank v. Anderson, 539 U.S. 1, 6
(2003) (“As a general rule, absent diversity
jurisdiction, a case will not be removable if the complaint
does not affirmatively allege a federal claim”)). The
fact that Burnett raises in his Objections certain defenses
or counterclaims based on alleged violations of the U.S.
Constitution does not alter this conclusion. Potential
defenses or counterclaims do not provide a basis for removal.
See Anderson, 529 U.S. at 6; Williams, 482
U.S. at 392.
the Court lacks subject matter jurisdiction, and because the
Court has conducted its own review and agrees with those
findings and conclusions reached in the R&R, it must
remand the action to the State Court of Dekalb County.
See 28 U.S.C. § 1447(c) (“If at any time
before final judgment it appears that the district court
lacks subject matter jurisdiction, the case shall be
the Court ADOPTS the Magistrate Judge's
R&R and all pending motions in this case are hereby
DENIED AS MOOT. The action shall be
REMANDED to the State Court of Dekalb