Owens-Benniefield v. Nationstar Mortgage LLC

Filing 13

ORDER: Defendant Nationstar Mortgage LLC's Motion to Stay and/or Abstain on TCPA Claim (Doc. # 7 ) is denied. Signed by Judge Virginia M. Hernandez Covington on 4/21/2017. (DMD)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
VICKIE OWENS-BENNIEFIELD,
Plaintiff,
v.

Case No.: 8:17-cv-540-T-33TGW

NATIONSTAR MORTGAGE LLC,
Defendant.
______________________________/
ORDER
This matter comes before the Court pursuant to Defendant
Nationstar Mortgage LLC’s Motion to Stay and/or Abstain on
TCPA Claim (Doc. # 7), filed on March 30, 2017. Pro se
Plaintiff Vickie Owens-Benniefield failed to respond to the
Motion. For the reasons that follow, the Motion is denied.
I.

Background
In

January

of

2008,

Owens-Benniefield

took

out

a

mortgage to purchase a property in Tampa, Florida. (Doc. # 1
at

¶¶

14-15).

Owens-Benniefield

struggled

to

pay

the

mortgage, so she “completed a deed in lieu of foreclosure in
which the debt was forgiven by Federal Home Loan Mortgage
Corporation on February 24, 2015.” (Id. at ¶ 15). OwensBenniefield received a letter, which was addressed to the
Comptroller of the Currency and indicated “the Deed in Lieu

1

of Foreclosure was approved by the investor Federal Home Loan
Mortgage Corporation.” (Id. at ¶ 17).
Defendant Nationstar Mortgage LLC “was a party to the
transaction for the Deed in Lieu as they had to execute an
Assignment of Mortgage in order for the transaction to be
completed on February 24, 2015.” (Id. at ¶ 18). According to
Owens-Benniefield,

her

“obligation

at

that

point

as

of

February 2015, was forgiven.” (Id. at ¶ 19). Yet, on March
17, 2016, despite the mortgage debt having “been recorded and
released

by

Federal

Home

Loan

Mortgage

Corporation,”

Nationstar began attempting to collect the debt. (Id. at ¶
21).
Owens-Benniefield “began to receive numerous telephone
calls from [Nationstar’s] agents in attempts to collect a
debt. . . .” (Id. at ¶ 22). Nationstar “placed multiple
automated calls per day to [Owens-Benniefield’s] cellular
telephone for several months prior to the filing of this
action.” (Id. at ¶ 23). Nationstar also used a “prerecorded
or artificial voice” during some phone calls. (Id. at ¶¶ 51,
52). Between March and April of 2016, Nationstar “placed at
least 9 collection calls to [Owens-Benniefield’s] cellular
telephone.” (Id. at ¶ 24). Owens-Benniefield also alleges
Nationstar unlawfully sent her letters in an attempt to
2

collect the forgiven debt, reported false information about
the debt to credit reporting agencies, and provided her
confidential information to third parties. (Id. at ¶¶ 26-28,
30-31).
Owens-Benniefield

initiated

a

lawsuit

against

Nationstar, Federal Home Loan Mortgage Corporation, Martin Z.
Kessler, Esq., and Kass, Shuler, P.A., in the Thirteenth
Judicial Circuit for Hillsborough County, Florida, on April
18, 2016, alleging multiple statutory and common law claims.
(Doc. # 7 at 11; Doc. # 7-1 at 6-7). As of this Order, OwensBenniefield has filed a second amended complaint in that
action, which brings a single Telephone Consumer Protection
Act

(TCPA),

47

U.S.C.

§§

227

et

seq.,

claim

against

Nationstar. (Doc. # 7-1 at 6-7). Nationstar has filed its
answer and discovery is underway. (Id. at 1-4).
Then, Owens-Benniefield initiated the present action in
this Court on March 6, 2017, alleging violations of the TCPA,
the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. §§
1692 et seq., the Fair Credit Reporting Act (FCRA), 15 U.S.C.
§§ 1681 et seq., and the Florida Consumer Collection Practices
Act (FCCPA), Fla. Stat. §§ 559.55 et seq., as well as common
law claims including fraud, negligence, breach of contract,
and intentional infliction of emotional distress. (Doc. # 1).
3

Nationstar filed the Motion to Stay and/or Abstain on March
30, 2017. (Doc. # 7). The instant Motion requests that the
Court stay Owens-Benniefield’s TCPA claim pending decision of
ACA International v. Federal Communications Commission, Case
No. 15-1211 (D.C. Cir. 2015), by the United States Circuit
Court

of

Appeals

for

the

District

of

Columbia,

or

alternatively abstain from deciding the TCPA claim pending
resolution of the state court action. Owens-Benniefield has
not responded and the time to do so has expired.
II.

Denial of Stay Pending ACA International
A

district

court

has

“broad

discretion

to

stay

proceedings as an incident to its power to control its own
docket.” Clinton v. Jones, 520 U.S. 681, 706 (1997)(citing
Landis v. N. Am. Co., 299 U.S. 248, 254 (1936)). Deciding
whether to stay a case “calls for the exercise of judgment,
which must weigh competing interests and maintain an even
balance.” Landis, 299 U.S. at 254-55.
This Court considers “several factors when evaluating a
request for a stay, including prejudice to the non-moving
party, whether the requested stay would simplify and clarify
the issues, and whether the potential stay would reduce the
burden of litigation on the parties and on the court.”
Mackiewicz v. Nationstar Mortg., LLC, No. 6:15-cv-465-Orl4

18GJK,

2015

WL

11983233,

at

*1

(M.D.

Fla.

Nov.

10,

2015)(citing Freedom Sci., Inc. v. Enhanced Vision Sys., No.
8:11-cv-1194-T-17AEP, 2012 U.S. Dist. LEXIS 11410, at *2
(M.D. Fla. Jan. 21, 2012)).
Federal courts routinely exercise their power to stay a
proceeding where a pending decision in another court would
“have a substantial or controlling effect on the claims and
issues in the stayed case.” Miccosukee Tribe of Indians of
Fla. v. S. Fla. Water Mgmt. Dist., 559 F.3d 1191, 1198 (11th
Cir. 2009); see also Coatney v. Synchrony Bank, No. 6:16-cv389-Orl-22TBS, 2016 WL 4506315, at *1 (M.D. Fla. Aug. 2,
2016)(staying

TCPA

case

because

“[t]he

issue

in

ACA

International bears directly on the instant case in that the
ruling will determine whether the equipment that Defendants
allegedly

used

to

make

telephone

calls

to

Plaintiff

is

considered an ATDS for purposes of the TCPA”).
Here, the decision of ACA International will not be
dispositive. That case questions the FCC’s redefinition of
the term “automated telephone dialing system” (ATDS) in the
agency’s July 10, 2015, Order. (Doc. # 7 at 2). But, OwensBenniefield alleges that she received calls using both an
ATDS and an artificial or prerecorded voice. (Doc. # 1 at ¶¶
23, 51-52). “Section 227 of the TCPA makes it unlawful to
5

make collection calls using an ATDS or an artificial or
prerecorded voice, so ‘plaintiffs can state a claim under the
TCPA

by

allegin[g]

the

use

of

(1)

an

“artificial

or

prerecorded voice” or (2) an ATDS.’” Gosneigh v. Nationstar
Mortg., LLC, No. 8:16-cv-3040-T-33AEP, 2017 WL 435818, at *2
(M.D. Fla. Feb. 1, 2017)(quoting Vaccaro v. CVS Pharmacy,
Inc., No. 13-CV-174-IEG RBB, 2013 WL 3776927, at *1 n.2 (S.D.
Cal. July 16, 2013)).
Thus,

ACA

Benniefield’s]
using

a

International
contention

prerecorded

or

that

“will

not

affect

[Nationstar]

automated

voice,

[Owens-

called
which

[her]
is

an

independent basis for stating a claim under the TCPA.” Sliwa
v. Bright House Networks, LLC, No. 2:16-cv-235-FtM-29MRM,
2016 WL 3901378, at *4 (M.D. Fla. July 19, 2016)(declining to
stay TCPA case pending decision of ACA International); see
also Rodriguez v. DFS Servs., LLC, No. 8:15-cv-2601-T-30TBM,
2016 WL 369052, at *3 (M.D. Fla. Feb. 1, 2016)(stating ACA
International did not warrant a stay because it would “have
no effect on the viability of Rodriguez’s lawsuit as pled in
her complaint”).
Also weighing against a stay is the uncertainty of when
the D.C. Circuit will rule. See Mancini v. JPMorgan Chase
Bank, N.A., No. 1:15-CV-61524-UU, 2016 WL 1273185, at *1 (S.D.
6

Fla.

Mar.

28,

2016)(noting

that

“[a]ny

stay

would

be

indefinite”). Furthermore, “there is always the possibility
that the D.C. Circuit’s decision will be appealed to the
Supreme Court, adding a further layer of indefinite — and
perhaps lengthy — delay were a stay to be granted here.”
Schwyhart v. AmSher Collection Servs., Inc., 182 F. Supp. 3d
1239, 1243 (N.D. Ala. 2016).
Balancing these considerations, the Court determines
that the TCPA claim should not be stayed pending decision of
ACA International.
III. Colorado River Abstention is not Warranted
A.

Legal Standard

The Colorado River doctrine “addresses the circumstances
in which federal courts should abstain from exercising their
jurisdiction because a parallel lawsuit is proceeding in one
or more state courts.” Ambrosia Coal & Constr. Co. v. Pagés
Morales, 368 F.3d 1320, 1327 (11th Cir. 2004). Federal courts
have a “virtually unflagging obligation” to exercise the
jurisdiction given to them, and the general rule is that “the
pendency of an action in the state court is no bar to
proceedings concerning the same matter in the Federal court
having jurisdiction.” Colorado River Water Conservation Dist.
v. United States, 424 U.S. 800, 817 (1976). “And while
7

abstention

as

abstention

is

circumstances

a

general

matter

particularly
than

are

is

rare,

the

other

rare,

Colorado

permissible
abstention

in

River
fewer

doctrines.”

Jackson–Platts v. Gen. Elec. Capital Corp., 727 F.3d 1127,
1140 (11th Cir. 2013). “The principles of this doctrine ‘rest
on considerations of wise judicial administration, giving
regard

to

conservation

comprehensive

of

disposition

judicial

resources

of

litigation.’”

and

Moorer

v.

Demopolis Waterworks & Sewer Bd., 374 F.3d 994, 997 (11th
Cir. 2004)(quoting Colorado River, 424 U.S. at 817, and
emphasizing

that

courts

“may

defer

to

a

parallel

state

proceeding under ‘limited’ and ‘exceptional’ circumstances”).
“To

determine

whether

abstention

is

merited

under

Colorado River, a court must decide as a threshold matter
whether there is a parallel state action — that is, ‘one
involving substantially the same parties and substantially
the same issues.’” Sini v. Citibank, N.A., 990 F. Supp. 2d
1370, 1376 (S.D. Fla. 2014)(quoting Jackson–Platts, 727 F.3d
at 1140). However, the state and federal cases need not share
identical parties and issues to be considered parallel for
purposes of Colorado River abstention. Ambrosia Coal, 368
F.3d at 1329–30; O’Dell v. Doychak, No. 6:06-cv-677-Orl19KRS,

2006

WL

4509634,

at
8

*6

(M.D.

Fla.

Oct.

20,

2006)(“Parallel proceedings do not have to involve identical
parties, issues and requests for relief.”).
Assuming

satisfaction

of

that

threshold

issue,

the

Eleventh Circuit
has catalogued six factors that must be weighed in
analyzing the permissibility of abstention, namely:
(1) whether one of the courts has assumed
jurisdiction over property, (2) the inconvenience
of the federal forum, (3) the potential for
piecemeal litigation, (4) the order in which the
fora obtained jurisdiction, (5) whether state or
federal law will be applied, and (6) the adequacy
of the state court to protect the parties’ rights.
Ambrosia Coal, 368 F.3d at 1331.
“In

addition,

the

Eleventh

Circuit

[has]

noted

two

policy considerations that may influence whether a Colorado
River abstention is appropriate: (1) whether the litigation
is ‘vexatious or reactive in nature,’ and (2) whether the
concurrent cases involve a federal statute that evinces a
policy favoring abstention.” Beepot v. J.P. Morgan Chase
Nat’l Corp. Servs., Inc., No. 3:10-cv-423-J-34TEM, 2011 WL
4529604, at *8 (M.D. Fla. Sept. 30, 2011)(citing Ambrosia
Coal, 368 F.3d at 1331).
Balancing all the factors must be “heavily weighted in
favor of the exercise of jurisdiction.” Moses H. Cone Mem’l
Hosp. v. Mercury Constr. Corp.,

9

460 U.S. 1, 16 (1983).

Throughout this analysis, there remains a “presumption in
favor

of

the

federal

court

retaining

jurisdiction.”

Am.

Bankers, 891 F.2d at 885; Moses H. Cone, 460 U.S. at 25–26
(“[O]ur task in cases such as this is not to find some
substantial reason for the exercise of federal jurisdiction
by the federal court; rather, the task is to ascertain whether
there

exist

exceptional

circumstances,

the

clearest

of

justifications, to justify the surrender of jurisdiction.”
(citation and internal quotation marks omitted)).
A stay of the parallel federal action, rather than
dismissal, is the appropriate procedural mechanism when a
court abstains under Colorado River. See Moorer, 374 F.3d at
998 (“We now join our sister circuits in holding that a stay,
not a dismissal, is the proper procedural mechanism for a
district court to employ when deferring to a parallel statecourt

proceeding

under

the

Colorado

River

doctrine.”

(citation and internal quotation marks omitted)).
B.

Analysis

Nationstar argues that the Court should abstain from
Owens-Benniefield’s TCPA claim, Count 7 of the Complaint,
because

she

is

already

bringing

a

TCPA

claim

against

Nationstar in the earlier-filed state court proceeding. (Doc.
# 7 at 11). A review of the operative complaint in state
10

court, which Nationstar attaches to its Motion, reveals the
TCPA claim in this action is parallel to the state court
action. See (Doc. # 7-1 at 5-12); see also Navarro v. City of
Riviera

Beach,

2016)(noting

192

“courts

F.

Supp.

may

take

3d

1353,

judicial

1364

(S.D.

notice

of

Fla.

public

records, such as a pleading filed in another court, because
such

documents

are

‘capable

of

accurate

and

ready

determination by resort to sources whose accuracy cannot
reasonably be questioned’” (citation omitted)).
The second amended complaint in the state case contains
only a TCPA claim against Nationstar based on the same conduct
Ownens-Benniefield complains of in the federal Complaint. In
this

action,

Owens-Benniefield

alleges

that

Nationstar

violated the TCPA by making “multiple automated calls per day
to

[Owens-Benniefield’s]

cellular

telephone

for

several

months prior to the filing of this action,” as well as making
some calls using a “prerecorded or artificial voice.” (Id. at
¶¶ 23, 51-52). Although Owens-Benniefield states she received
calls for several months and at least nine calls during March
of 2016, the Complaint cites to Exhibit R, a call log made by
Owens-Benniefield, which reports only seven calls placed on
March 17, 21, 23, 24, 25, and 30. (Doc. # 1 at 60-61). These
same seven calls are listed in Owens-Benniefield’s second
11

amended complaint as the basis for her state court TCPA claim.
(Doc. # 7-1 at 15-16). Thus, some of the calls forming the
basis of Owens-Benniefield’s TCPA claim in this Court are the
same calls underlying her state court TCPA claim. Therefore,
Owens-Benniefield’s

TCPA

claim

in

this

action

involves

substantially the same parties and substantially the same
issues as her state court action and is subject to the
Colorado River analysis. Cf. Bosdorf v. Beach, 79 F. Supp. 2d
1337, 1344 (S.D. Fla. 1999)(staying parallel federal action
under Colorado River doctrine where the “action involve[d]
the exact same defendants and claims as the state action”).
Next, the Court must balance the six factors to determine
whether abstention is warranted. The first factor is whether
one of the courts has assumed jurisdiction over property.
“[W]here there is no real property at issue, this factor does
not

favor

abstention.”

Jackson-Platts,

727

F.3d

at

1141

(internal quotation marks omitted). Thus, this factor is
neutral

as

neither

court

has

assumed

jurisdiction

over

property for the statutory TCPA claims. See Rambaran v. Park
Square Enters., Inc., No. 6:08-cv-247-Orl-19GJK, 2008 WL
4371356, at *3 (M.D. Fla. Sept. 22, 2008)(“Since the Court
must look to the assumption of jurisdiction by the federal
and state courts in the parallel proceedings, Ambrosia Coal,
12

368 F.3d at 1332, and neither the instant case nor the
parallel state case is in rem, the first factor is neutral
and does not weigh in favor of abstention.”).
The second factor, the inconvenience of the federal
forum, weighs against abstention because the federal and
state courthouses are equally convenient. See (Doc. # 7 at 13
n.6)(acknowledging that both courts are equally convenient);
see also Jackson–Platts, 727 F.3d at 1141 (noting that where
“the

federal

forum

and

the

state

forum

are

equally

convenient[,] this factor . . . cuts against abstention”).
Nationstar contends the third factor, the potential for
piecemeal litigation, weighs heavily in favor of abstention.
(Doc. # 7 at 13). But, “this factor ‘does not favor abstention
unless the circumstances enveloping those cases will likely
lead to piecemeal litigation that is abnormally excessive or
deleterious.’”

Jackson-Platts, 727 F.3d

at 1142

(quoting

Ambrosia Coal, 368 F.3d at 1333). “And this factor does not
favor abstention when litigation is ‘inevitably piecemeal.’”
Id. (quoting Am. Mfrs. Mut. Ins. Co. v. Edward D. Stone, Jr.
& Assoc., 743 F.2d 1519, 1525 (11th Cir. 1984)).
Here, the piecemeal nature of the litigation does not
appear abnormally excessive, and the litigation is inevitably
piecemeal. Neither case is great in size or complexity: the
13

state court proceeding involves a single TCPA claim against
Nationstar. Compare Colorado River, 424 U.S. at 820 (noting
the

danger

of

approximately

piecemeal
1,000

litigation

claims).

And,

in

in

a

case

this

involving

Court,

Owens-

Benniefield brings claims under the TCPA, FDCPA, FCRA, FCCPA,
and various common law causes of action. Thus, even if the
Court abstained from the TCPA claim as Nationstar requests,
Nationstar

still

must

litigate

regarding

its

conduct

surrounding collection of Owens-Benniefield’s debt in two
fora. Nationstar will still have to engage in discovery
related

to

Owens-Benniefield’s

mortgage

and

its

communications with her. Because the litigation is inevitably
piecemeal and not abnormally excessive, this factor does not
weigh in favor of abstention.
Yet, the fourth factor, the order in which the fora
obtained jurisdiction, weighs in favor of abstention. The
state court action was filed approximately eleven months
before the federal action. See (Doc. # 7 at 11). Furthermore,
the state court has proceeded farther than this action, with
the second amended complaint and Nationstar’s answer filed
and discovery underway. (Doc. # 7-1 at 1-5); see also JacksonPlatts, 727 F.3d at 1142 (“What matters is not so much the
chronological

order

in

which
14

the

parties

initiated

the

concurrent proceedings, but the progress of the proceedings
and whether the party availing itself of the federal forum
should have acted earlier.” (citation and internal quotation
marks omitted)).
“The fifth factor requires [the Court] to determine
whether

federal

law

or

state

law

provides

the

rule

of

decision.” Jackson-Platts, 727 F.3d at 1143. “The involvement
of federal law ordinarily weighs heavily in favor of the
federal court exercising jurisdiction.” Bosdorf, 79 F. Supp.
2d at 1345.

“However, if federal and state courts have

concurrent jurisdiction over a claim, this applicable law
factor becomes less significant.” Id. Here, the parallel
claims both arise under a federal statute — the TCPA. Because
the TCPA provides for concurrent jurisdiction, Mims v. Arrow
Fin. Servs., LLC, 565 U.S. 368, 376 (2012), this factor weighs
against abstention.
The sixth factor is the adequacy of the state forum. The
Eleventh Circuit has written, “We agree with the general
observation about the adequacy of the state forum, but ‘[t]he
fact that both forums are adequate to protect the parties’
rights merely renders this factor neutral.’” Jackson-Platts,
727 F.3d at 1143 (quoting Noonan S., Inc. v. Volusia Cty.,
841 F.2d 380, 383 (11th Cir. 1988))(emphasis original). As
15

she failed to file a response, Owens-Benniefield has not
argued that the state forum is inadequate. Thus, this factor
is neutral.
Additionally,

the

Court

considers

the

vexatious

or

reactive nature of the litigation. Nationstar argues this
action is vexatious because “Owens-Benniefield filed this
federal action well after the start of state court proceedings
and raises the same arguments here that she raised in state
court.” (Doc. # 7 at 13). However, Owens-Benniefield raises
numerous other claims against Nationstar in this action. The
Court cannot say that Owens-Benniefield’s initiation of this
action was vexatious, given that she is seeking relief for
other claims as well. This factor neither weighs in favor of
or against abstention.
Heavily weighing the factors in favor of jurisdiction,
the Court finds that abstention is inappropriate. The Court
acknowledges that litigation will be piecemeal to an extent:
the state and federal claims are based on some of the same
phone calls made by Nationstar, and a decision by the state
court could have a preclusive effect on Owens-Benniefield’s
TCPA claim in this Court.

But,

the threat of piecemeal

litigation is not abnormally excessive or deleterious and
thus does not favor abstention. Other factors also weigh
16

against abstention: the TCPA claims arise under federal law
and both fora are equally convenient. Only one factor, the
order in which the fora obtained jurisdiction, weighs in favor
of abstention. Thus, the Court declines to abstain.
Accordingly, it is now
ORDERED, ADJUDGED, and DECREED:
Defendant

Nationstar

Mortgage

LLC’s

Motion

to

Stay

and/or Abstain on TCPA Claim (Doc. # 7) is DENIED.
DONE and ORDERED in Chambers in Tampa, Florida, this
21st day of April, 2017.

17