United States District Court, N.D. Georgia, Atlanta Division
LAKESIDE 358, LLC, agent of Lakeside at Town Center Apts., Plaintiff,
ELDRIDGE COCHRAN and All Other Occupants, Defendant.
FINAL REPORT AND RECOMMENDATION
F. KING UNITED STATES MAGISTRATE JUDGE.
above-styled case is before the undersigned on Defendant
Eldridge Cochran's application to proceed in forma
pauperis. [Doc. 1]. The court, for the purpose of
remand, GRANTS Defendant's motion. The
court has the responsibility “to review the
Defendant's notice of removal to determine whether it
meets the requirements of the statute.” Alabama v.
Baker, 222 F.Supp.2d 1296, 1297-98 (M.D. Ala. 2002).
“If at any time before final judgment it appears that
the district court lacks subject matter jurisdiction, ”
28 U.S.C. § 1447(c) (amended 2011) requires that
“the case shall be remanded.” Upon making this
review, the court finds that it does not and recommends
Lakeside 358, LLC, agent of Lakeside at Town Center
Apartments, the owner of real property commonly known as 425
Williams Drive, Apt. 124, Marietta, Georgia 30066, filed a
proceeding against tenant holding over in the Magistrate
Court of Cobb County, Georgia, on or about October 18, 2018,
against Defendant Eldridge Cochran and all other occupants
for failure to pay rent which is now past due. [Doc. 1-1 at 3
(“Dispossessory Proceeding”)]. On October 25,
2018, Defendant filed a notice of removal and federal stay.
U.S.C. § 1441(a) provides that “any 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. §
1441(a). 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). See also Arbaugh v. Y & H
Corp., 126 S.Ct. 1235, 1244 (2006) (all federal courts
“have an independent obligation to determine whether
subject-matter jurisdiction exists, even in the absence of a
challenge from any party”). “[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
(11thCir. 2001). “[U]ncertainties are
resolved in favor of remand.” Burns v. Windsor Ins.
Co., 31 F.3d 1092, 1095 (11th Cir. 1994).
bases his petition for removal of Plaintiff's
dispossessory proceeding on the court's federal question
jurisdiction, citing 28 U.S.C. § 1334, 15 U.S.C. §
1692 and 42 U.S.C. § 3631, as grounds for removal.
[Removal]. “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. . . . 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, 107 S.Ct.
2425, 2429 (1987) (citations omitted). Potential defenses
involving the Constitution or laws of the United States are
ignored. Beneficial Nat'l Bank v. Anderson, 123
S.Ct. 2058, 2062 (2003).
present case, Plaintiff relied exclusively on state law when
filing the dispossessory action in the Magistrate Court of
Cobb County. [Dispossessory Proceeding]. A dispossessory
action is brought pursuant to O.C.G.A. § 44-7-50.
See Citimortgage, Inc. v. Dhinoja, 705 F.Supp.2d
1378, 1381 (N.D.Ga. 2010); Ikomoni v. Executive Asset
Management, LLC, 309 Ga.App. 81, 84, 709 S.E.2d 282, 286
(March 16, 2011) (“‘The exclusive method
whereby a landlord may evict a tenant is through a properly
instituted dispossessory action filed pursuant to OCGA §
44-7-50 et seq.'”) (citation omitted)
(emphasis added); see Fennelly v. Lyons, 333 Ga.App.
96, 100, 775 S.E.2d 587, 592 (2015) (same). “This is an
action for possession of premises and past due rent, which
are decidedly state-law claims.” Retreat LLC v.
Chisolm, 2018 WL 3080085, at *4 (N.D.Ga. May 23, 2018),
report and recommendation adopted by, 2018 WL
3067843 (N.D.Ga. June 20, 2018). Defendant alleges that
removal is proper on the basis of federal question
jurisdiction, and in the Notice of Removal, he summarily
asserts that Plaintiff violated the Fair Housing Act, 42
U.S.C. § 3631, and the Fair Debt Collection Practices
Act (“FDCPA”), 15 U.S.C. § 1592, in bringing
the dispossessory action. [Removal]. However, no federal
question is presented on the face of Plaintiff's
well-pleaded complaint. [Dispossessory Proceeding]. And,
“[t]o the extent that Defendant is trying to assert as
a defense that Plaintiff violated the FDCPA or § 3631, .
. . a federal question presented as a defense is not a proper
basis for removal of a state-court complaint to federal
court.” Chisolm, 2018 WL 3080085, at *4;
and see Snellings v. Smith, 2017 WL 1396172, at *2
n.3 (N.D.Ga. April 19, 2017) (finding general allegation of
denial of fair housing rights insufficient under 28 U.S.C.
§ 1443 to remove dispossessory action); Myers Team
Mgmt. v. Manning, 2017 WL 117141, at *2 n.3 (N.D.Ga.
January 12, 2017) (same) (listing cases); BRK Nesbit
Ferry, L.P. v. Sherman, 2017 WL 8186621, at *2 (N.D.Ga.
January 10, 2017), report and recommendation adopted
by, 2017 WL 8186710 (N.D.Ga. February 8, 2017)
there is also no evidence which warrants the application of
an exception to the well-pleaded complaint rule, such as the
doctrine of complete preemption. Caterpillar, 107
S.Ct. at 2430.
there is no evidence that Defendant could establish
jurisdiction based on diversity. To do so, Defendant would
have to show that there is complete diversity of citizenship
between Defendant and Plaintiff and that the amount in
controversy exceeds $75, 000.00. See 28 U.S.C.
§ 1332(a)(1). Defendant offers no evidence of diversity
of citizenship and, in fact, on the Civil Cover Sheet,
indicates that he and Plaintiff are citizens of the State of
Georgia. [Doc. 1-2]. And, as to damages, Plaintiff's
dispossessory proceeding seeks the ejectment of Defendant
from the property due to failure to pay past due rent of
approximately $1, 344.39 and rent accruing to the date of
judgment or vacancy at a rate of $45.87 per day with other
fees and costs of the action totaling less than $1, 000.00.
[Dispossessory Proceeding]. Again, the court looks to
Plaintiff's claim to determine whether removal
jurisdiction is appropriate. See Burns, 31 F.3d at
1095; Novastar Mortg., Inc. v. Bennett, 173
F.Supp.2d 1358, 1361 (N.D.Ga. 2001). The face of the
complaint shows that the amount in controversy does not
exceed the $75, 000.00 required for the court to have
diversity jurisdiction as a basis for removal.
these reasons, the court finds that federal jurisdiction does
not exist and that this action should be remanded pursuant to
28 U.S.C. § 1447(c).
extent that Defendant seeks a stay of the dispossessory
proceedings and/or eviction, he is not entitled to a stay.
See American Homes 4 Rent Properties Eight, LLC v.
Dynott, 2015 WL 5920130, at *2 & n.4 (N.D.Ga.
October 8, 2015) (denying the defendant's motion to stay
state court dispossessory proceedings as moot because court
lacked subject-matter jurisdiction and noting that,
“[e]ven if subject-matter jurisdiction existed, the
Court [would be] unable to grant Defendant the relief he
seeks - a stay of state court eviction proceedings - because
a federal court is prohibited under the Anti-Injunction Act .
. . from enjoining a state court eviction proceeding”);
U.S. Bank National Ass'n v. Sanders, 2015 WL
1568803, at *3 (N.D.Ga. April 7, 2015) (“Because this
action is required to be remanded, Defendant's . . .
Motion to Stay . . . [should be] denied.”); and see
CF Lane, LLC v. Stephens, 2014 WL 1572472, at *2
(N.D.Ga. April 17, 2014) (“this Court cannot enjoin a
state court action for eviction”).
because Defendant Cochran failed to demonstrate any lawful
basis for removal of this action to this court, IT IS
RECOMMENDED that this action be
REMANDED to the ...