United States District Court, S.D. Georgia, Augusta Division
MAGISTRATE JUDGE'S REPORT AND
K. EPPS UNITED STATES MAGISTRATE JUDGE
D. Jackson, proceeding pro se, purports to remove to this
Court an action filed by Plaintiff in the Magistrate Court of
Richmond County, Georgia. For the reasons set forth below,
the Court finds it lacks subject matter jurisdiction and
REPORTS and RECOMMENDS the case be REMANDED to the Magistrate
Court of Richmond County, and the above-captioned civil
action be CLOSED in this Court.
March 5, 2019, at 4:06 p.m., the Clerk of Court filed a
Notice of Removal of Civil Action, purporting to remove case
No. 916702 from Richmond County Magistrate Court that had
been set for a hearing on March 6, 2019, at 9:00 a.m. Because
Defendant's filing did not establish when or if the
Notice was served on Plaintiff's counsel or filed with
the Richmond County Magistrate Court, and because there was
no clear basis for federal jurisdiction, the Court directed
Defendant, by the close of business on March 15, 2019, to
provide, (1) sufficient evidence of federal jurisdiction, and
(2) proof of service of the Notice of Removal on
Plaintiff's counsel and the Magistrate Court of Richmond
County. (See generally doc. nos. 1, 5.)
response, Defendant filed an Amended Notice of Removal of
Civil Action. (Doc. no. 6.) The Certificate of Service states
only that he served his Amended Notice on Plaintiff via a
Post Office Box in Oakwood, Georgia. (Id. at 5.)
Defendant did not, as directed in the Court's prior
order, provide proof of service on Plaintiff's counsel or
the Magistrate Court of Richmond County. Even more
importantly, as described below, Defendant did not provide
sufficient evidence of federal jurisdiction, and therefore
the case may not proceed in federal court.
states in his Amended Notice that case number 916702 is
pending in the Magistrate Court of Richmond County, but he
did not attach a copy of the complaint. 28 U.S.C. §
1446(a) requires a removing defendant to file a “copy
of all process, pleadings, and orders served” on
defendant in the state action. Because of Defendant's
failure to comply with the procedural requirements for
removal, despite having the opportunity to cure the original
deficiency, the Court has only the Answer of Tenant and
Notice of Hearing attached to the original Notice of Removal
to review. (See doc. nos. 1, 6.) That document
suggests the dispute is between a landlord and tenant.
(See doc. no. 1.) Defendant's Amended Notice of
Removal does not offer any information to clarify the basis
for the underlying action in Magistrate Court, and despite
multiple citations to federal statutes, it does not provide
any factual basis supporting federal jurisdiction.
a defendant may remove an action from state court when the
federal court would possess original jurisdiction over the
subject matter. 28 U.S.C. § 1441(a). A removing
defendant has the burden to establish federal jurisdiction.
See Williams v. Best Buy Co., 269 F.3d 1316, 1319
(11th Cir. 2001). “Subject matter jurisdiction in a
federal court may be based upon federal question jurisdiction
or diversity jurisdiction.” Walker v. Sun Trust
Bank, 363 Fed.Appx. 11, 15 (11th Cir. 2010) (per
curiam) (citing 28 U.S.C. §§ 1331, 1332).
“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
plaintiff's properly pleaded complaint.”
Caterpillar Inc. v. Williams, 482 U.S. 386, 392
(1987). That is, “[o]nly state-court actions that
originally could have been filed in federal court may be
removed to federal court by the defendant.”
Id. (footnote omitted). Accordingly, a counterclaim
based on a federal cause of action or a federal defense alone
is not a basis for removal jurisdiction. Vaden v.
Discover Bank, 556 U.S. 49, 59-61 (2009).
appears Plaintiff filed its action in the Magistrate Court of
Richmond County as a landlord/tenant dispute. The Amended
Notice of Removal, while not attaching the complaint,
suggests Plaintiff foreclosed on Defendant's residence
and served an eviction notice on Defendant. (Doc. no. 6, p.
2.) Defendant contends the foreclosure violated an automatic
stay granted in a bankruptcy proceeding filed “around
August 2018.” (Id.) Defendant does not provide
the bankruptcy case number or attach any documentation
supporting the conclusion there is an automatic stay in
Defendant purports to raise a federal defense to a state
dispossessory action does not confer federal subject matter
jurisdiction. See Beneficial Nat'l Bank v.
Anderson, 539 U.S. 1, 6 (2003); Holmes Group, Inc.
v. Vornado Air Circulation Sys., Inc., 535 U.S. 826,
830-32 (2002). This Court and others within the Eleventh
Circuit have rejected similar attempts to remove a
dispossessory action based only on state law. See
American Homes 4 Rent Properties Eight, LLC ISAOA v.
Green, CV 115-068, 2015 WL 5043222, at *2 (S.D. Ga. Aug.
25, 2015); Citibank, N.A. v. Johnson, No.
1:14-CV-1784-WSD, 2014 WL 5019924, at *2-3 (N.D.Ga. Oct. 7,
does the mention of a bankruptcy case confer jurisdiction on
this Court. Filing a petition under the Bankruptcy Code
operates as an automatic stay of proceedings of a debtor, but
Defendant offers nothing to support the conclusion he sought
relief in bankruptcy court from this alleged violation of an
order entered in his unidentified bankruptcy case. See,
e.g., In re Albany Partners Ltd., 749 F.2d 670,
671-75 (11th Cir. 1984) (describing process for challenging
foreclosure sale conducted in state court that allegedly
violated bankruptcy stay as commencing in bankruptcy court).
Moreover, if there is a stay in place, then the automatic
stay provision of 11 U.S.C. § 362(a)(1) would prohibit
the commencement of this judicial proceeding
against Defendant unless or until the bankruptcy
court grants relief from the automatic stay or that stay
lapses. See Ellison v. Northwest Eng'g Co., 707
F.2d 1310, 1311 (11th Cir. 1983) (per curiam)
(staying appellate proceedings regarding district court
summary judgment ruling because defendant filed bankruptcy
petition after parties filed briefs and panel heard oral
argument, thereby activating the automatic stay provision of
11 U.S.C. § 362(a)).
Defendant does not plausibly raise diversity of citizenship
as a basis for federal jurisdiction, for the sake of
completeness, the Court finds no such diversity jurisdiction
exists. Federal courts have jurisdiction over “all
civil actions where the matter in controversy exceeds the sum
or value of $75, 000, ” and is between “citizens
of different States.” 28 U.S.C. § 1332(a)(1).
Defendant fails to plead diversity of citizenship - indeed
there is no information on the citizenship of Plaintiff or
Defendant - and fails to show the amount-in-controversy
exceeds the $75, 000 threshold. As succinctly explained by
[A] dispossessory proceeding under Georgia law is not an
ownership dispute, but rather only a dispute over limited
right to possession, title to property is not at issue, and
accordingly, the removing defendant may not rely on the value
of the property as a whole to satisfy the amount in
Fed. Home Loan Mortg. Corp. v. Williams, Nos.
1:07-CV-2864-RWS, 1:07-CV-2865-RWS, 2008 WL 115096, at *2
(N.D.Ga. Jan. 9, 2008). Defendant has not established
diversity of citizenship or that the value ...