United States District Court, N.D. Georgia, Atlanta Division
THE BANK OF NEW YORK MELLON, as Trustee, f/k/a The Bank of New York, successor in interest to JP Morgan Chase Bank, N.A., Plaintiff,
JAMES GOODWIN, Defendant.
OPINION AND ORDER
WILLIAM S. DUFFEY, JR. UNITED STATES DISTRICT JUDGE.
matter is before the Court on Magistrate Judge Justin S.
Anand's Final Report and Recommendation  (“Final
R&R”), which recommends remanding this action to
the Magistrate Court of DeKalb County. Also before the Court
is Defendant James Goodwin's (“Defendant”)
Motion to Stay .
in July 2017, Plaintiff The Bank of New York Mellon, as
Trustee, f/k/a The Bank of New York, successor in interest to
JP Morgan Chase Bank, N.A., (“Plaintiff”)
initiated a dispossessory proceeding against its tenant,
Defendant, in the Magistrate Court of DeKalb County, Georgia
(the “DeKalb County Action”) to evict him after a
foreclosure sale. On April 30, 2018, Defendant, proceeding
pro se, filed his Notice of Removal removing the
DeKalb County Action to this Court. (See [1.1]).
Defendant appears to assert that federal subject matter
jurisdiction exists because there is a question of federal
law in this action. Defendant states specifically that the
dispossessory proceedings occurred “in violation of the
Federal Protecting Tenants Act Foreclosure Act Sec. 702,
15USC 1692(a) and the Fourteenth Amendment of the United
States Constitution.” ([1.1] at 1).
1, 2018, the Magistrate Judge issued his Final R&R
recommending that the case be remanded to the Magistrate
Court of DeKalb County for lack of subject matter
jurisdiction. The parties did not file objections to the
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 (11th Cir. 1982), cert. denied, 459 U.S.
1112 (1983). 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
objections have not been asserted, the Court must conduct a
plain error review of the record. United States v.
Slay, 714 F.2d 1093, 1095 (11th Cir. 1983), cert.
denied, 464 U.S. 1050 (1984). Where, as here, the
parties have not filed objections to the R&R, the Court
reviews it for plain error.
courts “have an independent obligation to determine
whether subject-matter jurisdiction exists, even in the
absence of a challenge from any party.” Arbaugh v.
Y&H Corp., 546 U.S. 500, 501 (2006). The Eleventh
Circuit consistently has held that “a court should
inquire into whether it has subject matter jurisdiction at
the earliest possible stage in the proceedings. Indeed, it is
well settled that a federal court is obligated to inquire
into subject matter jurisdiction sua sponte whenever
it may be lacking.” Univ. of S. Ala. v. Am. Tobacco
Co., 168 F.3d 405, 410 (11th Cir. 1999). “Federal
courts exercise limited jurisdiction and generally can hear
only actions that either meet the requirements for diversity
jurisdiction or that involve a federal question.”
Kivisto v. Kulmala, 497 Fed.Appx. 905, 906 (11th
Cir. 2012). Diversity jurisdiction exists where the amount in
controversy exceeds $75, 000 and the suit is between citizens
of different states. 28 U.S.C § 1332(a).
“[F]ederal-question jurisdiction may be based on a
civil action alleging a violation of the Constitution, or
asserting a federal cause of action established by a
congressionally created expressed or implied private remedy
for violations of a federal statute.” Jairath v.
Dyer, 154 F.3d 1280, 1282 (11th Cir. 1998).
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
plaintiff's 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.
386, 392 (1987) (citations omitted); see Novastar Mortg.
Inc. v. Bennett, 173 F.Supp.2d 1358, 1361 (N.D.Ga. 2001)
(“[T]he court must look only to the plaintiff's
claim as a basis for federal jurisdiction.”).
“[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). “[U]ncertainties
are resolved in favor of remand.” Burns v. Windsor
Ins. Co., 31 F.3d 1092, 1095 (11th Cir. 1994).
Magistrate Judge found that, upon review of the record,
“Defendant has not established federal question
jurisdiction.” ( at 2). The Magistrate Judge stated
that “[i]nstead, Defendant's Notice of Removal
indicates that Plaintiff's action in the Magistrate Court
of DeKalb County is a dispossessory action to evict Defendant
after a foreclosure sale. (Id. at 3). The Magistrate
Judge found further that “Defendant has not identified
any federal question that Plaintiff's state-court
dispossessory action raises, ” and that “[t]o the
extent  Defendant is attempting to remove this action by
asserting defenses or counterclaims that invoke federal
statutes or the federal Constitution, that basis of removal
is also improper.” (Id.); see also
Citimortgage, Inc. v. Dhinoja, 705 F.Supp.2d 1378, 1381
(N.D.Ga. 2010) (citation omitted) 1381 (“If a federal
question is not presented on the face of the complaint, it is
no substitute that the defendant is almost certain to raise a
federal defense.”). The Magistrate Judge noted finally
that Defendant has not properly alleged facts supporting
diversity jurisdiction. (Id. at 4).
therefore has not shown that the Court has subject matter
jurisdiction over this state dispossessory proceeding, and
this action is required to be remanded to the Magistrate
Court of Cobb County, Georgia. Dhinoja, 705
F.Supp.2d 1378 (finding that the court lacked federal
jurisdiction over a state dispossessory action, after it had
been removed, and remanding to state court for further
proceedings). The Court finds no plain error in the
Magistrate Judge's findings and recommendations.