United States District Court, N.D. Georgia, Atlanta Division
ORDER AND FINAL REPORT AND RECOMMENDATION
CHRISTOPHER C. BLY UNITED STATES MAGISTRATE JUDGE
matter is before the Court for consideration of Defendant
Shanay Foster's pro se affidavit and application
to proceed in forma pauperis under 28 U.S.C. §
1915(a)(1), (Doc. 1), and her petition for removal. (Doc.
1-1). From the documents Defendant attaches to her petition
for removal, it appears that Plaintiff BH Management
initially filed this matter in the Magistrate Court of Cobb
County, seeking to evict Defendant from a premises and for
past-due rent and fees. (Doc. 1-1). Defendant seeks to remove
the matter to this Court. For the reasons set forth below, it
is hereby RECOMMENDED that this case be
REMANDED to the Magistrate Court of Cobb
County. For the purposes of remand only, Defendant's
motion to proceed in forma pauperis, (Doc. 1), is
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...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). When an action is removed from state court, this
Court must remand it if-at any time before final judgment- it
appears that this Court lacks subject-matter jurisdiction.
See 28 U.S.C. § 1447(c). Indeed, this Court is
required to ensure its own subject-matter jurisdiction, even
if that question is not raised by the parties. See, e.g.,
Smith v. GTE Corp., 236 F.3d 1292, 1299 (11th Cir.
2001). "[I]n removal cases, the burden is on the party
who sought removal to demonstrate that federal jurisdiction
exists." Kirklandv. Midland Mortg. Co., 243
F.3d 1277, 1281 n.5 (11th Cir. 2001).
pleadings, Defendant appears to be relying on both
federal-question and diversity jurisdiction, and the Court
will address both. Under 28 U.S.C. § 1331, "[t]he
district courts shall have original jurisdiction of all civil
actions arising under the Constitution, laws, or treaties of
the United States." 28 U.S.C. § 1331. "To
determine whether the claim arises under federal law,
[courts] examine the 'well pleaded' allegations of
the complaint and ignore potential defenses: a suit arises
under the Constitution and laws of the United States only
when the plaintiffs statement of his own cause of action
shows that it is based upon those laws or that
Constitution." Beneficial Nat'l Bank v.
Anderson, 539 U.S. 1, 6 (2003) (internal quotation marks
and alterations omitted).
Petition for Removal makes clear that the state-court action
is an eviction proceeding, where Plaintiff BH Management
alleges that Defendant is in possession of a premises in Cobb
County, Georgia, for which she has failed to pay $1, 150 in
past-due rent. (Doc. 1-1 at 3). Plaintiff demands possession
of the premises, past-due rent, as well as fees and unpaid
utilities. Id. Defendant's Petition for Removal
does not identify any federal claim that Plaintiff asserts in
the state-court action. And the lack of a federal claim in
Plaintiffs state-law proceeding is not surprising, because
dispossessory actions are typically a product of state
law-here O.C.G.A. § 44-7-50. See Mwangi v. Fed.
Nat'l Mortg. Ass 'n, 164 F.Supp.3d 1403, 1415
(N.D.Ga. 2016) (holding that "[u]nder Georgia law, the
exclusive method whereby a landlord may evict a tenant is
through a properly instituted dispossessory action filed
pursuant to O.C.G.A. § 44-7-50 et. seq." (internal
quotation marks and alteration omitted)).
of alleging that Plaintiffs suit is based upon federal law,
Defendant appears to assert counterclaims or defenses under
federal law. Specifically, Defendant states that the
proceedings in state court violate the "the Uniform
Commercial Code of 15 U.S.C. 1692," and that Plaintiff
is "attempting to collect a debt in violation of the
Fair Debt Collection Practices Act (FDCPA) of 1978."
(Doc. 1-1 at 1). But under the well-pleaded complaint rule,
federal defenses and counterclaims are not sufficient to
confer jurisdiction on this Court to hear an action removed
from a state tribunal. See Beneficial Nat'l
Bank, 539 U.S. at 6; Blab T. V. of Mobile, Inc. v.
Comcast Cable Commc'ns, Inc., 182 F.3d 851, 854
(11th Cir. 1999) (noting that "[t]he presence of a
federal defense does not make the case removable");
Fed. Land Bank of Columbia v. Cotton, 410 F.Supp.
169, 170 n.l (N.D.Ga. 1975) (holding that a
"defendant's defense and counterclaim relating to
truth-in-lending violations are clearly not sufficient to
confer subject-matter jurisdiction upon this court for the
entire action"). Simply put, "[b]ecause
landlord-tenant disputes are matters of state law, an action
for eviction cannot be the basis for federal question
jurisdiction." See Round Valley Indian Housing Auth.
v. Hunter, 907 F.Supp. 1343, 1348 (N.D. Cal. 1995).
Defendant has not identified any federal claim in Plaintiffs
state-court dispossessory action, and the case is not
removable based on federal-question jurisdiction.
also alleges that the Court has diversity jurisdiction over
this action. See 28 U.S.C. § 1332(a). Diversity
jurisdiction exists for all civil actions where the amount in
controversy exceeds $75, 000 and which are between citizens
of different states. 28 U.S.C. § 1332(a)(1). Defendant
contends that the Plaintiff, BH Management, and its
subsidiary, Stone Ridge Apartments, are registered and
headquartered in the State of Iowa. (Doc. 1-1 at 1). But
diversity between parties does not provide a basis for
removal to federal court if any of the properly joined
defendants is a citizen of the state in which the action is
brought. See 28 U.S.C. § 1441(b)(2). Defendant
states in the Civil Cover Sheet that she is a resident of
Atlanta, Georgia, and she does not allege citizenship in any
other state. Because Defendant is a resident of
Georgia, she cannot remove the state-court proceeding.
Defendant meet the amount-in-controversy threshold. The
underlying state-court complaint shows that Plaintiff seeks
past-due rent of $ 1, 15 0 for the month of October, rent for
days following October in the amount of $38.33 per day, a
late fee of $100, and unpaid utilities totaling $185.11.
(Doc. 1-1 at 3). The amount Plaintiff seeks falls far short
of $75, 000, and this action may not be removed on the basis
of diversity jurisdiction.
finally, to the extent that Defendant seeks a stay of the
state-court proceedings, she is not entitled to one. See
American Homes 4 Rent Properties Eight, LLC v. Dynott,
No. 1:15-CV-2689-WSD, 2015 WL 5920130, at *2 & n.4
(N.D.Ga. October 8, 2015) (denying as moot the
defendant's motion to stay state-court dispossessory
proceedings because the 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 Nat7 Ass 'n v.
Sanders, No. 1:15-CV-357-WSD, 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.").
while Defendant's Application to Proceed in District
Court without Prepaying Fees or Costs, (Doc. 1), is
GRANTED, for the reasons discussed, the
undersigned RECOMMENDS that this action be
REMANDED to the Magistrate Court of Cobb
County. As this is a Final Report and Recommendation, there
is nothing further in this action pending before the
undersigned. Accordingly, the Clerk is
DIRECTED to terminate the reference of this
matter to the undersigned.
IS SO ORDERED.
 Defendant appears to have left much of
the Application blank. For example, in response to the
question about how much cash Defendant has, Defendant left
the line blank, as opposed to writing in a number. Given that
this Court so clearly lacks subject-matter jurisdiction, the
undersigned finds that the interests of judicial economy are
best served by simply granting leave to proceed in forma
pauperis and recommending that the case be remanded. The
alternative, to direct Defendant to more fully ...