United States District Court, S.D. Georgia, Augusta Division
MAGISTRATE JUDGE'S REPORT AND
K. EFPS, UNITED STATES MAGISTRATE JUDGE
Bussey, proceeding pro se, seeks to remove to this Court a
dispossessory action filed by Plaintiff in the Magistrate
Court of Richmond County, Georgia. For the reasons set forth
below, the Court finds it lacks subject matter jurisdiction
in this matter and therefore REPORTS and RECOMMENDS the case
be REMANDED to the Magistrate Court of Richmond County and
the above-captioned civil action be CLOSED in this Court.
Defendant's landlord, filed a dispossessory affidavit in
the Magistrate Court of Richmond County on April 19, 2018.
The affidavit and summons were served on Defendant on April
24, 2018. On May 31, 2018, Defendant filed a Notice of
Removal, and sought permission to proceed in forma pauperis.
(Doc. nos. 1, 2.) Defendant asserts the case is removable
because Plaintiff violated 15 U.S.C. § 1692, Federal
Rule of Civil Procedure 60, and O.C.G.A. § 51-1-6. (Doc.
no. 1, p. 2.) Plaintiff also contends the Magistrate Court
proceedings violate the Fourteenth Amendment of the United
States Constitution. (Id.)
a defendant may remove an action from state court when the
federal court would possess original jurisdiction over the
subject matter. 28 U.S.C. § 1441(a). A removing
defendant has the burden to establish federal jurisdiction.
See Diaz v. Sheppard, 85 F.3d 1502, 1505 (11th Cir.
1996). “Subject matter jurisdiction in a federal court
may be based upon federal question jurisdiction or diversity
jurisdiction.” Walker v. Sun Trust Bank, 363
Fed.Appx. 11, 15 (11th Cir. 2010) (citing 28 U.S.C.
§§ 1331, 1332). “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 plaintiff's properly pleaded
complaint.” Caterpillar Inc. v.
Williams, 482 U.S. 386, 392 (1987). That is,
“[o]nly state-court actions that originally could have
been filed in federal court may be removed to federal court
by the defendant.” Id. (footnote omitted).
Accordingly, a counterclaim based on a federal cause of
action or a federal defense alone is not a basis for removal
jurisdiction. Vaden v. Discover Bank, 556 U.S. 49,
59-61 (2009). Plaintiff filed its action in the Magistrate
Court of Richmond County as a dispossessory action, which is
based only on state law. The complaint on its face presents
no federal question. That Defendant purports to raise a
defense based on 15 U.S.C. § 1692, Federal Rule of Civil
Procedure 60, and the Fourteenth Amendment does not confer
federal subject matter jurisdiction over this 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).
Other courts within the Eleventh Circuit have rejected
similar attempts to remove a dispossessory action that is
based only on state law. See Citibank, N.A. v.
Johnson, No. 1:14-CV-1784-WSD, 2014 WL 5019924, at *2-3
(N.D.Ga. Oct. 7, 2014).
Defendant does not raise diversity of citizenship as a basis
for federal jurisdiction, for the sake of completeness, the
Court finds no such diversity jurisdiction exists. Federal
courts have jurisdiction over “all civil actions where
the matter in controversy exceeds the sum or value of $75,
000, ” and is between “citizens of different
States.” 28 U.S.C. § 1332(a)(1). Not only has
Defendant not pled diversity of citizenship - indeed based on
the addresses of Plaintiff and Defendant on the docket, it
appears they are both residents of Georgia - but Defendant
fails to show the amount-in-controversy exceeds the $75, 000
threshold. As succinctly explained by another court:
[A] dispossessory proceeding under Georgia law is not an
ownership dispute, but rather only a dispute over 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
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). Defendant has not established
diversity of citizenship or that the value of the controversy
exceeds $75, 000.
the Court concludes Defendant has not met his burden of
establishing federal jurisdiction, and the case should be
remanded. 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
there is no subject matter jurisdiction, the Court
REPORTS and RECOMMENDS this
action be REMANDED to the Magistrate Court
of Richmond County, Georgia, and the ...