Dayhoff v. Wells Fargo Home Mortgage, Inc.

Filing 37

ORDER: that Defendant's Counterclaim is DISMISSED WITHOUT PREJUDICE. Signed by Judge Roy B. Dalton, Jr. on 2/5/2014. (VMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
COLLEEN DAYHOFF,
Plaintiff,
v.

Case No. 6:13-cv-1132-Orl-37KRS

WELLS FARGO HOME MORTGAGE,
INC. a/k/a WELLS FARGO BANK, N.A.,
Defendant.
ORDER
This cause is before the Court sua sponte. Upon review of the Defendant Wells
Fargo Home Mortgage, Inc.’s Answer and Affirmative Defenses and Counterclaim
(Doc. 34), the Court finds that the Counterclaim is due to be dismissed.
BACKGROUND
The Plaintiff initiated this action in state court on June 18, 2013, and Defendant
filed a notice of removal with this Court on July 26, 2013. (Doc. 1.) In her initial
Complaint, Plaintiff asserted three claims against Defendant for violating the Telephone
Consumer Protection Act (“TCPA”), the Fair Debt Collection Practices Act, and the
Florida Consumer Collection Practices Act. (Doc. 2.) Defendant moved to dismiss the
initial Complaint (Doc. 14), and the Court granted the motion in part. (Doc. 30.) On
December 27, 2013, Plaintiff filed an Amended Complaint asserting a single claim under
the TCPA. (Doc. 33.) Plaintiff’s claim arises from 106 allegedly unauthorized and
unlawful telephone calls made by Defendant to Plaintiff’s cell phone between February
26, 2013, and June 28, 2013. (Id.)

On January 27, 2014, Defendant filed an Answer and Affirmative Defenses and a
Counterclaim. (Doc. 34.) By its Counterclaim, Defendant asserts a claim for mortgage
foreclosure (Count I), or alternatively, for breach of a promissory note (Count II). (Id.)
Defendant also seeks to join the following new Counterclaim-Defendants: (1) Kenneth
W. Dayhoff; (2) the United States of America on behalf of the Secretary of Housing and
Urban Development; (3) the United States of America on behalf of the Administrator of
the Small Business Administration; (4) Bank of America, N.A.; (5) The Auto Shop, Inc.;
(6) the City of Titusville; and (7) fictitious party tenants. (Id. at 6.) Defendant alleges that
this Court has supplemental jurisdiction over the Counterclaim pursuant to 28 U.S.C.
§ 1367(a). (Id. at 7.)
STANDARDS
This Court has an obligation to inquire into the grounds for its exercise of subject-matter jurisdiction “sua sponte whenever it may be lacking.” Bochese v. Town of Ponce
Inlet, 405 F.3d 964, 975 (11th Cir. 2005). Section 1367(a) provides for the exercise of
supplemental jurisdiction as follows:
Except as provided in subsections (b) and (c) or as expressly provided
otherwise by Federal statute, in any civil action of which the district courts
have original jurisdiction, the district courts shall have supplemental
jurisdiction over all other claims that are so related to claims in the action
within such original jurisdiction that they form part of the same case or
controversy under Article III of the U.S. Constitution. Such supplemental
jurisdiction shall include claims that involve the joinder or intervention of
additional parties.
28 U.S.C. § 1367(a). Section 1367(c) provides that this Court “may decline to exercise
supplemental jurisdiction over a claim under subsection (a) if . . . the claim substantially
predominates over the claim or claims over which the district court has original
jurisdiction.” Id. § 1367(c)(2).

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DISCUSSION
Here, the Court has federal question subject matter jurisdiction over Plaintiff’s
TCPA claim. Mims v. Arrow Fin. Servs., LLC, 132 S. Ct. 740, 745 (2012) (holding that
“federal and state courts have concurrent jurisdiction over private suits arising under the
TCPA”). Defendant’s Counterclaim seeks to enforce the debt that was the subject of the
alleged calls at issue in Plaintiff’s TCPA claim. Defendant’s foreclosure and breach of
note Counterclaim is a permissive counterclaim at best. See Hunt v. 21st Mortgage
Corp., No. 2:12-cv-381-RDP, 2012 WL 3903783, at *3 (N.D. Ala. Sept. 7, 2012) (finding
that debt-collection counterclaim was permissive, not compulsory). Further, the Court
finds that the Counterclaim will substantially predominate over Plaintiff’s TCPA claim.
See Campos v. W. Dental Servs., Inc., 404 F. Supp. 2d 1164, 1170–71 (N.D. Cal. 2005)
(declining to exercise supplemental jurisdiction over debt collection counterclaim);
Randall v. Nelson & Kennard, No. CV-09-387-PHX-LOA, 2009 WL 2710141, at *6 (D.
Az. Aug. 26, 2009) (same); Moore v. Old Canal Fin. Corp., No. CV05-205-S-EJL, 2006
WL 851114, at *4 (D. Idaho Mar. 29, 2006) (same). Accordingly, dismissal under
§ 1367(c)(2) is warranted.
CONCLUSION
Accordingly, it is hereby ORDERED AND ADJUDGED that Defendant’s
Counterclaim is DISMISSED WITHOUT PREJUDICE pursuant to 28 U.S.C.
§ 1367(c)(2).
DONE AND ORDERED in Chambers in Orlando, Florida, on February 5, 2014.

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Copies:
Counsel of Record

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