District Court (Fla.) Says that a Collection Claim is a Permissive Counter-Claim to a federal TCPA Claim; Dismisses Collection Claim

In Dayhoff v. Wells Fargo Home Morg., Inc., 2014 WL 466151 (M.D.Fla. 2014), Judge Dalton dismissed a collection action without prejudice, finding that it was a permissive counter-claim to the federal TCPA claim.

Here, the Court has federal question subject matter jurisdiction over Plaintiff’s TCPA claim. Mims v. Arrow Fin. Servs., LLC, ––– U.S. ––––, ––––, 132 S.Ct. 740, 745, 181 L.Ed.2d 881 (2012) (holding that “federal and state courts have concurrent jurisdiction over private suits arising under the TCPA”). Defendant’s Counterclaim seeks to enforce the debt that was the subject of the alleged calls at issue in Plaintiff’s TCPA claim. Defendant’s foreclosure and breach of note Counterclaim is a permissive counterclaim at best. See Hunt v. 21st Mortgage Corp., No. 2:12–cv–381–RDP, 2012 WL 3903783, at *3 (N.D.Ala. Sept.7, 2012) (finding that debt-collection counterclaim was permissive, not compulsory). Further, the Court finds that the Counterclaim will substantially predominate over Plaintiff’s TCPA claim. See Campos v. W. Dental Servs., Inc., 404 F.Supp.2d 1164, 1170–71 (N.D.Cal.2005) (declining to exercise supplemental jurisdiction over debt collection counterclaim); Randall v. Nelson & Kennard, No. CV–09–387–PHX–LOA, 2009 WL 2710141, at *6 (D.Az. Aug. 26, 2009) (same); Moore v. Old Canal Fin. Corp., No. CV05–205–S–EJL, 2006 WL 851114, at *4 (D.Idaho Mar.29, 2006) (same). Accordingly, dismissal under § 1367(c)(2) is warranted.