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AIGP Clifton Glen LLC v. Brandon

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

June 6, 2018

AIGP CLIFTON GLEN LLC, also known as Clifton Glen, and PROVENCE REAL ESTATE, Plaintiffs,
v.
CALVIN BRANDON, Defendant.

          OPINION AND ORDER

          WILLIAM S. DUFFEY, JR. UNITED STATES DISTRICT JUDGE

         This matter is before the Court on Magistrate Judge Alan J. Baverman's Final Report and Recommendation [4] (“R&R”), which recommends remanding this dispossessory action to the Magistrate Court of DeKalb County, Georgia.

         I. BACKGROUND

         Plaintiffs AIGP Clifton Glen and Provence Real Estate (“Plaintiffs”) initiated a dispossessory proceeding against their tenant, Defendant Calvin Brandon (“Defendant”) in the Magistrate Court of DeKalb County, Georgia.[1] The Complaint seeks possession of premises currently occupied by Defendant, plus past due rent, utilities, late fees and costs.

         On March 30, 2018, Defendant, proceeding pro se, removed the DeKalb County Action to this Court by filing his Notice of Removal[2] and an application to proceed in forma pauperis (“IFP”) [1]. Defendant appears to assert that there is federal subject-matter jurisdiction based on the existence of a question of federal law. He claims in her Notice of Removal that “Respondent” violated the Fair Debt Collection Practices Act, 15 U.S.C. § 1692. (Notice of Removal [1.1] at 1).

         On April 2, 2018, Magistrate Judge Baverman issued his R&R [4] recommending that the Court remand this case to state court. Judge Baverman found that Plaintiff's underlying pleading shows that this action is a dispossessory action, which Defendant contends violates federal law. Noting that a federal law defense or counterclaim alone is not sufficient to confer federal jurisdiction, Judge Baverman concluded that the Court does not have federal question jurisdiction over this matter. Judge Baverman also found that Defendant is citizen of Georgia ([1.2] at 1), which is the state the dispossessory proceeding was brought, and that the amount in controversy does not exceed the $75, 000 jurisdictional threshold. Judge Baverman concluded that the Court does not have diversity jurisdiction over this matter and that this case is required to be remanded to state court.

         There are no objections to the R&R.

         II. DISCUSSION

         A. Legal Standard

         After conducting a careful and complete review of the findings and recommendations, a district judge may accept, reject, or modify a magistrate judge's report and recommendation. 28 U.S.C. § 636(b)(1); Williams v. Wainwright, 681 F.2d 732, 732 (11th Cir. 1982) (per curiam). A district judge “shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1). With respect to those findings and recommendations to which a party has not asserted objections, the Court must conduct a plain error review of the record. United States v. Slay, 714 F.2d 1093, 1095 (11th Cir. 1983) (per curiam).

         B. Analysis

         Defendant does not object to the R&R's conclusions that Plaintiff's Complaint does not present a federal question and that the parties are not diverse. The Court does not find any error in these conclusions. It is well-settled that federal-question jurisdiction exists only when a federal question is presented on the face of a plaintiff's well-pleaded complaint and that the assertions of defenses or counterclaims based on federal law cannot confer federal question jurisdiction over a cause of action. See Beneficial Nat'l Bank v. Anderson, 539 U.S. 1, 6 (2003); Holmes Group, Inc. v. Vornado Air Circulation Sys., Inc., 535 U.S. 826, 830-32 (2002). The record also does not show that Plaintiff and Defendant are citizens of different states, or that the amount in controversy exceeds the statutory threshold of $75, 000. See 28 U.S.C. § 1332(a); 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. 29, 2008) (“[A] dispossessory proceeding under Georgia law is not an ownership dispute, but rather only a dispute over the limited right to possession, title to 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.”).

         Because the Court lacks both federal question and diversity jurisdiction, this action is required to be remanded to the state court. See 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.”).[3]

         III. ...


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