United States District Court, M.D. Georgia, Macon Division
COOSA NATION OF NORTH AMERICA USA ex rel. DR. MONIQUE Y. TATE a/k/a SAHANI UGIDAHLI or Principal Chieftess BLUE FEATHER, MICHAEL F. TATE a/k/a Pine Chief EAGLE EYES, and LAMAR PERRYMAN a/k/a CATE HONVNWV or Principal Chief RED MAN, individually and in their official capacities and on behalf of all others who are similarly situated as members and citizens of the Coosa Nation of North America USA, Plaintiffs,
WELLS FARGO BANK N.A.; PHELAN HALLINAN DIAMOND & JONES LLLP; BUTTS COUNTY, GEORGIA; and the STATE OF GEORGIA, Defendants.
GRANTING PLAINTIFF'S MOTION TO PROCEED IN FORMA PAUPERIS
AND GRANTING DEFENDANT WELLS FARGO'S MOTION TO
E. SELF, III, JUDGE
case is before the Court on Defendant's Motion to Proceed
in Forma Pauperis [Doc. 2], Defendant's Motion
for Temporary Injunction [Doc. 3] (which the Court construes
as a motion for temporary restraining order), and
Plaintiff's Motion to Remand [Doc. 5].
procedural posture of this case is somewhat confusing, given
the captions Defendants have placed on their pleadings and
the state-court proceedings that preceded this action. From
what the Court can decipher (after considerable effort),
Wells Fargo Bank, N.A. (“Wells Fargo”) sought and
obtained a writ of possession against Defendants
“Monique Y. Tate, Michael F. Tate, and all others
residing at 124 Sauders St., Flovilla, Georgia 30216”
in the Magistrate Court of Butts County, Georgia on September
25, 2018. [Doc. 1-2; Doc. 5-4]. Defendants appealed the
magistrate court's judgment to the Superior Court of
Butts County, Georgia, and the superior court affirmed the
judgment on December 20, 2018. [Doc. 1-2]. In doing so, the
superior court explained, “Following the
Defendants' appeal, Plaintiff moved for summary judgment
on its claim for a writ of possession. The Court noticed the
parties for a hearing on December 19, 2018. Counsel for
Plaintiff appeared. Defendants did not.” [Id.
at p. 2]. Defendants were ordered to vacate the premises at
124 Saunders St. (the “Premises”) immediately
upon entry of the superior court's order. There is no
evidence that the Defendants appealed the superior
court's decision to the Georgia Court of Appeals.
December 26, 2018, six days after the superior court entered
its order, Defendants “removed” the case to this
Court. [Doc. 1]. The caption of the removed case lists
“Coosa Nation of North America (USA), ” who is
removing this case on behalf of the original defendants, and
“Lamar Perryman (Officially known as Cate Honvnwv or
Principal Chief Red Man), ” neither of whom were
parties to the original action. [Id.]. All of these
parties are collectively referred to as
The caption also includes Phelan Hallinan Diamond &
Jones, LLLP; Butts County, Georgia; and the State of Georgia
as “Plaintiffs/Counter-Defendants” alongside
Wells Fargo. [Id.]. Aside from Wells Fargo, none of
these “Plaintiffs/Counter-Defendants” were
parties to the original action. In their Notice of Removal, the
“Defendants/Counter-Plaintiffs” contend that
Wells Fargo engaged in predatory lending, mortgage fraud, and
insurance fraud, and essentially took payments from Monique
Y. Tate but later told her the payments could not be
accounted for. See generally [Doc. 1].
“Defendants/Counter-Plaintiffs” now move to
proceed in forma pauperis (“IFP”) and
move for a temporary restraining order to presumably stay
their eviction from the Premises. Wells Fargo also moves to
remand this case for lack of subject-matter jurisdiction.
Defendant's Motion to Proceed IFP
preliminary matter, the Court should deny Defendant Coosa
Nation's motion to proceed IFP because IFP status may
only be conferred upon natural persons-not entities,
corporations, or other associations. See Rowland v.
California Men's Colony, 506 U.S. 194, 196 (1993).
Defendants describe Coosa Nation of North America, which is
bringing this removal action on behalf of the individual
Defendants, as a headquartered entity that “gives free,
charitable, & pro bono services to Native American
Aborigines members-citizens and in our community in the
capacity of care-coordination, civil-human-legal advocacy,
counseling, therapeutic education, etc.” [Doc. 2, p.
1]. Based on this description, Coosa Nation appears to be a
business entity rather than a natural person, and is
therefore not entitled to IFP status. Nevertheless, the Court
GRANTS Defendant's motion to proceed IFP
for the sole purpose of determining whether this case is
removable. Cf. FPA5 Century Peachtree LLC v.
Trucking, No. 1:17-CV-4434-WSD-JSA, 2017 WL 8217520, at
*1 (N.D.Ga. Nov. 8, 2017), recommendation adopted by
2017 WL 8219147 (N.D.Ga. Dec. 5, 2017).
Plaintiff's Motion to Remand
Fargo argues, inter alia, that this case is not
removable because the Court lacks subject-matter jurisdiction
over it. If a district court determines at any time that it
lacks jurisdiction over an action removed from state court,
it must remand the action. 28 U.S.C. § 1447(c).
Pretermitting whether this action presents a federal question
or whether it is brought on the basis of diversity
jurisdiction, the Court cannot consider it because there is
no pending controversy to be resolved. The removal statute
allows defendants to remove any action brought in state court
“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)
(emphasis added). However, when the underlying case that the
defendant seeks to remove is closed (i.e. the state court
reached a final judgment), the Court lacks jurisdiction on
removal “because if a case is closed, ‘no case or
controversy exists.'” Family-Pittsburgh Phase
I, LP v. Harrison, No. 1:18-CV-01534-TWT-JFK, 2018 WL
2224817, at *2 (N.D.Ga. Apr. 16, 2018) (quoting US Bank,
N.A. v. Polanco, No. 12-81264-Civ-Ryskamp/Hopkins, 2013
WL 12096360, at *1 (S.D. Fla. Apr. 24, 2013)),
recommendation adopted by 2018 WL 2219441 (N.D.Ga.
May 15, 2018); see also Georgia Dep't of Human Res.
ex rel. D.J. v. Jenkins, No. CV 112-183, 2013 WL 326199,
at *2 (S.D. Ga. Jan. 2, 2013) (“Logically, a closed
case simply cannot be removed to federal court.”),
recommendation adopted by 2013 WL 325620 (S.D. Ga.
Jan. 28, 2013).
Superior Court of Butts County, Georgia issued its Final
Order and Writ of Possession on December 20, 2018 and deemed
the order a “final judgment” in favor of Wells
Fargo. [Doc. 1-2]. Accordingly, there is nothing pending in
state court for the
“Defendants/Counter-Plaintiffs” to remove, and
this Court lacks jurisdiction over this case.
reasons stated above, the Court GRANTS Coosa
Nation's Motion to Proceed in Forma Pauperis [Doc. 2].
However, given the Court's lack of jurisdiction over this
case, the Court also GRANTS Wells
Fargo's Motion to Remand [Doc. 5]. Plaintiff's Motion
for Temporary Restraining Order [Doc. 3] is
TERMINATED as moot. The Clerk of Court is
DIRECTED to forward a certified copy of this
Order to the ...