United States District Court, N.D. Georgia, Atlanta Division
LAUREL RIDGE AT WASHINGTON RD LP, doing business as Leyland Pointe Apts, Plaintiff,
CECILY GAILLARD, and All Others, Defendant.
ORDER AND FINAL REPORT AND RECOMMENDATION
K. LARKINS III UNITED STATES MAGISTRATE JUDGE.
matter is before the Court on Defendant Cecily Gaillard's
application for leave to proceed in forma pauperis
(“IFP”) on her notice of removal of a state
dispossessory action to this Court. [Doc. 1.] Gaillard has
not signed her application for leave to proceed IFP.
Moreover, the income and expenses typed on the application
are identical to items listed on at least one other
application that has been submitted to the Court recently.
See N.D.Ga. ECF No. 1:18-cv-4845-LMM. Without more
information and a properly completed IFP application, the
Court cannot conclude that Gaillard meets the requirements
for proceeding IFP pursuant to 28 U.S.C. § 1915(a).
Nevertheless, because it is clear that this Court does not
have subject matter jurisdiction over the removal action, and
to avoid further delay of these proceedings, I
GRANT her request to proceed IFP for the
limited purpose of remand. I also RECOMMEND
that this case be REMANDED to the Magistrate
Court of Fulton County.
underlying dispossessory action, Plaintiff Laurel Ridge at
Washington Road LP (“Laurel Ridge”) alleged that
Gaillard failed to pay the rent for leased premises in East
Point, Georgia for the month of October 2018. [Doc. 1-1 at
11.] Laurel Ridge demanded possession of the premises, past
due rent of $945, current rent accruing at a rate of $945,
and $50 in other fees. [Id.]
notice of removal, Gaillard argues that the Court has federal
question, diversity, and supplemental jurisdiction over the
action. [Doc. 1-1 at 1-3, 5.] She also relies on the federal
courts' multiparty, multiforum jurisdiction and their
jurisdiction over civil rights cases under 28 U.S.C. §
1443. [Id. at 1, 5-6.] Moreover, Gaillard alleges,
her rights to a jury trial, to a fair trial, and to equal
protection have been violated in state court. [Id.
at 5 & n. 1.]
“any 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 defendants,
to the district court of the United States.” 28 U.S.C.
§ 1441(a). Here, however, the underlying case is a state
dispossessory action containing no federal claim. [Doc. 1-1
at 11.] Thus, removal based on federal question jurisdiction
under 28 U.S.C. § 1331 is improper. See Beneficial
Nat'l Bank v. Anderson, 539 U.S. 1, 6 (2003)
(“As a general rule, absent diversity jurisdiction, a
case will not be removable if the complaint does not
affirmatively allege a federal claim.”); see also
U.S. Bank Nat'l Ass'n v. Sanders, No. 1:13-cv-
357-WSD, 2015 WL 1568803, *3 (N.D.Ga. Apr. 7, 2015). Even if
Gaillard wishes to raise counterclaims based on
constitutional rights and federal statutes, this Court may
look only to the complaint itself to determine whether there
is federal question jurisdiction over the action. See
Anderson, 529 U.S. at 6.
also clear to the Court that there is no diversity
jurisdiction under 28 U.S.C. § 1332(a). Laurel
Ridge's dispossessory claim against Gaillard cannot be
reduced to a monetary sum for purposes of satisfying the
amount-in-controversy requirement in § 1332(a).
See 28 U.S.C. § 1332(a); Citimortgage, Inc.
v. Dhinoja, 705 F.Supp.2d 1378, 1382 (N.D.Ga. 2010)
(holding that only the plaintiff's claim may satisfy the
amount-in-controversy requirement, and an action seeking
ejectment cannot be reduced to a monetary sum for purposes of
determining the amount in controversy). Further, the demand
for rent was well below $75, 000. Thus, the amount in
controversy in § 1332(a) is not met. See 28
U.S.C. § 1332(a).
Gaillard's argument that this Court has jurisdiction over
the dispossessory case under the provisions in § 1443
for the removal of civil rights cases, § 1443(1)
provides that a defendant may remove a case initiated in
state court if she is “denied or cannot enforce in the
courts of such State a right under any law providing for the
equal civil rights of the United States, or of all persons
within the jurisdiction thereof.” 28 U.S.C. §
1443(1). A notice of removal under § 1443(1) must show
that the right on which the defendant relies arises under
federal law “providing for specific civil rights stated
in terms of racial equality, ” and the defendant has
been denied or cannot enforce that right in state court.
Alabama v. Conley, 245 F.3d 1292, 1295 (11th Cir.
extent that Gaillard seeks to proceed under § 1443(1),
she argues that she was denied a jury trial in state
magistrate court and generally cites her rights to equal
protection and a fair trial. [Doc. 1-1 at 5 & n.1.] These
assertions cannot support a claim for removal because §
1443(1) only applies to “specific civil rights stated
in terms of racial equality.” See Conley, 245
F.3d at 1295; see also Id. at 1295-96 (“[A]
defendant's right to a fair trial and equal protection of
the laws . . . do[es] not arise from legislation providing
for specific civil rights in terms of racial equality[.]
Therefore, to the extent [that petitioner] relies upon broad
assertions under the Equal Protection Clause . . ., those
rights are insufficient to support a valid claim for removal
under § 1443(1).” (quotation omitted)).
also cannot proceed under § 1443(2), which provides a
right of removal “[f]or any act under color of
authority derived from any law providing for equal rights, or
for refusing to do any act on the ground that it would be
inconsistent with such law.” 28 U.S.C. § 1443(2).
The Supreme Court has held that the first clause in §
1443(2)-referring to “any act under color of
authority”-confers the right to remove only upon
“federal officers or agents and those authorized to act
with them or for them in affirmatively executing duties under
any federal law providing for equal civil rights.”
City of Greenwood v. Peacock, 384 U.S. 808, 824
(1966). The second clause-referring to the refusal “to
do any act on the ground that it would be inconsistent with
such law”-allows removal by state officers.
Id. at 824 n.22. Gaillard's reliance on §
1443(2) is therefore misplaced, because she has neither
alleged nor shown that she is a federal or state officer or
is working for one. See Id. at 824 & n.22.
Finally, nothing in the record suggests that this case
involves a mass casualty accident for purposes of proceeding
under the multiparty, multiforum provisions in 28 U.S.C.
§§ 1369 and 1441(e), and Gaillard cannot rely on
supplemental jurisdiction because this Court does not have
original jurisdiction over the removal action. See
28 U.S.C. § 1367(a).
the Court GRANTS Gaillard's application
for leave to proceed IFP for the limited purpose of remand.
[Doc. 1.] Because it is clear that this Court lacks subject
matter jurisdiction over the removal action, it is further