United States District Court, N.D. Georgia, Atlanta Division
MAGISTRATE JUDGE'S ORDER AND FINAL REPORT AND
T. WALKER UNITED STATES MAGISTRATE JUDGE
above-styled case is before the undersigned on pro se
Petitioner Torraye Braggs' request to remove a civil
action in forma pauperis, without prepayment of fees and
costs or security therefor (Doc. 1), pursuant to 28 U.S.C.
§ 1915(a)(1). The Affidavit of Poverty indicates that
Braggs is unable to pay the filing fee or incur the costs of
these proceedings. Thus, the requirements of 28 U.S.C. §
1915(a)(1) have been satisfied, and Braggs' application
to proceed in forma pauperis is GRANTED. (Doc. 1). For the
reasons outlined below, this Court RECOMMENDS that this
action be REMANDED pursuant to 28 U.S.C. § 1447(c) to
the Magistrate Court of Fulton County.
March 27, 2018, pursuant to Georgia law, Plaintiff Najarian
Capital LLC ("Najarian Capital") filed a
dispossessory proceeding in the Magistrate Court of Fulton
County, State of Georgia, in an attempt to evict Defendant
Torraye Braggs. (Doc. 1-1, at 10). Braggs removed the matter
to this Court and appears to be asserting federal defenses or
counterclaims against Najarian Capital in his petition for
removal. Braggs also appears to argue this Court has federal
question jurisdiction over the matter on the grounds that his
defenses or counterclaims invoke the Ninth, Eleventh,
Thirteenth, and Fourteenth Amendments, the Supremacy Clause
of the United States Constitution, the International Covenant
on Civil and Political Rights, as well as the Universal
Declaration of Human Rights. Braggs has removed this matter
pursuant to 28 U.S.C. 1441(b), (c), and (e), as well as 28
U.S.C. §§ 1443(1), (2).
defenses and counterclaims under federal law do not give him
the authority to remove this action. First, 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. § 144 7(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 Cir. 1994).
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. 3 86, 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 (2003).
case, Najarian Capital relied exclusively on state law
'hen it initiated a dispossessory proceeding in the
Magistrate Court of Fulton County to seek possession of
Braggs' residence. (Doc. 1-1, at 11). No federal question
is presented on the face of Najarian Capital'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. In Bragg's Notice of Removal, Braggs
cursorily alleges Najarian Capital violated the Ninth,
Eleventh, Thirteenth, and Fourteenth Amendments, the
Supremacy Clause of the United States Constitution, the
International Covenant on Civil and Political Rights, and the
Universal Declaration of Human Rights. (Doc. 1-1, at 2). A
federal question present in a counterclaim or a defense,
however, 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).
diversity of citizenship does not provide a basis for removal
in this case. A party removing a case to federal court based
on diversity of citizenship bears the burden of establishing
that the parties are diverse and 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
Braggs' Petition for Removal nor Najarian Capital's
Complaint includes any facts showing that the parties are
diverse or that the $75, 000 jurisdictional threshold is met.
Najarian Capital simply seeks possession of the rental
premises and past due rent in an amount that falls well below
the jurisdictional threshold. (Doc. 1-1, at 10). 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); Novastar Mortg., Inc. v.
Bennett, 173 F.Supp.2d 1358, 1361-62 (N.D.Ga. 2001),
aff'd 35 Fed.Appx. 858 (11th Cir. 2002). Thus, Najarian
Capital's Complaint does not satisfy the amount in
removal jurisdiction is not conferred by either Subsection
(c) or (e) of 28 U.S.C. § 1441. Subsection (c) does not
provide an independent basis for removal; instead, it merely
permits the removal of an entire case when a claim that is
removable on the basis of federal question jurisdiction is
joined with otherwise non-removable causes of action. The
procedure requires that non-removable claims must be severed
and remanded back to the state court from which the case was
removed. 16 James Wm. Moore et al., Moore's Federal
Practice Â¶ 107.14(2)(1) (3d ed. 2014); Hawkins v.
Cotrell, Inc., 785 F.Supp.2d 1361, 1376 (N.D.Ga. 2011).
As discussed above, Najarian Capital's dispossessory
action does not include any federal claims. Likewise, Title
28, Section 1441 (e) does not apply under the circumstances.
Title 28, Section 1441 (e) only allows a defendant sued in
state court to remove an action that could have been brought
in federal court under Title 28, Section 1369(a), as a civil
action involving minimal diversity between adverse parties
that arises from a single accident where at least
seventy-five natural persons have died in a
discrete location, and that meets Section l 369's other
conditions.1 This dispossessory action is clearly not such a
case. Hansen v. Bank of New York Mellon, No.
H-14-0156, 2014 WL 1572524, at *2 n.3 (S.D. Tex. Apr. 18,
2014); PNC Bank, Nat'l Ass'n v. Cook, No.
1:12CV930, 2013 WL 4832818, at *3 (S.D. Ohio Sept. 11, 2013).
also attempts to invoke jurisdiction pursuant to 28 U.S.C.
§ 1443. Section 1443, however, does not provide Braggs
with a valid basis for removal jurisdiction. Title 28,
Section 1443(1) of the United States Code allows for removal
by a state court defendant "who is denied or cannot
enforce in the courts of such state a right under any law
providing for the equal civil rights of citizens of the
United States, or of all persons with the jurisdiction
thereof." 28 U.S.C. § 1443. In order to remove
under Section 1443, however, Braggs must satisfy a two
pronged test. First, Braggs must show that "the right
upon which [he] relies arises under a federal law providing
for specific civil rights stated in terms of racial
equality." Wells Fargo Bank, N.A. v. Henley,
198 Fed.Appx. 829, 830 (11th Cir. 2006). Second, Braggs
"must show that [he] has been denied or cannot enforce
that right in the state courts." Cent. Mortg. Co. v.
Laskos, 561 Fed.Appx. 827, 829 (11th Cir. 2014);
Henley, 198 Fed.Appx. at 830.
Petition for Removal falls short of establishing his basis
for removal under Section 1443(1). In order to satisfy the
first requirement, the law invoked must provide for specific
civil rights stated in terms of racial equality.
Laskos, 561 Fed.Appx. at 829. Broad allegations
under constitutional provisions such as the Bill of Rights or
the Fourteenth Amendment cannot support a valid claim for
removal under Section 1443. Laskos, 561 Fed.Appx. at
829; Taylor v. Phillips, 442 Fed.Appx. 441, 443
(11th Cir. 2011). Braggs' petition fails to establish his
entitlement to removal under the first prong because he
relies on rights of general application available to all
persons or citizens and broad allegations of violations of
constitutional provisions without including any factual
detail. Taylor, 442 Fed.Appx. at 443. Although
Braggs' Petition for Removal references various
Amendments of the United States Constitution, the
International Covenant on Civil and Political Rights, and the
Universal Declaration of Human Rights, it is not apparent
from the face of Braggs' petition that any of his
counterclaims or defenses invoke racial equality. Braggs does
not allege Najarian Capital discriminated against him on the
basis of his race, and Braggs fails to present any factual
allegations that show that he suffered racial inequality.
Second, even assuming Braggs' broad assertions that
Najarian Capital's actions violated the Bill of Rights;
Ninth, Eleventh, Thirteenth, and Fourteen Amendments; the
International Covenant on Civil and Political Rights; and the
Universal Declaration of Human Rights established the first
prong, Braggs still cannot establish his entitlement to
removal under Subsection 1443(1) because Braggs has not
identified any law or policy of the State of Georgia which
has rendered Braggs unable to enforce his federal rights.
Laskos, 561 Fed.Appx. at 829. This prong normally
requires that the denial be "manifest in a formal
expression of the state law." Taylor, 442
Fed.Appx. at 442; Ala. v. Conley, 245 F.3d
1292, 1296 (11th Cir. 2001). Blanket assertions that a
defendant is unable to obtain a fair trial in state court are
insufficient to support removal. Taylor, 442
Fed.Appx. at 442-43.
burden is on the party who sought removal to demonstrate that
federal jurisdiction exists. Adventure Outdoors,
Inc. v. Bloomberg, 552 F.3d 1290,
1294-95 (11th Cir. 2008). As such, the removing party's
burden extends to making and supporting the arguments
necessary to sustain removal. Ervast v. Flexible Prods.
Co., 346 F.3d 1007, 1017 n.4 (11th Cir. 2003) (declining
to consider argument concerning diversity jurisdiction,
raised for the first time in petitioner's appellate
brief, because petitioner had "the burden to plead this
basis in its notice of removal"); Bank of New York
Mellon v. Beccan, No. 1: 12-CV-01392-RWS, 2013 WL
3990753, at *3 (N.D.Ga. Aug. 1, 2013) (rejecting Section 1443
as a basis for removal of dispossessory action because
defendant did not provide any factual basis supporting
removal under Section 1443); Akan Inv.,
LLC v. C-D Jones & Co., Inc., No. 09-0492-WS-N,
2009 WL 2762828, at *7 (S.D. Ala. Aug. 27, 2009) (noting that
when the defendants elected to support removal under one
legal authority, they risked remand if the court disagreed
that the authority provided a basis for removal and no duty
devolved upon the court to conduct additional legal research
or construct additional arguments on the defendant's
behalf). Braggs' Petition therefore, is not sufficient to
meet his burden of showing that removal under Section 1443 is
authorized in this case. See, e.g., Henley,
198 F.App'x at 830-31 (rejecting removal of dispossessory
action pursuant to Section 1443 because defendant's claim
was not based on the denial of civil rights stated in terms
of racial equality); St. James Assoc. v. Larsen, 67
Fed.Appx. 684, 686 (3d Cir. 2003) (rejecting Section 1443(1)
as a basis of removal for ejectment action even where the
defendant alleged a violation of the Fair Housing Act because
the plaintiff did not allege racial discrimination);
Beccan, 2013 WL 3990753, at *3; Sky Lake Gardens
No. 3, Inc. v. Robinson, No. 96-1412, 1996 WL 944145, at
*5 (S.D. Fla. 1996) (rejecting Section 1443 as a basis for
removal of action where defendant's Fair Housing Act
counterclaim was predicated on familial status
Court also concludes that the action was not properly
removable to federal district court under Section 1443(2),
which provides for removal of a civil action involving
"any act under color of authority derived from any law
providing for equal rights, or for refusing to do any act on
the ground that it would be inconsistent with such law."
28 U.S.C. § 1443(2). The Eleventh Circuit has explained
that the first clause under Section 1443(2), concerning
"any act under color of authority," confers the
right to remove only upon "federal officers or agents
and those authorized to act with or for them in affirmatively
executing duties under any federal law providing for equal
civil rights." Taylor, 442 Fed.Appx. at 443,
citing City of Greenwood v. Peacock,384 U.S. 808,
824 (1966). The second clause, concerning refusal to do any
act on the ground that it would be inconsistent with laws
providing for equal rights, allows the right to remove only
to state officers. Taylor, 442 Fed.Appx. at 443.
Braggs' allegations within his petition for removal do
not reflect that he is a state or federal officer who was
either executing duties under federal law or refusing to do
on an act on the ground that it would be inconsistent with
equal rights ...