Thompson v. Law Office of Joseph Onwuteaka, PC et al

Filing 19

MEMORANDUM AND ORDER granting 13 Motion to Strike Affirmative Defenses with leave to replead by 7/31/13; granting 14 Motion to Dismiss Counterclaim.(Signed by Judge Nancy F. Atlas) Parties notified.(TDR)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
MARY C. THOMPSON,
Plaintiff,
v.
LAW OFFICE OF JOSEPH
ONWUTEAKA, PC, et al.,
Defendants.

§
§
§
§
§
§
§
§

CIVIL ACTION NO. H-13-0441

MEMORANDUM AND ORDER
This Fair Debt Collection Practices Act (“FDCPA”) case is before the Court on
Plaintiff Mary C. Thompson’s Motion to Strike Affirmative Defenses [Doc. # 13] and
Motion to Dismiss Counterclaim [Doc. # 14]. Defendants neither filed a response in
opposition to either motion nor requested additional time to respond. Having
reviewed the record and applicable legal authorities, the Court grants the Motion to
Strike Affirmative Defense with leave to replead, and grants the Motion to Dismiss
Counterclaim.
Plaintiff, who resides in Titus County, Texas, filed this lawsuit alleging that
Defendants filed a debt collection lawsuit against her in Harris County even though
she neither resided in nor incurred the subject debt in Harris County. The FDCPA
requires that any legal action to collect a debt must be filed in the judicial district in

P:\ORDERS\11-2013\0441MStrikeMDCounterclaims.wpd 130619.1646

which the consumer signed the contract sued upon or in which the consumer resides
at the time the debt collection action is filed. See 15 U.S.C. § 1692i(a).
Defendants filed an Original Answer and Counterclaim [Doc. # 12] that
included a list of “Affirmative Defenses.” Rather than negate an element of the
plaintiff’s case, an affirmative defense generally relies on “other, independent facts
as a basis for negating liability that the defendant must plead and prove.” Mullins v.
TestAmerica, Inc., 564 F.3d 386, 411 (5th Cir. 2009) (emphasis added). Absent any
factual allegations to support the listed affirmative defenses, and absent any argument
from Defendants in opposition to the Motion to Strike, the Court concludes that the
affirmative defenses should be stricken with leave for Defendants to replead any
affirmative defenses together with the facts Defendants claim support each defense.
In the Counterclaim, Defendants seek attorneys’ fees based on the argument
that Plaintiff filed this lawsuit in bad faith, and to recover the debt at issue in the
underlying state court lawsuit (which was nonsuited). Defendants cite no legal basis
for their counterclaim for attorneys’ fees. To the extent Defendants seek to recover
attorneys’ fees pursuant to 15 U.S.C. § 1692k, that provision “does not give rise to an
independent cause of action but merely allows for damages after resolution of the case
on the merits.” See Spencer v. Receivables Performance Mgmt., LLC, 2013 WL
797335, *3 (S.D. Tex. Mar. 4, 2013) (citing Allen v. Scott, 2011 WL 219568, at *2–3

P:\ORDERS\11-2013\0441MStrikeMDCounterclaims.wpd 130619.1646

2

(N.D. Tex. Jan.19, 2011) (citing Perry v. Stewart Title Co., 756 F.2d 1197, 1211 (5th
Cir. 1985))). Any purported counterclaim based on Rule 11 of the Federal Rules of
Civil Procedure would be premature because there is no allegation that Defendants
have provided the 21-day notice required by Rule 11(c)(2). As a result, the Motion
to Dismiss the counterclaim for attorneys’ fees is granted.
Plaintiff seeks dismissal of the counterclaim for the underlying debt pursuant
to Rule 12(b)(1), arguing that the Court lacks subject matter jurisdiction. The Court
concludes that there exists supplemental jurisdiction over the permissive counterclaim
to collect the underlying debt. See Barcena v. Tam Fin. Corp., 2007 WL 1452598,
*3 (W.D. Tex. May 8, 2007), and cases cited therein; see also Global NAPs, Inc. v.
Verizon New England Inc., 603 F.3d 71, 76 (1st Cir. 2010); Leipzig v. AIG Life Ins.
Co., 362 F.3d 406, 410 (7th Cir. 2004).
Plaintiff argues that, even if supplemental jurisdiction exists, this Court should
decline to exercise that jurisdiction. “Section 1367(c) authorizes a court to decline to
exercise supplemental jurisdiction over a state-law claim if (1) the claim raises a novel
or complex issue of state law; (2) the claim substantially predominates over any
federal claims; (3) the district court has already dismissed all federal claims; or (4)
there are exceptional circumstances or other compelling reasons to decline
jurisdiction.” Enochs v. Lampasas County, 641 F.3d 155, 164 (5th Cir. 2011).

P:\ORDERS\11-2013\0441MStrikeMDCounterclaims.wpd 130619.1646

3

Plaintiff argues that exercising supplemental jurisdiction over the counterclaim for the
underlying debt in this case would violate the FDCPA’s prohibition against litigating
a suit to recover a debt in any forum other than where the Plaintiff resides or the debt
was incurred. Indeed, it is the alleged violation of the venue provision in § 1692i(a)
of the FDCPA that forms the basis for Plaintiff’s claims in this lawsuit. Plaintiff
resides in Titus County, Texas, located in the Texarkana Division of the Eastern
District of Texas. Defendants have filed no opposition arguing that this is not a
“compelling reason” for the Court to decline supplemental jurisdiction over the
counterclaim, and the Court concludes that the counterclaim for the underlying debt
should not be allowed to proceed in the Southern District of Texas in violation of the
FDCPA.
Based on the foregoing, it is hereby
ORDERED that Plaintiff’s Motion to Strike Affirmative Defenses [Doc. # 13]
is GRANTED, with leave for Defendants to file by July 31, 2013, an Amended
Answer and Affirmative Defenses including the factual basis for each affirmative
defense. It is further
ORDERED that Plaintiff’s Motion to Dismiss Counterclaim [Doc. # 14] is
GRANTED.

P:\ORDERS\11-2013\0441MStrikeMDCounterclaims.wpd 130619.1646

4

SIGNED at Houston, Texas, this 19th day of June, 2013.

P:\ORDERS\11-2013\0441MStrikeMDCounterclaims.wpd 130619.1646

5