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
Krystal Fowlkes-Wright'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 Abebe
& Company initially filed this matter in the Magistrate
Court of DeKalb County, Georgia, seeking to evict Defendant
and Ronnell Wright from a premises and for past-due rent.
(Doc. 1-1 at 5). 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 DeKalb
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." Kirkland v. Midland Mortg. Co., 243
F.3d 1277, 1281 n.5 (11th Cir. 2001).
pleadings, Defendant appears to argue that this Court has
federal-question jurisdiction to hear the
matter. 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 Abebe &
Company alleges that Defendant is in possession of a premises
in DeKalb County, Georgia, for which she has failed to pay
$3, 800 in past-due rent. (Doc. 1-1 at 5). Plaintiff demands
possession of the premises and past-due rent. 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
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 15 U.S.C. § 1692,
Federal Rule of Civil Procedure 60, and the 14th Amendment of
the United States Constitution. (Doc. 1-1 at 2). 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 presences of a federal defense does not make the
case removable"); Fed. Land Bank of Columbia v.
Cotton, 410 F.Supp. 169, 170 n.1 (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.
although Defendant does not argue that the case is removable
based on diversity jurisdiction, the Court has examined the
state-court dispossessory affidavit, and it makes clear that
diversity jurisdiction does not exist here. 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). And
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
DeKalb County, Georgia, and she does not allege citizenship
in any other state. (Doc. 1-2). Because Defendant is a
resident of Georgia, she cannot remove the state-court
Defendant meet the amount-in-controversy threshold. The
underlying state-court affidavit shows that Plaintiff seeks
past-due rent of $3, 800. (Doc. 1-1 at 5). 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 the defendant's motion
to stay state-court dispossessory proceedings as moot 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 Nat'l 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]
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 DeKalb
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.
 In the Civil Cover Sheet, Defendant
indicates, as a basis for jurisdiction, that the United
States Government is a defendant. (Doc. 1-2 at 1). That is
simply not the case-the United ...