United States District Court, N.D. Georgia, Atlanta Division
FINAL REPORT AND RECOMMENDATION
F. KINO, UNITED STATES MAGISRTAE JUDGE.
above-styled case is before the undersigned on Defendant
Ciara Williams' application to proceed in forma
pauperis. [Doc. 1]. The court, for the purpose of
remand, GRANTS Defendant's motion. The
court has the responsibility “to review the
Defendant's notice of removal to determine whether it
meets the requirements of the statute.” Alabama v.
Baker, 222 F.Supp.2d 1296, 1297-98 (M.D. Ala. 2002).
“If at any time before final judgment it appears that
the district court lacks subject matter jurisdiction, ”
28 U.S.C. § 1447(c) (amended 2011) requires that
“the case shall be remanded.” Upon making this
review, the court finds that it does not and recommends
33 Realty Management, the owner of the real property commonly
known as 2342 Hackamore Drive, Atlanta, Georgia 30314, filed
a dispossessory proceeding in the Magistrate Court of Fulton
County, Georgia, on or about February 12, 2018, against
Defendant Ciara Williams for failure to pay rent which is now
past due. [Doc. 1-1 at 4 (“Dispossessory
Proceeding”)]. On March 2, 2018, Defendant filed a
petition for removal and requests injunctive relief to stay
dispossessory/eviction proceedings. [Doc. 1-1
U.S.C. § 1441(a) provides that “any action brought
in a State court of which the district courts of the United
States have original jurisdiction, may be removed by the
defendant or the defendants, to the district court of the
United States for the district and division embracing the
place where such action is pending.” 28 U.S.C. §
1441(a). However, “[i]f at any time before final
judgment it appears that the district court lacks subject
matter jurisdiction, the case shall be remanded.” 28
U.S.C. § 1447(c). See also Arbaugh v. Y & H
Corp., 126 S.Ct. 1235, 1244 (2006) (all federal courts
“have an independent obligation to determine whether
subject-matter jurisdiction exists, even in the absence of a
challenge from any party”). “[I]n 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
(11thCir. 2001). “[U]ncertainties are
resolved in favor of remand.” Burns v. Windsor Ins.
Co., 31 F.3d 1092, 1095 (11th Cir. 1994).
Williams bases the petition for removal of Plaintiff 33
Realty Management's dispossessory proceeding on the
court's federal question jurisdiction. [Removal].
“The presence or absence of federal-question
jurisdiction is governed by the ‘well-pleaded complaint
rule, ' which provides that federal jurisdiction exists
only when a federal question is presented on the face of the
plaintiff's properly pleaded complaint. . . . The rule
makes the plaintiff the master of the claim; he or she may
avoid federal jurisdiction by exclusive reliance on state
law.” Caterpillar, Inc. v. Williams, 107 S.Ct.
2425, 2429 (1987) (citations omitted). Potential defenses
involving the Constitution or laws of the United States are
ignored. Beneficial Nat'l Bank v. Anderson, 123
S.Ct. 2058, 2062 (2003).
present case, Plaintiff relied exclusively on state law when
filing the dispossessory action in the Magistrate Court of
Fulton County. [Dispossessory Proceeding]. A dispossessory
action is brought pursuant to O.C.G.A. § 44-7-50.
See Citimortgage, Inc. v. Dhinoja, 705 F.Supp.2d
1378, 1381 (N.D.Ga. 2010); Ikomoni v. Executive Asset
Management, LLC, 309 Ga.App. 81, 84, 709 S.E.2d 282, 286
(March 16, 2011) (“‘The exclusive method
whereby a landlord may evict a tenant is through a properly
instituted dispossessory action filed pursuant to OCGA §
44-7-50 et seq.'”) (citation omitted)
(emphasis added); see also Fennelly v. Lyons, 333
Ga.App. 96, 100, 775 S.E.2d 587, 592 (2015) (same). Defendant
alleges that removal is proper on the basis of federal
question jurisdiction and, in the Petition for Removal,
claims that Plaintiff violated the Fair Debt Collection
Practices Act, 15 U.S.C. § 1692, and her constitutional
rights. [Removal]. However, no federal question is presented
on the face of Plaintiff's well-pleaded complaint.
[Dispossessory Proceeding]. There is also no evidence which
warrants the application of an exception to the well-pleaded
complaint rule, such as the doctrine of complete preemption.
Caterpillar, 107 S.Ct. at 2430.
does not appear to assert jurisdiction based on diversity in
the notice of removal. [Removal]. There is no evidence that
diversity jurisdiction exists. To make the necessary showing,
Defendant would have to demonstrate that there is complete
diversity of citizenship between Defendant and Plaintiff and
that the amount in controversy exceeds $75, 000.00.
See 28 U.S.C. § 1332(a)(1). There is no
evidence of diversity of citizenship. And, as to damages,
Plaintiff's dispossessory proceeding seeks the ejectment
of Defendant from the property due to failure to pay past due
rent. [Dispossessory Proceeding]. And Plaintiff seeks past
due rent in the amount of $2, 603.00 and rent accruing to the
date of judgment or vacancy at the rate of $35.00 per day.
[Id.]. Again, the court looks to Plaintiff's
claim to determine whether removal jurisdiction is
appropriate. See Burns, 31 F.3d at 1095;
Novastar Mortg., Inc. v. Bennett, 173 F.Supp.2d
1358, 1361 (N.D.Ga. 2001). The face of the complaint does not
show that the amount in controversy exceeds the $75, 000.00
required for the court to have diversity jurisdiction as a
basis for removal.
these reasons, the court finds that federal jurisdiction does
not exist and that this action should be remanded pursuant to
28 U.S.C. § 1447(c).
also seeks injunctive relief and stay of the dispossessory
proceedings and/or eviction. [Removal]. Defendant is not
entitled to the injunctive relief she seeks; a stay of the
dispossessory proceedings is not appropriate. See
American Homes 4 Rent Properties Eight, LLC v. Dynott,
2015 WL 5920130, at *2 & n.4 (N.D.Ga. October 8, 2015)
(denying the defendant's motion to stay state court
dispossessory proceedings as moot because court lacked
subject-matter jurisdiction and noting that, “[e]ven if
subject-matter jurisdiction existed, the Court [would be]
unable to grant Defendant the relief he seeks - a stay of
state court eviction proceedings - because a federal court is
prohibited under the Anti-Injunction Act . . . from enjoining
a state court eviction proceeding”); U.S. Bank
National Ass'n v. Sanders, 2015 WL 1568803, at *3
(N.D.Ga. April 7, 2015) (“Because this action is
required to be remanded, Defendant's . . . Motion to Stay
. . . [should be] denied.”); and see CF Lane, LLC
v. Stephens, 2014 WL 1572472, at *2 (N.D.Ga. April 17,
2014) (“this Court cannot enjoin a state court action
because Defendant failed to demonstrate any lawful basis for
removal of this action to this court, IT IS
RECOMMENDED that this action be
REMANDED to the Magistrate Court of Fulton
County where it was last pending.
Clerk is DIRECTED to terminate the reference