Winsey v. Nationstar Mortgage LLC

Filing 43

ORDER: If Nationstar wishes to maintain its counterclaims, it should file a supplement showing through competent evidence the citizenship of both parties by July 24, 2017. Failure to file the supplement will result in dismissal of the counterclai ms for lack of jurisdiction. If Nationstar no longer wishes to maintain its counterclaims, the Court will entertain a motion to dismiss brought under Federal Rule of Civil Procedure 41(a)(2), which should be filed no later than July 24, 2017. Nationstar's motion to stay discovery (Doc. # 41 ) is DENIED. See Order for details. Signed by Judge Virginia M. Hernandez Covington on 7/17/2017. (DRW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
CHRISTINE WINSEY,
Plaintiff,
v.

Case No. 8:17-cv-979-T-33AEP

NATIONSTAR MORTGAGE LLC,
Defendant.
_____________________________/
ORDER
This matter comes before the Court sua sponte. Pro se
Plaintiff

Christine

Winsey

filed

her

Complaint

against

Nationstar Mortgage LLC on April 26, 2017. (Doc. # 1). After
being fully briefed, the Court dismissed Winsey’s Complaint
on June 29, 2017, and granted her until July 14, 2017, to
file an amended complaint. (Doc. # 35). Rather than filing an
amended complaint, Winsey filed two notices purporting to
void the Court’s June 29, 2017, Order. (Doc. ## 36, 38-39).
The

Court

construed

the

notices

as

motions

for

reconsideration and for recusal, and denied both. (Doc. ##
37, 40).
Winsey did not file an amended complaint. Instead, on
July 17, 2017, Winsey filed a document titled “Mandatory
Judicial Notice.” (Doc. # 42). In her most recent filing,

Winsey states: “There is no need to file an amended complaint
because [the Court’s] order is void on its face.” (Id. at 2).
As explained by the Court in its previous orders, there is no
basis for vacating or otherwise nullifying the Court’s June
29, 2017, Order. The time for filing an amended complaint has
passed

and

Winsey

has

elected

not

to

file

an

amended

complaint.
Therefore, at this juncture, this action consists solely
of Nationstar’s counterclaims. (Doc. # 25). The counterclaims
asserted against Winsey are purely state-law claims. (Id.).
And in its pleading, Nationstar bases jurisdiction on 28
U.S.C. § 1332. Among other things, § 1332 requires complete
diversity of citizenship. 28 U.S.C. § 1332; Univ. of S. Ala.
v. Am Tobacco Co., 168 F.3d 405, 412 (11th Cir. 1999). The
party invoking jurisdiction bears the burden of establishing
that the Court’s exercise of jurisdiction is proper. Bishop
v. Reno, 210 F.3d 1295, 1298 (11th Cir. 2000).
Nationstar is a limited liability company. (Doc. # 25 at
¶ 1). Although Nationstar’s counterclaim alleges it “is a
foreign limited liability company, authorized to and doing
business in the States of Florida, with its principal place
of business in Texas,” Nationstar does not allege its members’
citizenships.

Rolling

Greens

2 

MHP,

L.P.

v.

Comcast

SCH

Holdings L.L.C., 374 F.3d 1020, 1021 (11th Cir. 2004) (stating
that an LLC is a citizen of every state of which its members
are citizens). An additional hurdle exists with respect to
establishing

diversity

of

citizenship.

Nationstar’s

counterclaim merely alleges Winsey’s residency. (Doc. # 25 at
¶ 2). The key to diversity, however, it citizenship. Taylor
v. Appleton, 30 F.3d 1365, 1367 (11th Cir. 1994). As such,
the Court cannot determine whether the requirements of § 1332
are met.
If Nationstar wishes to maintain its counterclaims now
that all of the original claims have been dismissed and the
time for filing an amended complaint has expired, Nationstar
should file a supplement showing through competent evidence
the citizenship of both parties. If, however, Nationstar no
longer

wishes

to

maintain

its

counterclaims

given

the

aforesaid dismissal, the Court will entertain a motion to
dismiss

brought

under

Federal

Rule

of

Civil

Procedure

41(a)(2). See Borden v. Saxon Mortg. Servs., Inc., 469 Fed.
Appx. 752, 754-55 (11th Cir. 2012) (noting district court did
not

abuse

discretion

by

granting

counterclaimant’s

Rule

41(a)(2) motion to dismiss after original claims had been
disposed of where no extensive discovery had occurred with
respect to the counterclaim).

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Finally, regardless of whether the counterclaims go
forward, Nationstar’s pending motion to stay discovery (Doc.
# 41) is denied. The motion to stay seeks a stay of the
deadline’s

imposed

by

the

Court’s

fast-track

scheduling

order, which was entered because the Complaint asserted a
claim under the FDCPA (a type of action the undersigned fasttracks as standard practice). The FDCPA claim was the sole
cause of action fast tracked by the undersigned. Thus, if
this case goes forward, the scheduling order would be vacated
and a new, standard case management and scheduling order
entered.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
(1)

If Nationstar wishes to maintain its counterclaims, it
should

file

a

supplement

showing

through

competent

evidence the citizenship of both parties by July 24,
2017. Failure to file the supplement will result in
dismissal of the counterclaims for lack of jurisdiction.
(2)

If

Nationstar

no

longer

wishes

to

maintain

its

counterclaims, the Court will entertain a motion to
dismiss brought under Federal Rule of Civil Procedure
41(a)(2), which should be filed no later than July 24,
2017.

4 

(3)

Nationstar’s motion to stay discovery (Doc. # 41) is
DENIED.
DONE and ORDERED in Chambers in Tampa, Florida, this

17th day of July, 2017.

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