United States District Court, N.D. Georgia, Atlanta Division
BH MANAGEMENT, agent of Stone Ridge at Vinings Apts, Plaintiff,
MARQUELL WALKER and all other occupants, Defendants
ORDER AND FINAL REPORT AND RECOMMENDATION
Clay Fuller, United States Magistrate Judge.
Marquell Walker, who is proceeding pro se, seeks
leave to remove to this Court a dispossessory action filed by
Plaintiff in the Magistrate Court of Cobb County
(see Doc. 1-2 at 5), without prepayment of fees or
security pursuant to 28 U.S.C. § 1915(a). The Court
GRANTS Defendant's request to proceed
in forma pauperis solely for the limited purpose of
determining whether this action has been properly removed to
this Court. For the reasons discussed below, the undersigned
finds that this Court lacks subject matter jurisdiction over
this action, and therefore, it is
RECOMMENDED that the case be
REMANDED to the Magistrate Court of Cobb
as otherwise expressly provided by Act of Congress, any 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 . . ., 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). “Subject matter jurisdiction in
a federal court may be based upon federal question
jurisdiction or diversity jurisdiction.” Walker v.
Sun Trust Bank of Thomasville, Ga., 363 Fed.Appx. 11, 15
(11th Cir. 2010) (unpublished decision) (citing 28 U.S.C.
§§ 1331, 1332). “Only state-court actions
that originally could have been filed in federal court may be
removed to federal court by the defendant. Absent diversity
of citizenship [pursuant to 28 U.S.C. § 1332],
federal-question jurisdiction [pursuant to 28 U.S.C. §
1331] is required.” Caterpillar, Inc. v.
Williams, 482 U.S. 386, 392 (1987).
determining subject-matter jurisdiction, a court must
construe the removal statute narrowly and resolve any
uncertainties in favor of remand.” Ashley v. Bank
of Am., N.A., No. 1:11-CV-3762-RWS, 2012 U.S. Dist.
LEXIS 86793, at *4 (N.D.Ga. June 21, 2012) (citing Burns
v. Windsor Ins., 31 F.3d 1092, 1095 (11th Cir. 1994)).
“Further, the party seeking removal bears the burden of
establishing federal jurisdiction.” Id.;
see also Kirkland v. Midland Mortg. Co., 243 F.3d
1277, 1281 n.5 (11th Cir. 2001) (“[I]n removal cases,
the burden is on the party who sought removal to demonstrate
that federal jurisdiction exists.”). In this case,
Defendant asserts that federal question jurisdiction exists,
and he has not shown that the requirements for diversity
jurisdiction have been met. (See Doc. 1-2 at 2, Doc.
1-3 at 1).
well-pleaded complaint rule has long governed whether a case
‘arises under' federal law for purposes of §
1331, ” and that rule “governs whether a case is
removable from state to federal court pursuant to 28 U.S.C.
§ 1441(a) . . . .” Holmes Group, Inc. v.
Vornado Air Circulation Sys., Inc., 535 U.S. 826, 830
and n.2 (2002). The well-pleaded complaint rule
“provides that federal jurisdiction exists only when a
federal question is presented on the face of the
plaintiff's properly pleaded complaint.”
Caterpillar, Inc., 482 U.S. at 392. Defenses or
potential defenses, even those arising under federal laws or
the United States Constitution, are ignored in determining
whether a federal question has been raised by the
plaintiff's complaint. See Ben. Nat'l Bank v.
Anderson, 539 U.S. 1, 6 (2003) (“To determine
whether the claim arises under federal law, we examine the
‘well pleaded' allegations of the complaint and
ignore potential defenses . . . .”); Pan Am.
Petroleum Corp. v. Superior Court of Del., 366 U.S. 656,
663 (1961) (If the plaintiff does not raise a federal
question in the complaint, “it is no substitute that
the defendant is almost certain to raise a federal
defense”); Bd. of Educ. of the City of Atlanta v.
Am. Fed'n of State, County and Mun. Employees, 401
F.Supp. 687, 690 (N.D.Ga. 1975) (“Stated simply, a
federal district court's original federal question
jurisdiction must be posited upon the plaintiff's
pleading of his own case, and not by defendant's response
or even plaintiff's anticipation of a federal element in
Defendant has not shown that Plaintiff asserted any federal
claims in this action or that a federal question is otherwise
presented on the face of the complaint. Instead, the
underlying action-in which Plaintiff seeks to dispossess
Defendant from the subject premises-arises under state law.
See CF Lane, LLC v. Bynum, No. 1:14-cv-2167-WSD,
2014 U.S. Dist. LEXIS 94076, at *4 (N.D.Ga. July 11, 2014)
(“Plaintiff's Complaint is a dispossessory warrant
which is based solely on state law.”). Because
Defendant has not shown that the original complaint contains
a federal claim or otherwise presents a federal question, he
has not established that this Court has subject matter
jurisdiction over this action, so removal is improper. The
undersigned therefore RECOMMENDS that this
action be REMANDED to the Magistrate Court
of Cobb County.
Clerk is DIRECTED to terminate the reference
of this case to the undersigned Magistrate Judge.
IS SO ORDERED, ...