United States District Court, N.D. Georgia, Atlanta Division
ELEMENT MANAGEMENT, as agent for Grove at Stone Brook Apartments Plaintiff,
MELINDA THORNTON, Defendant.
OPINION AND ORDER
WILLIAM S. DUFFEY, JR. UNITED STATES DISTRICT JUDGE.
matter is before the Court on Magistrate Judge J. Clay
Fuller's Final Report and Recommendation 
(“Final R&R”), which recommends remanding
this action to the Magistrate Court of Gwinnett County,
Georgia. Also before the Court are Defendant's Objections
and Responses to Report and Recommendation Pursuant to 28
U.S.C. 636(b)(1)  (“Objections”).
January 9, 2018, Plaintiff Element Management, as agent for
Grove at Stone Brook Apartments (“Plaintiff”)
initiated a dispossessory proceeding against Defendant
Melinda Thornton (“Defendant”), in the Magistrate
Court of Gwinnett County, Georgia (the “Gwinnett County
Action”). On January 30, 2018, Defendant, proceeding
pro se, filed an IFP Application  and Notice of
Removal [1.1] seeking to remove the Gwinnett County Action.
Defendant seeks removal on the grounds that Plaintiffs
violated the Fair Debt Collection Practices Act
(“FDCPA”), 15 U.S.C. § 1692 et seq.
([1.1] at 1-2).
February 1, 2018, the Magistrate Judge issued his Final
R&R, recommending that this action be remanded to the
Magistrate Court of Gwinnett County for lack of subject
matter jurisdiction. On February 16, 2018, Defendant filed
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). If a petitioner does not
specifically object to any of the Magistrate Judge's
findings or recommendations, the Court reviews the report and
recommendation for plain error. Id.; see also
Marsden v. Moore, 847 F.2d 1536, 1548 (11th Cir. 1988).
Because Defendant's Objections lack specificity, the
Court reviews the Final R&R 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). “The
removing party bears the burden of proof regarding the
existence of federal subject matter jurisdiction.”
City of Vestavia Hills v. Gen. Fidelity Ins. Co.,
676 F.3d 1310, 1313 n.1 (11th Cir. 2012).
Magistrate Judge found “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.” ( at 4). “Instead, the [Magistrate
Judge found the] underlying action-in which Plaintiff seeks
to dispossess Defendant from the subject premises-arises
under state law.” (Id.). The Magistrate Judge
concluded that “[b]ecause Defendant has not shown that
the original complaint contains a federal claim or otherwise
presents a federal question, she has not established that
this Court has subject matter jurisdiction over this action,
so removal is improper.” (Id.). The Court
finds no plain error in the Magistrate Judge's findings
foregoing reasons, IT IS HEREBY ORDERED that
Magistrate Judge J. Clay Fuller's Final Report and
Recommendation  is ADOPTED.
IS FUTHER ORDERED that Defendant's Objections
and Responses to Report and Recommendation ...