Forde v. National Enterprise Systems, Inc.

Filing 22

ORDER granting 15 Motion to Dismiss for Lack of Jurisdiction. Case is CLOSED. Signed by Judge James I. Cohn on 8/30/2011. (awe)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 11-61204-CIV-COHN/SELTZER
PATRICKA R. FORDE,
Plaintiff,
v.
NATIONAL ENTERPRISE SYSTEMS, INC.,
Defendant.
________________________________________/
ORDER GRANTING MOTION TO DISMISS FOR LACK OF
SUBJECT MATTER JURISDICTION
THIS CAUSE is before the Court on Defendant National Enterprise Systems,
Inc.’s Motion to Dismiss for Lack of Subject Matter Jurisdiction [DE 15] (“Motion”). The
Court has considered the Motion, Plaintiff Patricka R. Forde’s Response to Order to
Show Cause [DE 21], and the record in this case, and is otherwise advised in the
premises.
On May 24, 2011, Plaintiff filed this action for claims under the Fair Debt
Collection Practices Act, 15 U.S.C. § 1692, et seq. (“FDCPA”), and the Telephone
Consumer Protection Act, 47 U.S.C § 227, et seq. (“TCPA”). Complaint [DE 1]. The
Complaint alleges federal question jurisdiction over the FDCPA claims and
supplemental jurisdiction over the TCPA claim. See id. ¶ 2.
On August 19, 2011, pursuant to Plaintiff’s Notice of Acceptance of Defendant’s
Offer of Judgment [DE 11] and Motion for Entry of Partial Judgment [DE 12], the Court
entered Partial Judgment in favor of Plaintiff and against Defendant with respect to
Plaintiff’s FDCPA claims. Accordingly, the only remaining claim in this action is

Plaintiff’s TCPA claim.
The instant Motion requests dismissal pursuant to Federal Rule of Civil
Procedure 12(b)(1) “[b]ecause jurisdiction over the only remaining claim, Plaintiff’s
TCPA claim, lies in state court, and there exists no continued basis for this Court to
exercise supplemental jurisdiction.” Mot. at 2. The Eleventh Circuit has ruled that
“federal courts lack subject matter jurisdiction of private actions under the [TCPA].”
Nicholson v. Hooters of Augusta, 136 F.3d 1287, 1289 (11th Cir. 1998), modified, 140
F.3d 898 (11th Cir. 1998)). Therefore, there is no remaining basis for original
jurisdiction over this case. A “district court[] may decline to exercise supplemental
jurisdiction over a claim . . . if . . . the district court has dismissed all claims over which it
has original jurisdiction.” 28 U.S.C. § 1367(c)(3).
Plaintiff agrees that there is no independent federal question jurisdiction for a
claim under the TCPA, but requests that the Court use its discretion to continue
exercising supplemental jurisdiction over the claim. Resp. at 1-2. In support of her
request, Plaintiff suggests that the Court should consider that the parties “have had
three months out of a four month discovery period[] to conduct discovery,” id. at 2, and
that courts may consider the extent of the parties’ discovery efforts and the burden the
parties will bear by having to relitigate their issues in state court, see id. However,
discovery regarding the TCPA claim in this case is not complete, and Judge Seltzer has
refrained from ruling on any discovery motions pending this Court’s ruling on the instant
Motion. See, e.g., Motion to Compel [DE 13] (noting Defendant objected to discovery
requests due to Court’s potential lack of jurisdiction); Paperless Order [DE 20]
(canceling Defendant’s corporate representative’s deposition given this Court’s Order to
2

Show Cause regarding lack of subject matter jurisdiction). Plaintiff has pointed to no
specific discovery efforts that would be duplicative in a separate state court action. The
Court finds no other reason to continue exercising supplemental jurisdiction over the
TCPA claim in this case. Accordingly, it is hereby
ORDERED AND ADJUDGED that Defendant National Enterprise Systems, Inc.’s
Motion to Dismiss for Lack of Subject Matter Jurisdiction [DE 15] is GRANTED.
Plaintiff’s claim under the Telephone Consumer Protection Act (“TCPA”) is DISMISSED
without prejudice. It is further
ORDERED AND ADJUDGED that any pending motions are DENIED as moot,
and the Clerk of Court is directed to CLOSE this case.
DONE AND ORDERED in Chambers at Fort Lauderdale, Broward County,
Florida, on this 30th day of August, 2011.

Copies provided to:
Counsel of record via CM/ECF

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