United States District Court, N.D. Georgia, Atlanta Division
MAGISTRATE JUDGE'S ORDER AND REPORT AND
T. WALKER UNITED STATES MAGISTRATE JUDGE.
Mikki R. Haynes-Manning ("Defendant") seeks to
remove a dispossessory case from DeKalb County Magistrate
Court without prepayment of fees and costs, pursuant to 28
U.S.C. § 1915(a)(1). (Doc. 1). Defendant's Affidavit
states that Defendant's gross monthly income is $3, 350
and Defendant has $3, 500 in cash. (Doc. 1, pp. 1-2).
Defendant did not provide any information about her
employment history, bank accounts, assets, debts, dependents,
or monthly expenses. (Doc. 1, pp. 2- 5). "A trial court
has wide discretion in determining whether to grant or deny a
motion fled pursuant to § 1915." Countrywide Home
Loans, Inc. v. Arazo, No. No. 8:10-CV-0412-T-30EAJ,
2010 WL 962948, at *1 (M.D. Fla. Feb. 23, 2010), adopted by
2010 WL 962951, at *l (M.D. Fla. Mar. 16, 2010) (citing
Martinez v. Kristi Kleaners, Inc., 364 F.3d 1305,
1306 (11th Cir. 2004) (per curiam). Although Defendant's
Affidavit fails to demonstrate her inability to afford the
filing fee, even if Defendant could submit a sufficient
Affidavit, the Court would still be required to remand the
case for lack of subject matter jurisdiction. Therefore, in
the interests of judicial efficiency, Defendant's
Application for Leave to Proceed informa pauperis is
GRANTED (Doc. 1), and the Court RECOMMENDS that this action
be REMANDED pursuant to 28 U.S.C. § 1447(c) to DeKalb
County Magistrate Court.
around August 8, 2018, Plaintiff Victor Warren Properties,
Inc. ("Plaintiff) fled a dispossessory proceeding
against Defendant in DeKalb County Magistrate Court, alleging
that she is a tenant at sufferance. (Doc. 1-1, p. 3).
Defendant seeks to remove the case, asserting that the Court
has jurisdiction over the matter because Plaintiffs
dispossessory action violates the Due Process Clause. (Doc.
1-1, p. 1).
on this Court's review of the pleadings, it is clear that
removal was improper because the Court lacks subject matter
jurisdiction over the instant lawsuit. It is the Court's
duty to inquire into its subject matter jurisdiction sua
sponte whenever it may be lacking. Hernandez v.
Att'y Gen., 513 F.3d 1336, 1339 (11th Cir. 2008).
The general removal statute, 28 U.S.C. § 1441, does not
provide a basis for removal in this case. Title 28, Section
144l(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. § 144l(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 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. § 1447(c). "[I]n removal
cases, the burden is on the party who sought removal to
demonstrate that fderal jurisdiction exists."
Kirkland v. Midland Mortg. Co.. 243 F.3d 1277, 1281
n.5 (11th Cir. 2001) (citation omitted). "[Uncertainties
are resolved in favor of remand." Burns v. Windsor
Ins. Co.. 31 F.3d 1092, 1095 (11th Cir. 1994).
readily apparent to this Court that 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. 386, 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'! Bank v. Anderson, 539
U.S. 1, 6 (2003).
case, Plaintiff relied exclusively on state law when it
initiated a dispossessory proceeding in DeKalb County
Magistrate Court, seeking possession of Defendant's
residence. (Doc. 1-1, p. 3). No. federal question is
presented on the face of Plaintiffs 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. Although Defendant argues the matter is
removable on the grounds that the dispossessory action
violated the Due Process Clause, a federal question present
in a counterclaim or a defense 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).
the facts presented in this case support diversity
jurisdiction. A party removing a case to federal court based
on diversity of citizenship bears the burden of establishing
that the citizenship of the parties is diverse and that 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 Defendant's Petition for
Removal nor Plaintiffs Complaint indicate that the parties
are diverse or that the $75, 000 jurisdictional threshold is
met. Plaintiff is only seeking possession of the premises.
(Doc. 1-1, p. 3). 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, 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),
affd 35 Fed.Appx. 858 (11th Cir. 2002). Moreover, the value
of the property has no bearing on whether the jurisdictional
threshold has been met for the purposes of determining the
amount in controversy. See Fed. Home Loan Mortg. Corp. v.
Williams. Nos. 1-07-cv-2864-RWS and 1-07-cv-2865-RWS,
2017 WL 115096, at *2 (N.D.Ga. Jan. 9, 2008) (holding that a
defendant seeking to remove a matter may not rely on the
value of the property as a whole to satisfy the amount in
controversy requirement because a dispossessory proceeding in
Georgia is only a dispute over the limited right to
possession, not an ownership dispute over title to the
property); see also Steed v. Fed. Nat'l Mortg.
Corp.. 301 Ga.App. 801, 805 (Ga.Ct.App. 2009). Because
Defendant has not established a basis for the Court to
exercise removal jurisdiction, the undersigned RECOMMENDS
that this action be REMANDED pursuant to 28 U.S.C. §
1447(c) to the DeKalb County Magistrate Court.
Application for Leave to Proceed informa pauperis is
GRANTED. (Doc. 1). The Court RECOMMENDS that this action be
REMANDED pursuant to 28 U.S.C. § 1447(c) to the DeKalb
County Magistrate Court. As this is a final Report and
Recommendation and there are no other matters pending ...