Filed: Aug. 24, 2016
Latest Update: Aug. 24, 2016
Summary: OPINION AND ORDER WILLIAM S. DUFFEY, Jr. , District Judge . This matter is before the Court on Magistrate Judge John K. Larkins, III's Final Report and Recommendation [3] ("R&R"). The R&R recommends this action be remanded to the Magistrate Court of Fulton County. I. BACKGROUND On May 23, 2016, Defendant Wilhy Harpo ("Defendant") filed his application for leave to proceed in forma pauperis ("IFP") [1] and his notice of removal. Defendant seeks removal of a dispossessory action brought
Summary: OPINION AND ORDER WILLIAM S. DUFFEY, Jr. , District Judge . This matter is before the Court on Magistrate Judge John K. Larkins, III's Final Report and Recommendation [3] ("R&R"). The R&R recommends this action be remanded to the Magistrate Court of Fulton County. I. BACKGROUND On May 23, 2016, Defendant Wilhy Harpo ("Defendant") filed his application for leave to proceed in forma pauperis ("IFP") [1] and his notice of removal. Defendant seeks removal of a dispossessory action brought b..
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OPINION AND ORDER
WILLIAM S. DUFFEY, Jr., District Judge.
This matter is before the Court on Magistrate Judge John K. Larkins, III's Final Report and Recommendation [3] ("R&R"). The R&R recommends this action be remanded to the Magistrate Court of Fulton County.
I. BACKGROUND
On May 23, 2016, Defendant Wilhy Harpo ("Defendant") filed his application for leave to proceed in forma pauperis ("IFP") [1] and his notice of removal. Defendant seeks removal of a dispossessory action brought by Plaintiff Broadstone Maple, LLC ("Broadstone") in the Magistrate Court of Fulton County, Georgia. The Court notes Defendant has attempted to remove nearly identical actions to this Court in the past, and the Court has remanded those cases for lack of subject matter jurisdiction. See, e.g., Order, Broadstone Maple, LLC v. Alexander Corporate Accommodations, LLC, No. 1:16-cv-2774-WSD (N.D. Ga. August 2, 2016) (Doc. 4). The Court also notes that, because Defendant is a frequent filer of frivolous lawsuits, the Court has previously ordered Defendant "to disclose his full litigation history in any civil rights complaint and/or [IFP] affidavit that he files." See, e.g., Williams v. Harpo, No. 1:16-cv-12225-WSD (N.D. Ga. 2016) (ECF No. 2 at 2); Harpo v. City of Atlanta, No. 1:16-cv-1067-WSD (N.D. Ga. 2016) (ECF No. 2 at 1-2); Harpo v. City of Atlanta, No. 1:14-cv-2157-WSD (N.D. Ga. 2014) (ECF No. 2 at 1-2); Harpo v. Fulton Cty. Sheriff, No. 1:14-cv-2208-WSD (N.D. Ga. 2014) (ECF No. 2 at 1-2).
On June 3, 2016, the Magistrate Judge issued his R&R. The Magistrate Judge found that the Court lacks subject matter jurisdiction over Broadstone's Complaint, and recommends this action be remanded to the Magistrate Court of Fulton County.
On June 20, 2016, Defendant filed his Motion for Leave to File Out-of-Time Objections to the R&R [5]. On June 24, 2016, the Court entered an Order [7] granting Defendant's Motion for Leave. The Court required Defendant to file, on or before July 1, 2016, his objections to the R&R. The Court noted that no further extensions would be granted. Defendant did not file any objections to the R&R.
On August 10, 2016, Defendant filed his "Emergency Motion for Ex Parte Hearing, Ex Parte Emergency Order to Cease and Desist, and Motion to Reinstate Occupancy" [11].
II. ANALYSIS
A. Legal Standard
After conducting a careful and complete review of the findings and recommendations, a district judge may accept, reject, or modify a magistrate judge's report and recommendation. 28 U.S.C. § 636(b)(1); Williams v. Wainwright, 681 F.2d 732 (11th Cir. 1982), cert. denied, 459 U.S. 1112 (1983). Where, as here, no party objects to the R&R, the Court conducts a plain error review of the record. See United States v. Slay, 714 F.2d 1093, 1095 (11th Cir. 1983).
B. Discussion
The Magistrate Judge determined that the Complaint does not contain any federal claims, and removal based on federal question jurisdiction is improper. The Magistrate Judge also determined that Defendant fails to show the Court has diversity jurisdiction over this action, because his allegation that he and Defendant Onna are "citizens of states other than Georgia" does not show the citizenship of the parties for purposes of 28 U.S.C. § 1332(a). Even if Defendant could correct this deficiency, he cannot meet the amount-in-controversy requirement, because Broadstone's claims for past-due and current rent do not exceed $75,000, and the claim for ejectment cannot be reduced to a monetary sum.1 (R&R at 4). The Magistrate Judge concluded that the Court lacks subject matter jurisdiction over this state dispossessory proceeding, and recommends the Court remand this action to the Magistrate Court of Fulton County.2 The Court finds no plain error on these findings and recommendation, and this action is remanded. See Slay, 714 F.2d at 1095.
Because the Court lacks jurisdiction over this action, Defendant's "Emergency Motion for Ex Parte Hearing, Ex Parte Emergency Order to Cease and Desist, and Motion to Reinstate Occupancy" [11] is denied.
III. CONCLUSION
For the foregoing reasons,
IT IS HEREBY ORDERED that Magistrate Judge John K. Larkins, III's Final Report and Recommendation [3] is ADOPTED.
IT IS FURTHER ORDERED that this action is REMANDED to the Magistrate Court of Fulton County.
IT IS FURTHER ORDERED that Defendant's "Emergency Motion for Ex Parte Hearing, Ex Parte Emergency Order to Cease and Desist, and Motion to Reinstate Occupancy" [11] is DENIED.
SO ORDERED.
