United States District Court, N.D. Georgia, Atlanta Division
ORDER AND FINAL REPORT AND RECOMMENDATION
S. ANAND UNITED STATES MAGISTRATE JUDGE.
Contina Ward, proceeding pro se, seeks leave under
28 U.S.C. § 1915(a)(1) to remove this action to this
Court in forma pauperis, without prepaying
applicable fees and costs. It is not clear if Movant is a
defendant in this case, as Movant has not attached the
original Complaint to her Petition for Removal [1-1]-rather,
she has only attached a “Dispossessory Answer”
that appears only to contain the name “Levern
Ward” as Defendant. See Pet. Removal at 3.
Nevertheless, Movant's Application to Proceed in District
Court without Prepaying Fees or Costs  is
GRANTED for the limited purpose of
determining whether this action has been properly removed to
this Court. This action shall therefore proceed as any other
civil action, and Movant shall be allowed to proceed without
prepayment of a filing fee.
to 28 U.S.C. § 1447, if at any time before final
judgment it appears that this Court lacks subject matter
jurisdiction over an action that has been removed from a
state court, this Court must remand the action. See
28 U.S.C. § 1447(c). The undersigned must therefore
examine Movant's Petition for Removal [1-1] to determine
whether this Court has jurisdiction over Plaintiff's
claims. “In 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).
Petition for Removal does not appear to contend that
Plaintiff has asserted any federal claims in the subject
state-court action. It is not entirely clear, but it appears
that Movant is attempting to assert counterclaims or defenses
under federal law. Movant alleges that “[t]he
proceedings occurring in violation of the Uniform Commercial
Code of 15 U.S.C. 1692 with unlawful eviction
proceedings.” Pet. Removal at 1. She also alleges that
Plaintiff is “attempting to carry out an illegal
eviction in violation of the Fair Housing Act (Title VIII
of the Civil Rights Act of 1968) and is attempting to
collect a debt in violation of the Fair Debt Collection
Practices Act (FDCPA) 15 U.S.C. 1692.” Id. at
1-2. Thus, it appears that Movant is alleging that this Court
has subject matter jurisdiction over this case on the basis
of a federal question. The Court has reviewed the record,
however, and determines that Movant has not established
federal question jurisdiction.
28 U.S.C. § 1331, “[t]he district courts shall
have original jurisdiction of all civil actions arising under
the Constitution, laws, or treaties of the United
States.” 28 U.S.C. § 1331. Under 28 U.S.C. §
1441, a defendant may remove a civil action to a district
court on the basis of such federal question jurisdiction.
See 28 U.S.C. § 1441(a). The Supreme Court has
held that the presence or absence of federal question
jurisdiction is governed by the “well-pleaded
complaint” rule. That rule provides that federal
jurisdiction exists only when a federal question is presented
on the face of the state-court plaintiff's
properly-pleaded complaint. See Gully v. First Nat'l
Bank, 299 U.S. 109, 112B13 (1936); see also Anderson
v. Household Fin. Corp., 900 F.Supp. 386, 388 (M.D. Ala.
case, a review of the record reveals that Plaintiff has
asserted no federal claims. Instead, Movant's Petition
for Removal indicates that Plaintiff's action in the
Magistrate Court of Fulton County is a dispossessory action.
See Pet. Removal at 3 (Defendant's
“Dispossessory Answer” in the Fulton Magistrate
Court). An eviction or dispossessory action is a process
governed by state law that does not typically implicate
federal law. Movant has not identified any federal question
that Plaintiff's state-court dispossessory action raises.
To the extent that Movant is attempting to remove this action
by asserting defenses or counterclaims that invoke federal
statutes, that basis of removal is also improper. Under the
well-pleaded complaint rule, federal defenses and
counterclaims are not sufficient to confer jurisdiction on
this Court to hear an action removed from a state court.
See Fed. Land Bank of Columbia v. Cotton, 410
F.Supp. 169, 170 n.1 (N.D.Ga. 1975) (“Defendants=
defense and counterclaim relating to truth-in-lending
violations are clearly not sufficient to confer
subject-matter jurisdiction upon this court for the entire
has not alleged that this Court has diversity jurisdiction
over this action. See 28 U.S.C. § 1332(a);
see Civil Cover Sheet [1-2] ¶ II (alleging
“Federal Question” as the “Basis of
Jurisdiction”). But even if Movant had alleged
diversity as a basis for jurisdiction, diversity between
parties does not provide a basis for removal to federal court
if any of the properly joined defendants is a citizen of the
state in which the action is brought. See 28 U.S.C.
§ 1441(b)(2). Movant states in the Civil Cover Sheet
that she is a resident of Atlanta, Georgia, and does not
allege citizenship in any other state. See Civil
Cover Sheet & I(c). Thus, to the extent Movant is a party
to this action, this action may not be removed on the basis
of diversity jurisdiction. To the extent Movant is not a
party, that would provide independent grounds to remand, as
Movant would lack standing to remove this action.
while Movant's Application to Proceed in District Court
without Prepaying Fees or Costs  is
GRANTED, for the reasons discussed above,
the undersigned RECOMMENDS that this action
be REMANDED to the Magistrate Court of
is a Final Report and Recommendation, there is nothing
further in this action pending before the undersigned.
Accordingly, the Clerk is DIRECTED to
terminate the reference of this matter to the undersigned.
IS SO ORDERED ...