Star Homes Enters., LLC v. Roland

• Decision Date: 23 June 2017
• Docket Number: CIVIL ACTION FILE NO. 1:17-CV-2308-TWT-JFK
• Parties: STAR HOMES ENTERPRISES, LLC, Plaintiff, v. CATO RALPH ROLAND, and ANDRE R. CATO, Defendants.
• Court: U.S. District Court — Northern District of Georgia

STAR HOMES ENTERPRISES, LLC, Plaintiff, v. CATO RALPH ROLAND, and ANDRE R. CATO, Defendants.¹

CIVIL ACTION FILE NO. 1:17-CV-2308-TWT-JFK

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION

June 23, 2017

FINAL REPORT AND RECOMMENDATION

The above-styled case has been removed from the Magistrate Court of Gwinnett County [Doc. 1-1] and is before the undersigned on Movant / Defendant Andre R. Cato's application to proceed in forma pauperis. [Doc. 1]. The court, for the purpose of remand, GRANTS Defendant's motion. The court has the responsibility "to review Defendant's notice of removal to determine whether it meets the requirements of the statute." Alabama v. Baker, 222 F. Supp. 2d 1296, 1297-98 (M.D. Ala. 2002). "If at any time before final judgment it appears that the district court lacks subject matterjurisdiction," 28 U.S.C. § 1447(c) (amended 2011) requires that "the case shall be remanded." Upon making this review, the court finds that it does not and recommends remand.

I. Background Facts

Plaintiff Star Homes Enterprises, LLC ("Star Homes"), the owner of the real property commonly known as 3225 Ennfield Lane, Duluth, Georgia 30096, filed a dispossessory proceeding in the Magistrate Court of Gwinnett County, Georgia, on June 7, 2017, against Defendant Cato Ralph Roland ("Roland") and all others for failure to deliver possession of the premises after foreclosure sale. [Doc. 1 at 10 ("Dispossessory Proceeding")].² On June 20, 2017, Defendant Roland and Movant Andre R. Cato ("Cato") filed the instant notice of removal from the Magistrate Court of Gwinnett County, Georgia.³ [Doc. 1-1 ("Petition of Removal")].

This is the Defendant's second attempt to remove a dispossessory proceeding concerning the 3225 Ennfield Lane Property from the Magistrate Court of Gwinnett County, Georgia, to this federal district court.⁴ See Star Homes Enterprises, LLC, v. Andre R. Cato, N.D. Ga. Civil Case No.: 1:17-CV-1380-TWT-JFK ("Cato I"). On May 19, 2017, The Honorable Thomas W. Thrash, Chief U.S. District Judge for the Northern District of Georgia, remanded Cato I to the Magistrate Court of Gwinnett County. [Cato I Docs. 5, 6]. On May 22, 2017, the mailing containing copies of Chief Judge Thrash's Order of Remand and accompanying Remand Letter to the Magistrate Court of Gwinnett County sent to Defendant Cato by the Clerk of Court via U.S. mail was returned as undeliverable. [Cato I Doc. 7; 5/19/17 Docket Entry Clerk's Certificate of Mailing]. The Gwinnett County Magistrate Court docket for Case No. 17-M-10156 reflects that a Notice of Stay in Bankruptcy was filed on April 19, 2017, the imposition of a stay was ordered the same day, the Final Report andRecommendation and Order Remanding the matter to the Gwinnett County Magistrate Court were received and docketed, and upon remand the Dispossessory Proceeding was dismissed on June 1, 2017. See www.gwinnettcourts.com/casesearch (last visited June 22, 2017).

For the same reasons as set forth within Cato I, remand is required.

II. Discussion

Twenty-eight U.S.C. § 1441(a) provides that "any 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). "'In a given case, a federal district court must have at least one of three types of subject matter jurisdiction: (1) jurisdiction under a specific statutory grant; (2) federal question jurisdiction pursuant to 28 U.S.C. § 1331; or (3) diversity jurisdiction pursuant to 28 U.S.C. § 1332(a).'" SBS 276, LLC v. Walker, 2013 WL 3784988, at *2 (N.D. Ga. July 17, 2013) (quoting Baltin v. Alaron Trading Corp., 128 F.3d 1466, 1469 (11^th Cir. 1997)); and see Dabney v. Shapiro & Fishman, LLP, 2012 WL 10816231, at *2 (N.D. Fla. February 9, 2012) ("Subject-matter jurisdiction in federal court may be found under either 28 U.S.C. § 1331, federal question, or 28U.S.C. § 1332, diversity."). "If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded." 28 U.S.C. § 1447(c). See also Arbaugh v. Y & H Corp., 126 S. Ct. 1235, 1244 (2006) (all federal courts "have an independent obligation to determine whether subject-matter jurisdiction exists, even in the absence of a challenge from any party"). "[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 (11^th Cir. 2001). "[U]ncertainties are resolved in favor of remand." Burns v. Windsor Ins. Co., 31 F.3d 1092, 1095 (11^th Cir. 1994).

Although not clear from the paperwork filed by Defendant Cato, he apparently alleges as a basis for removal the court's federal question subject matter jurisdiction as well as jurisdiction based on diversity of citizenship. [Petition of Removal]. The court will first address federal question jurisdiction. "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. . . . 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, 107 S. Ct. 2425, 2429 (1987) (citationsomitted). Potential defenses or counterclaims involving the Constitution or laws of the United States are ignored. See Beneficial Nat'l Bank v. Anderson, 123 S. Ct. 2058, 2062 (2003).

Defendant Cato contends that Plaintiff's proceeding constitutes violations of 15 U.S.C. § 1692(a) and violates his constitutional rights as protected by the Seventh and Fourteenth Amendments. [Petition of Removal]. In the present case, Plaintiff Star Homes relied exclusively on state law when it filed a dispossessory proceeding in the Gwinnett County Magistrate Court. [Dispossessory Proceeding]. A dispossessory action is brought pursuant to O.C.G.A. § 44-7-50. See Ikomoni v. Executive Asset Mgmt., LLC, 309 Ga. App. 81, 84, 709 S.E.2d 282, 286 (2011) ("'The exclusive method whereby a landlord may evict a tenant is through a properly instituted dispossessory action filed pursuant to OCGA § 44-7-50 et seq.'") (citation omitted; emphasis added); see also Fennelly v. Lyons, 333 Ga. App. 96, 100, 775 S.E.2d 587, 592 (2015) (same). No federal question is presented on the face of Plaintiff's well-pleaded complaint. [Dispossessory Proceeding].

As noted, Defendant Cato also appears to base his removal on federal diversity jurisdiction. [Petition of Removal]. Section 1332(a) of Title 28 provides in pertinent part, "The district courts shall have original jurisdiction of all civil actions where thematter in controversy exceeds the sum or value of $75,000 . . . and is between - (1) the citizens of different States . . . ." 28 U.S.C. § 1331(a). Jurisdiction under this provision requires complete diversity of citizenship between the plaintiff and all defendants. See MacGinnitie v. Hobbs Group, LLC, 420 F.3d 1234, 1239 (11^th Cir. 2005) ("Complete diversity requires that no defendant in a diversity action be a citizen of the same state as any plaintiff."). Although Defendant alleges that there is diversity of citizenship with Plaintiff, no facts are presented to support that assertion. [Petition of Removal]. However, even if Defendant could establish complete diversity of citizenship, he cannot establish the requisite amount in controversy. See 28 U.S.C. § 1332(a)(1).

Plaintiff's dispossessory proceeding does not specify an amount of damages and only seeks the ejectment of Defendant Cato Ralph Roland and all others from the property due to failure to leave after the foreclosure sale. [Dispossessory Proceeding]. "[B]ecause [Plaintiff] has not pled a specific amount of damages, [Defendant] must prove by a preponderance of the evidence that the amount in controversy exceeds the jurisdictional amount." Novastar Mortg., Inc. v. Bennett, 173 F. Supp. 2d 1358, 1361 (N.D. Ga. 2001) (citing Williams v. Best Buy Co., Inc., 269 F.3d 1316, 1319 (11^th Cir. 2001)). The court looks to Plaintiff's claim to determine whether removal jurisdictionis appropriate. Burns, 31 F.3d at 1095; Novastar, 173 F. Supp. 2d at 1361 ("the status of the case as disclosed by the plaintiff's complaint is controlling in the case of a removal[,] . . . [t]herefore, the claims as asserted by the defendant are not to be considered when determining the propriety of removal and if, upon the face of the complaint, it is obvious that the suit cannot involve the necessary amount, removal will be futile and remand will follow") (citations and internal quotation marks omitted; emphasis in original); and see Anderson, 123 S. Ct. at 2062) (potential defenses or counterclaims involving the Constitution or laws of the United States are ignored).

As noted, Plaintiff seeks only Defendants' ejectment or removal from the property. "[T]his court has held that as a matter of law, a claim seeking only 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) (citing Novastar, 173 F. Supp. 2d at 1361-62); accord U.S. Bank National Ass'n v. Sanders, 2015 WL 1568803, at *3 (N.D. Ga. April 7, 2015). Therefore, as was true in Dhinoja and Novastar, Defendant Cato "cannot reduce the benefit sought to a monetary sum and there is no pecuniary amount in controversy. . . . Absent any measurable amount in controversy, the requirements of 28 U.S.C. § 1332 cannot be satisfied." Id. Accordingly, Defendant cannot show thatthe amount in controversy exceeds the $75,000 required for the court to have diversity jurisdiction as a basis...