Brooks v. Equable Ascent Financial, LLC

Filing 12

ORDER granting 5 Motion to Remand to State Court. Signed by Judge Roy B. Dalton, Jr. on 4/30/2013. (VMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
NICOLE BROOKS,
Plaintiff,
vs.

Case No. 6:13-cv-667-Orl-37DAB

EQUABLE ASCENT FINANCIAL,
Defendant.
ORDER
This cause is before the Court on Plaintiff’s Motion for Remand (Doc. 5), filed
April 25, 2013.
Plaintiff commenced this action in state court, asserting a Florida Consumer
Collection Protection Act claim and a federal Fair Debt Collection Practices Act claim.
(Doc. 2.) Defendant removed to federal court because the FDCPA claim could have
been brought originally in this Court. (Doc. 1.) Plaintiff subsequently filed a “Notice of
Voluntary Dismissal” of her FDCPA claim (Doc. 4) and has separately moved to remand
to state court based on the dismissal of FDCPA claim (Doc. 5, ¶ 5).
It is black letter law that the critical time for determining subject matter jurisdiction
is the date of removal. Leonard v. Enter. Rent A Car, 279 F.3d 967, 972 (11th Cir.
2002). Subsequent events, such as the dismissal of claims, do not operate to divest this
court of jurisdiction. Id. Thus, there is no merit to Plaintiff’s argument that this case must
be remanded to state court because she voluntarily chose to dismiss her FDCPA claim
after Defendant removed this case to federal court.1

1

Counsel are reminded that, by presenting a motion to a federal court, they are

That being said, it is clear that Plaintiff would prefer to pursue her claims in state
court. To do that, she could have voluntarily dismissed this action pursuant to Federal
Rule of Civil Procedure 41(a)(1)(A)(i) as Defendant has neither answered the complaint
nor filed a motion for summary judgment. Plaintiff, however, choose to voluntarily
dismiss her federal claim pursuant to that rule in an attempt to avoid proceeding in
federal court. Rule 41(a), however, cannot be used to dismiss less than all claims
brought against a defendant.2
Nevertheless, the Court construes Plaintiff’s Notice as a motion to amend her
complaint under Federal Rule of Civil Procedure 15(a)(2). Given that Defendant has not
answered the complaint and dismissal of Plaintiff’s federal claim would simplify this
action, the Court finds that Plaintiff’s request is well-taken and therefore her FDCPA
claim is dismissed.
While the Court is not required to remand this case, it may nevertheless decline
to continue exercising supplemental jurisdiction over Plaintiff's remaining state law
claim. See 28 U.S.C. § 1367(c); Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 357
warranting that the legal statements made in the motion have a basis under existing law
or present a non-frivolous argument for the extension or modification of existing law.
See Federal Rule of Civil Procedure 11; see also 28 U.S.C. § 1927.
Counsel are reminded further that, as members of the bar of this Court, they
must comply with the Local Rules. The motion filed by Plaintiff’s counsel does not
comply with Local Rule 1.05 (requiring, among other things, that all filings be doublespaced and all signature blocks contain the e-mail address of counsel), Local Rule
3.01(a) (requiring, among other things, that each motion contain a memorandum of
legal authority), or Local Rule 3.01(g) (requiring that every motion in a civil case, except
certain enumerated motions, contain a certification that counsel has conferred with the
opposing party in a good faith effort to resolve the issues raised by the motion). Future
filings that fail to comply with these rules may be stricken by the Court without notice.
2

See, e.g., Plains Growers, Inc. v. Ickes-Braun Glasshouses, Inc., 474 F.2d
250, 253 (5th Cir. 1973) (holding that a plaintiff may dismiss all of its claims against one
defendant under Rule 41(a)(1) even though its claims against another defendant would
remain pending).

2

(1988) (noting that “a district court has discretion to remand to state court a removed
case involving pendent claims upon a proper determination that retaining jurisdiction
over the case would be inappropriate.”). When deciding whether to exercise
supplemental jurisdiction over a particular case, this Court must consider “the
circumstances of the particular case, the nature of the state law claims, the character of
the governing state law, and the relationship between the state and federal claims,” as
well as “the values of judicial economy, convenience, fairness, and comity.” City of
Chicago v. Int’l College of Surgeons, 522 U.S. 156, 173 (1997). Supplemental
jurisdiction “‘thus is a doctrine of flexibility, designed to allow courts to deal with cases
involving pendent claims in the manner that most sensibly accommodates a range of
concerns and values.’” Lieu v. Sandy Sansing Cars, Inc., No. 3:07-cv-345, 2007 WL
4287642, *1 (N.D. Fla. Dec. 5, 2007). District courts “enjoy wide latitude” in determining
whether to retain jurisdiction over state claims when all federal claims have been
dropped but nevertheless are “encouraged to remand remaining state claims when all of
the federal claims in a case have been eliminated prior to trial.” Id. at 2. Given the early
stage of this proceeding and Plaintiff’s decision to amend her complaint to drop her only
federal claim, the Court is not inclined to exercise its discretion to retain jurisdiction over
Plaintiff's remaining state law claim.
Accordingly, it is hereby ORDERED AND ADJUDGED:
1.

Plaintiff’s Notice of Voluntary Dismissal (Doc. 4) is construed as a motion
to amend the complaint and is GRANTED. Plaintiff’s FDCPA claim is
dismissed without prejudice.

2.

Plaintiff’s Motion to Remand (Doc. 5) is GRANTED. The Clerk is directed
to: (a) send a certified copy of this Order to the Clerk of the County Court

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of the Ninth Judicial Circuit in and for Orange County, Florida; and (b)
close this case.
DONE AND ORDERED in Chambers in Orlando, Florida, on April 30, 2013.

Copies:
Counsel of Record

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