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AIGP Clifton Glen LLC v. Brandon

United States District Court, N.D. Georgia, Atlanta Division

April 2, 2018

AIGP CLIFTON GLEN LLC, also known as Clifton Glen, and PROVENCE REAL ESTATE, Plaintiffs,



         This matter is presently before the Court for frivolity review pursuant to 28 U.S.C. § 1915(e). For the reasons below, the undersigned RECOMMENDS that the case be REMANDED to the Magistrate Court of DeKalb County, Georgia.

         I. Introduction

         On March 30, 2018, Defendant Calvin Brandon, proceeding pro se, filed an IFP application and notice of removal seeking to remove a dispossessory action brought against him in the Magistrate Court of DeKalb County, Georgia, by Plaintiffs AIGP Clifton Glen LLC, also known as Clifton Glen, and Provence Real Estate.[1] [Doc. 1]. Defendant states that he seeks to remove the action on the grounds that Plaintiffs violated the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq. [Doc. 1-1 at 1-2].

         II. Frivolity Review

         A. Standard

         Because the undersigned has determined in a separate order that Defendant may proceed IFP, the Court must perform a frivolity review pursuant to 28 U.S.C. § 1915(e). Under 28 U.S.C. § 1915(e), a court must “sua sponte dismiss [an indigent non-prisoner's] complaint or any portion thereof which is frivolous, malicious, fails to state a claim, or seeks damages from defendants who are immune.” Robert v. Garrett, No. 3:07-cv-625, 2007 WL 2320064, at *1 (M.D. Ala. Aug. 10, 2007); see also 28 U.S.C. § 1915(e)(2)(B)(i)-(iii). A claim is frivolous under § 1915(e)(2)(B)(i) “if it is ‘without arguable merit either in law or fact.' ” Napier v. Preslicka, 314 F.3d 528, 531 (11th Cir. 2002) (quoting Bilal v. Driver, 251 F.3d 1346, 1349 (11th Cir. 2001)). A litigant does not state a claim under § 1915(e)(2)(B)(ii) “when the facts as pleaded do not state a claim for relief that is ‘plausible on its face.' ” Thompson v. Rundle, 393 Fed.Appx. 675, 678 (11th Cir. Aug. 20, 2010) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). A pro se pleading is liberally construed. Douglas v. Yates, 535 F.3d 1316, 1320 (11th Cir. 2008). This leniency does not permit the district court to act as counsel for a party or to rewrite deficient pleadings. Lampkin-Asam v. Volusia Cnty. Sch. Bd., 261 Fed.Appx. 274, 276-77 (11th Cir. Jan. 9, 2008) (per curiam) (citing GJR Invs., Inc. v. County of Escambia, Fla., 132 F.3d 1359, 1369 (11th Cir. 1998)); see also GJR Invs., Inc., 132 F.3d at 1369 (“Yet even in the case of pro se litigants this leniency does not give a court license to serve as de facto counsel for a party . . . .”).

         B. Analysis

         As the following discussion demonstrates, the undersigned determines that Defendant improvidently removed the state-court action to this Court. A defendant may remove a case from state court to federal court if the federal court has original jurisdiction over the case. 28 U.S.C. § 1441(a). A district court lacks subject-matter jurisdiction over a removal action when it does not have “original jurisdiction over the plaintiff's claims.” Univ. of S. Ala. v. Am. Tobacco Co., 168 F.3d 405, 410 (11th Cir. 1999). Original jurisdiction under § 1441 arises if there is diversity of citizenship or the complaint presents a federal question. See 28 U.S.C. § 1441(b); Geddes v. Am. Airlines, Inc., 321 F.3d 1349, 1352 n.2 (11th Cir. 2003); Blab T.V. of Mobile, Inc. v. Comcast Cable Commc'ns, Inc., 182 F.3d 851, 854 (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.”). Further, “[f]ederal courts are courts of limited jurisdiction, and there is a presumption against the exercise of federal jurisdiction, such that all uncertainties as to removal jurisdiction are to be resolved in favor of remand.” Russell Corp. v. Am. Home Assurance Co., 264 F.3d 1040, 1050 (11th Cir. 2001).

         The undersigned first examines whether there is diversity jurisdiction, then considers federal-question jurisdiction.

         1. Diversity Jurisdiction

         Under 28 U.S.C. § 1332, district courts have original jurisdiction over 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). Under § 1332(a), an in-state plaintiff may invoke diversity jurisdiction in a federal court that sits in the state where the plaintiff resides. Lincoln Prop. Co. v. Roche, 546 U.S. 81, 89 (2005). The removal statute does not provide an in-state party the same flexibility in removing cases, however. Id. at 89-90 (“The scales are not evenly balanced” for plaintiffs bringing a case under diversity jurisdiction and for defendants removing a case under diversity jurisdiction.). Instead, § 1441(b) bars removal on the basis of diversity if the “part[y] is a citizen of the State in which [the] action is brought.” Id. at 90 (quoting 28 U.S.C. § 1446(b)); see also Caterpillar Inc. v. Lewis, 519 U.S. 61, 69 (1996).

         The Court concludes that Defendant cannot show diversity-of-citizenship jurisdiction. First, Defendant cannot meet the amount-in-controversy requirement. As a District Judge in the Northern District of Georgia has held in a similar context:

In this case, Defendant has failed to demonstrate that either there is diversity of citizenship between him and [Plaintiff] or that the amount in controversy in this matter exceeds $75, 000.00. As a dispossessory proceeding under Georgia law is not an ownership dispute, but rather only a dispute over the limited right to possession, title to the property is not at issue and, accordingly, the removing defendant may not rely on the value of the property as a whole to satisfy the amount in controversy requirement. See Novastar Mortgage, Inc. v. Bennett, 173 F.Supp.2d 1358, 1361-62 (N.D.Ga. 2001) (holding on nearly identical facts that claim for ejectment in summary dispossessory proceeding ...

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