Ginwright v. Exeter Finance Corp.

2016 WL 5867443 (2016)

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Nature of the Case

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Facts

P entered into a contract with BW Auto Outlet to finance the purchase of a vehicle. Within the contract, BW Auto Outlet assigned all of its rights under the contract to D. P alleges that in seeking to collect a debt under the contract, D called P's cellular phone 'hundreds of times' by means of an automatic dialing system. P asserts that he repeatedly told D to cease calling him. P alleges that D told him that they would not stop calling his cellular phone and that the calls would continue through the automatic dialing system. D filed a counterclaim alleging that P breached the original contract when he failed to make car payments, requiring D to repossess the vehicle. D contends that, following the sale of the vehicle and the application of the sale proceeds to the full amount owed, P owed a remainder of $23,782.17. P moved to dismiss D's counterclaim pursuant to Rule 12(b)(1) for lack of subject matter jurisdiction claiming that D has failed to assert any independent basis for jurisdiction over the counterclaim and that this Court may not exercise supplemental jurisdiction over the counterclaim because it is a permissive counterclaim. D claims that, since the enactment of §1367, a court may exercise supplemental jurisdiction over a permissive counterclaim, and that, in any event, its counterclaim is compulsory.