United States District Court, N.D. Georgia, Atlanta Division
MAGISTRATE JUDGE'S ORDER AND FINAL REPORT AND
T. WALKER, CHIEF UNITED STATES MAGISTRATE JUDGE.
before the Court is a Motion to Stay filed by Defendant
Danielle Pichette ("Defendant"). (Doc. 2). For the
reasons outlined below, the Court DENIES Defendant's
Motion to Stay and RECOMMENDS that this action be REMANDED
pursuant to 28 U.S.C. § 1447(c) to Cobb County
September 10, 2018, Breckenridge Property Fund 2016, LLC
("Plaintif') filed a dispossessory proceeding
against Defendant in Cobb County Magistrate Court. (Doc. 1,
p. 7). Defendant, proceeding pro se, removed the case to this
Court on September 19, 2018. (Doc. 1). Defendant requests
that this Court review the final judgment of the Cobb County
Magistrate Court, which entered a writ of possession against
Defendant. (Doc. 1, p. 1). Defendant appears to argue that
this Court has jurisdiction over the matter because the prior
foreclosure of the property violated Plaintiffs due process
rights and 42 C.F.R. 203.604(b). (Doc. 1, p. 1).
on the 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 maybe lacking. Hernandez v.
Att'y Gen., 513F.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
1441(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. § 1441(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 anytime 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 (1lth Cir. 1994).
readily apparent 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'l Bank v. Anderson. 539 U.S. 1, 6
the copy of the dispossessory complaint Defendant provided to
the Court is incomplete, Defendant does not allege that
Plaintiff relied on anything other than state law when it
initiated a dispossessory proceeding in Cobb County
Magistrate Court seeking possession of Defendant's
residence. (Doc. 1). Defendant's Notice of Removal
recites that Plaintiff fled a dispossessory proceeding and
obtained a writ of possession. (Doc. 1). Jurisdiction over
the initiation and trial of a dispossessory action fled 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 Plaintiffs due process
rights and 42 C.F .R. 203 .604(b), a federal question
presented as 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. Safe co. Ins. Co. of Am., 915 F.2d
616, 618 (11th Cir. 1990). Defendant's Petition for
Removal does not include any facts showing that the parties
are diverse or that the $75, 000 jurisdictional threshold is
met. Defendant only alleges that Plaintiff sought possession
of the property. (Doc. 1). 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), aff d 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 l-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'lMortg. 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 Cobb
County Magistrate Court.
Motion to Stay is DENIED. (Doc. 2). The Court RECOMMENDS that
this action be REMANDED pursuant to 28 U.S.C. § 1447(c)
to the Cobb County Magistrate Court. As this is a final
Report and Recommendation and there are no other matters
pending before ...