United States District Court, N.D. Georgia, Atlanta Division
MAGISTRATE JUDGE'S FINAL ORDER AND REPORT AND
T. WALKER UNITED STATES MAGISTRATE JUDGE
above-styled case is before the undersigned on pro se
Defendant Anna Bomacelly's ("Bomacelly")
request to file this civil action in forma pauperis, without
prepayment of fees and costs or security therefor pursuant to
28 U.S.C. § 1915(a)(1). (Doc. 1). Pursuant to 28 U.S.C.
§ 1915(a), the Court may, upon a finding of indigency,
authorize the commencement of an action without requiring the
prepayment of costs, fes, or security. Pace v.
Evans. 709 F.2d 1428, 1429 (11th Cir.1983). Thus, the
Court is required to determine whether the statements within
the Affidavit in support of the in frma pauperis petition
demonstrate that the litigant is unable to pay the cost of
the proceeding and support and provide necessities for
himself and his dependents. 28 U.S.C. § 1915; Thomas
v. Chattahoochee Judicial Circuit 574 Fed.Appx. 916, 917
(11th Cir. 2017); Martinez v. Kristi Kleaners. Inc.,
364 F.3d 1305, 1307 (11th Cir. 2004). When determining
whether the litigant is unable to pay the costs of the
proceeding, it is appropriate to consider the litigant's
ability to obtain funds from a spouse or a parent.
Williams v. Berrvhill No. 17-00346-KD-N, 2017 WL
3300541, at *2 (S.D. Ala. Aug. 2, 2017); Sutton v.
Colvin, No. 3:16-CV-886-J-34MCR, 2016 WL 7971445, at *l
n.2 (M.D. Fla. July 26, 2016); Hudson v. Cardwell
Corp., No. 04-0821-WS-M, 2005 WL 1154320, at *2 (S.D.
Ala. May 12, 2005).
case, Plaintiffs Affidavit of poverty indicates that paying
the filing fee or incurring the costs of these proceedings is
not beyond Plaintiffs reach. Here, Plaintiffs Affidavit in
support her petition indicates that Plaintiff makes $18, 000
per month from employment income and $2, 000 per month in
disability income. Even if Plaintiffs income on the Affidavit
was inaccurate, Plaintiff could still incur the costs of the
proceedings because she indicates that she has $25, 000 in a
checking or savings account. (Doc. 1, at 7). Thus, the
requirements of 28 U.S.C. § 1915(a)(1) have not been
satisfied, and Bomacelly's application for leave to
proceed informa pauperis should be DENIED. (Doc. 1).
Additionally, for the reasons outlined below, the Court has
no jurisdiction over the instant lawsuit. Accordingly, this
Court RECOMMENDS that this action be REMANDED pursuant to 28
U.S.C. § 1447(c) to the Magistrate Court of DeKalb
November 201 7, pursuant to Georgia law, Plaintiff East
Perimeter Pointe ("EPP") filed a dispossessory
proceeding in the Magistrate Court of DeKalb County in an
attempt to evict Bomacelly from her residence for failure to
pay rent. (See Doc. 1-1, at 5). Bomacelly removed the matter
to this Court on November 6, 2017, and argued that the matter
was removable because EPP has artfully pled its dispossessory
complaint in order to avoid pleading a federal claim. (Doc.
1-1, at 2). In support, Plaintiff asserts that Plaintiff has
"intentionally failed to allege compliance with the
Civil Rights Act of 1968" and argues that she "is a
member of a protected class of whom the statute, the
'Civil Rights Act of 1968' was created." (Doc.
1-1, at 2-3).
on this Court's review of the pleadings, it is clear that
removal was improper because the Court lacks subject matter
jurisdiction over the instant lawsuit. It is the Court's
duty to inquire into its subject matter jurisdiction sua
sponte whenever it may be lacking. Hernandez v. Att'y
Gen.. 513 F.3d 1336, 1339 (11th Cir. 2008). The general
removal statute, 28 U.S.C. § 1441, does not provide a
basis for removal in this case. Title twenty-eight, Section
1441(a) of the United States Code provides that a "civil
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). District courts have original
jurisdiction of civil cases that present a federal question
or that involve citizens of different states and exceed the
$75, 000.00 amount in controversy threshold. See 28
U.S.C. § 1331 (federal question jurisdiction); 28 U.S.C.
§ 1332(a)(1) (diversity jurisdiction for citizens of
different states). 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). "[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 (11th Cir. 2001) (citation omitted).
"[U]ncertainties are resolved in favor of remand."
Burns v. Windsor Ins. Co., 31 F.3d 1092, 1095 (11th
readily apparent to this Court that federal question
jurisdiction is not present. "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 plaintiffs 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. 482 U.S. 386, 392 (1987) (internal citation
omitted). Potential defenses and counterclaims involving the
Constitution or laws of the United States are ignored.
Vaden v. Discover Bank, 556 U.S. 49, 60 (2009);
Beneficial Nat'l Bank v. Anderson, 539 U.S. 1, 6
case, EPP relied exclusively on state law when it initiated a
dispossessory proceeding in the Magistrate Court of DeKalb
County to seek possession of Bornacelly's residence for
failure to pay rent. (Doc. 1-1, at 5). No federal question is
presented on the face of EPP's Complaint. Jurisdiction
over the initiation and trial of a dispossessory action filed
in Georgia lies entirely in the state court system. See
O.C.G.A. § 44-7-49, et seq. There is also no
evidence that warrants the application of an exception to the
well-pleaded complaint rule, such as the doctrine of complete
preemption. Caterpillar. 482 U.S. at 393.
Additionally, although Bomacelly argues the matter is
removable on the grounds that Plaintiff has
"intentionally failed to allege compliance with the
Civil Rights Act of 1968" in its dispossessory action, a
federal question present in a counterclaim or a defense is
not a proper basis for removal of a complaint. Pretka v.
Kolter City Plaza II, Inc., 608 F.3d 744, 766 n.20 (11th
Cir. 2010). Furthermore, Bomacelly does not explain her
argument that EPP artfully pled its dispossessory action and
this Court sees no basis for her argument.
Bomacelly's Notice of Removal does not support the
existence of diversity jurisdiction. A party removing a case
to federal court based on diversity of citizenship bears the
burden of establishing that the citizenship of the parties is
diverse and that the $75, 000 amount in controversy
jurisdictional threshold is met. Rolling Greens MHP. L.P.
v. Comcast SCH Holdings L.L.C.. 374 F.3d 1020, 1022
(11th Cir. 2004); Fowler v. Safeco Ins. Co. of Am..
915 F.2d 616, 618 (11th Cir. 1990). Neither Bornacelly's
Petition for Removal nor EPP's Complaint includes any
facts showing that the parties are diverse or that the $75,
000 jurisdictional threshold is met. EPP simply seeks
possession of the rental premises and past due rent and fees
in an amount that falls well below the jurisdictional
threshold. (Doc. 1-1, at 5). A claim seeking ejectment in a
dispossessory action cannot be reduced to a monetary sum for
purposes of determining the amount in controversy.
Citimortgage, Inc. v. Dhinoja, 705
F.Supp.2d 1378, 1382 (N.D.Ga. 2010); Fed. Home Loan
Mortg. Corp. v. Williams, Nos. 1:07-CV-2864-RWS,
1:07-CV-2865-RWS, 2008 WL 115096, at *2 (N.D.Ga. Jan. 9,
2008); NovastarMortg., Inc. v. Bennett, 173
F.Supp.2d 1358, 1361-62 (N.D.Ga. 2001), affd 35 Fed.Appx. 858
(11th Cir. 2002). Because Bomacelly has not established a
basis for removal jurisdiction, the undersigned RECOMMENDS
that this action be REMANDED pursuant to 28 U.S.C. §
1447(c) to the Magistrate Court of DeKalb County.
on the foregoing reasons, Defendant Bomacelly's motion to
proceed in forma pauperis should be DENIED. (Doc.
1). Additionally, this Court RECOMMENDS that this action be
REMANDED pursuant to 28 U.S.C. § 1447(c) to the
Magistrate Court of DeKalb County. As this is a final Report
and Recommendation and there are no other matters ...