United States District Court, N.D. Georgia, Atlanta Division
UNITED STATES MAGISTRATE JUDGE'S FINAL REPORT AND
J. BAVERMAN UNITED STATES MAGISTRATE JUDGE.
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 Rockdale
April 6, 2018, Defendant Shikema Fluellen, proceeding pro se,
filed an IFP application and notice of removal seeking to
remove a dispossessory action brought against her in the
Magistrate Court of Rockdale County, Georgia, by Plaintiff
Conyers Housing Corporation. [Doc. 1]. Defendant states that
she has removed the dispossessory proceeding on the basis of
federal-question jurisdiction, asserting that this Court has
jurisdiction over the matter because the dispossessory
proceedings are occurring in violation of the Due Process
Clause of the Fourteenth Amendment to the United States
Constitution, the judicial proceedings against Defendant are
occurring in violation of “UCC 306, ” and
Defendant has a bankruptcy appeal currently pending in this
Court. [See Doc. 1-2 at 2].
the undersigned has determined in a separate order that
Defendant may proceed IFP, [Doc.__], 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 . . . .”).
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).
undersigned first examines whether there is diversity
jurisdiction, then considers federal-question jurisdiction.
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).
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 ...