Hunt v. 21st Mortg. Corp.

AMELIA HUNT, Plaintiff/Counterclaim Defendant,

v.21st MORTGAGE CORPORATION, Defendant/Counterclaim Plaintiff.

Case No.: 2:12-CV-381-RDP

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION

Dated: September 7, 2012

MEMORANDUM OPINION

The court has before it Plaintiff's Renewed or Amended Motion to Dismiss Counterclaim of Defendant 21st Mortgage Corporation (Doc. # 32), filed on August 8, 2012. Defendant responded on August 8, 2012 (Doc. # 34) and Plaintiff filed a reply on August 12, 2012 (Doc. # 35). Plaintiff's Motion is properly under submission. For the reasons discussed below, Plaintiff's Motion is DENIED.

I. BACKGROUND

Plaintiff initiated this lawsuit in the Circuit Court of Jefferson County on December 18, 2011 (Doc. # 1-1 at 2-12). Defendant filed a motion to dismiss the complaint, or in the alternative moved for summary judgment, on January 23, 2012 (Doc. # 6-1 at 1-6). Plaintiff filed an Amended Complaint on January 31, 2012 (Doc. # 1-2 at 39-55). Plaintiff's claims arise out of a debt she owed to Defendant, and Defendant's alleged harassment in attempting to collect the debt.

Defendant removed this case to federal court based on Plaintiff's Amended Complaint on February 6, 2012 (Doc. # 1). Plaintiff filed a Motion to Remand on February 10, 2012 (Doc. # 4), and Defendant filed an Amendment to the Notice of Removal on February 14, 2012 (Doc. # 5). Insupport of removal, Defendant articulated two grounds for federal question jurisdiction. First, Plaintiff's Amended Complaint in state court asserted for the first time a federal claim under the Federal Debt Collection Practices Act, 15 U.S.C. § 1692, et seq. ("FDCPA"). Additionally, on January 18, 2012, the Supreme Court issued Mims v. Arrow Financial Services, LLC, 132 S. Ct. 740 (2012) holding that claims under the Telephone Consumer Protection Act, 47 U.S.C. § 227, et seq. ("TCPA"), which were asserted in Plaintiff's original and Amended Complaint, invoke federal question jurisdiction. Id. at 753. Defendant asserted that the court has jurisdiction over the state law claims under supplemental jurisdiction. See 28 U.S.C. § 1367. On April 16, 2012, after conducting a status and scheduling conference, the court denied Plaintiff's Motion to Remand and concluded that the court has federal subject matter jurisdiction over Plaintiff's claims.

In Plaintiff's First Amended Complaint, Plaintiff asserts that she incurred a financial obligation to Defendant prior to January 2011. (Doc. # 1-2 ¶ 4). At some point after this, she contends Defendant "began harassing [debt] collection activities against [her]" by illegally using an autodialer, predictive dialer, and pre-recorded calls to repeatedly call her cellular ("cell") phone. (Doc. # 1-2 ¶¶ 4-6, 8, 10). Plaintiff alleges that Defendant did not have permission to use an autodialer, predictive dialer, or pre-recorded call to dial her cell phone, and Plaintiff expressly revoked any permission Defendant believed it may have had. (Id. ¶¶ 7-11). Plaintiff asserts that she verbally instructed Defendant to stop making calls to her and stated that it did not have permission to call her cell phone, and that on or about August 8, 2011, she sent a letter to Defendant by certified mail instructing it to stop calling her and stating that it did not have permission to call her. (Id. ¶¶ 14-15). Plaintiff contends that Defendant received the letter on August 12, 2011. (Id. ¶ 15). Despite this letter, Plaintiff asserts that Defendant continued to use an autodialer and/or predictive dialers to repeatedly call Plaintiff's cell phone. (Id. ¶ 16). Plaintiff sent another letter to Defendant onSeptember 9, 2011, expressly revoking any permission Defendant believed it had to make phone calls to Plaintiff with an autodialer or predictive dialer. (Id. ¶ 26). Plaintiff asserts that Defendant knew or should have known that it did not have permission to repeatedly call Plaintiff in the manner described above, and contends that Defendant's motive behind these phone calls was to harass her. (Id. ¶ 28, 33). Plaintiff further alleges that Defendant repeatedly called her at all hours of the day and night, and multiple times throughout a day. (Id. ¶ 38). Plaintiff states that she was forced to simply pay Defendant whatever it claimed she owed it so that it would leave her alone. (Id. ¶ 39). Further, Plaintiff asserts that Defendant failed to identify itself as a debt collector or identify itself at all. (Id. ¶ 40).

Additionally, Plaintiff claims that at some point Defendant began directing its harassing conduct to Plaintiff's family, neighbors, and others. (Id. ¶ 38). Specifically, Defendant has called Plaintiff's husband's cell phone many times, despite Plaintiff's instruction that Defendant cease calling her husband. (Id. ¶ 41). Further, Plaintiff alleges that Defendant has called Plaintiff's sister, her husband's daughter, her husband's mother, and her neighbors asking them to deliver messages to Plaintiff, despite Plaintiff's instruction that Defendant cease contacting her family and neighbors. (Id. ¶ 42). Plaintiff states that Defendant's harassing phone calls caused her actual damages, including stress, anguish, anger, anxiety, emotional distress, fear, frustration, humiliation, embarrassment, and other emotions (Id. ¶¶ 30, 32).

Plaintiff's First Amended Complaint contains five counts to relief. (Doc. # 1-2). Plaintiff asserts violations of the TCPA (Count 1); a state law claim for negligent, reckless, wanton, malicious, and/or intentional conduct (Count 2); a state law claim for negligent hiring, training,and/or supervision of employees and/or agents (Count 3); a state law claim for invasion of privacy by intrusion upon seclusion (Count 4); and violations of the FDCPA (Count 5).

Defendant answered Plaintiff's First Amended Complaint on May 3, 2012. (Doc. # 18). On March 30, 2012, the court granted Defendant leave to file a counterclaim. (Doc. # 30). Defendant then filed an Answer and Counterclaim on March 31, 2012. (Doc. # 21). Defendant's counterclaim relates to the underlying debt and alleges Plaintiff breached her contract with Defendant to make debt payments under an installment contract for the purchase of a manufactured home. (Id.). Plaintiff filed a Motion to Dismiss Defendant's Counterclaim on June 13, 2012. (Doc. #23). On July 31, 2012, the court denied (Doc. #29) Plaintiff's Motion to Dismiss Defendant's Counterclaim (Doc. #23) and also denied Defendant's Renewed Motion to Dismiss or, in the alternative Motion for Summary Judgment (Doc. # 6). In the order denying Plaintiff's Renewed Motion to Dismiss, the court directed Plaintiff to properly brief the court regarding any supplemental jurisdiction arguments pertaining to Defendant's counterclaims. (Doc. #30). Plaintiff did so on August 2, 2012 (Doc. #32), and that is the motion before the court now.

Plaintiff asserts that Defendant's counterclaim is permissive rather than compulsory. (Doc. #32 ¶¶ 1, 11-12). Plaintiff also argues that the court should decline to exercise supplemental jurisdiction over the counterclaim. (Id. ¶ 13). Defendant filed a Response to Plaintiff's Renewed or Amended Motion to Dismiss, urging the court to exercise supplemental jurisdiction over its counterclaim for breach of contract. (Doc. #34).

II. STANDARD OF REVIEW

During the course of an action, either party, or the court, sua sponte, may assert lack of subject matter jurisdiction. Andalusia City Bd. of Educ. v. Andress, 916 F. Supp. 1179, 1180 (M.D.Ala. 1996). A party may challenge a district court's subject matter jurisdiction by filing a motion to dismiss pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. Fed. R. Civ. P. 12(b)(1).

Challenges to subject-matter jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil Procedure can exist in two substantially different forms: facial attacks and factual attacks. Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252, 1260 (11th Cir. 2009). When presented with a facial attack on the complaint, the court determines whether the complaint has sufficiently alleged subject-matter jurisdiction. Sinaltrainal, 578 F.3d at 1260. The court proceeds as if it were evaluating a Rule 12(b)(6) motion; that is, it views the complaint in the light most favorable to the plaintiff and accepts all well-pled facts alleged in the complaint as true. Id. To the contrary, factual attacks question "the existence of subject matter jurisdiction in fact, irrespective of the pleadings, and matters outside the pleadings, such as testimony and affidavits, are considered." Id. (citing Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990)). When a court is confronted with a factual attack, the standard of review diverges considerably:

[T]he trial court may proceed as it never could under 12(b)(6) or Fed. R. Civ. P. 56. Because at issue in a factual 12(b)(1) motion is the trial court's jurisdiction - its very power to hear the case - there is substantial authority that the trial court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case. In short, no presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims.

Lawrence, 919 F.2d at 1529 (citing Williamson v. Tucker, 645 F.2d 404, 412 (5th Cir. 1981) cert.denied, 454 U.S. 897 (1981)).

III. DISCUSSION

A. Defendant's Counterclaim is Permissive Not Compulsory

The Federal Rules of Civil Procedure define two types of counterclaims: compulsory and permissive. Compulsory counterclaims are those that "arise out of the transaction or occurrence that is the subject matter of the opposing party's claim." Fed. R. Civ. P. 13(a). A permissive counterclaim is any counterclaim that is not compulsory. Id. The Eleventh Circuit follows the "logical relationship" test to determine whether a counterclaim is compulsory. Republic Health...