Mason v. Indymac Federal Bank et al
Filing
42
ORDER signed by Judge Frank C. Damrell, Jr on 3/2/2010 ORDERING plaintiff's complaint is dismissed without prejudice. Civil Case Terminated. CASE CLOSED. (Matson, R)
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v. INDYMAC FEDERAL BANK; MORTGAGEIT, INC; NDEX WEST, LLC; MORTGAGE ELECTRONIC SYSTEMS, INC.; US BANK NATIONAL ASSOCIATION; MD MORTGAGE GROUP, INC.; JAMES DEVERA; KEVIN RUSCH; and DOES 1-20 inclusive, Defendants. ____________________________/ ----oo0oo---This matter is before the court on the motion of defendants' Mortgageit, Inc. ("Mortgageit") and Mortgage Electronic Registration Systems ("MERS") motion to dismiss plaintiff Delicia Mason's ("plaintiff") second amended complaint pursuant to Federal Rule of Civil Procedure ("FRCP") 12(b)(6). On February DELICIA MASON, Plaintiff, Civ. No. S-09-1836 FCD/DAD MEMORANDUM AND ORDER UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA ----oo0oo----
26, 2010, plaintiff filed an amended opposition to defendants' 1
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motions to dismiss, which included a request for leave to amend her first amended complaint. In this request, plaintiff seeks to
remove her claims under the Truth in Lending Act ("TILA") and the Real Estate Settlement Procedures Act ("RESPA") stating she is unable to obtain facts to support these claims. (Pl.'s Am. Opp'n Mot. Dismiss, filed Feb. 26, 2010, 16:2-19.) The court
interprets this as a request for dismissal of the TILA and RESPA claims. Accordingly, plaintiff's TILA and RESPA claims are See, e.g. Fed. R. Civ. Pro. 41(a); Swedberg v.
dismissed.
Marotzke, 339 F.3d 1139 (9th Cir. 2003) (defendant's filing of a motion to dismiss, pursuant to FRCP 12(b), does not prevent the plaintiff from later filing a voluntary dismissal). Dismissal of the TILA and RESPA claims leaves the complaint devoid of any federal claims. The remaining claims are state law
claims for negligence, violation of the California Rosenthal Act, breach of fiduciary duty, fraud, violation of California Business and Professions Code §§ 17200 et seq., breach of contract, breach of the implied covenant of good faith and fair dealing, and wrongful foreclosure. (Pl.'s First Am. Compl. ("Compl.").)
Subject to the conditions set forth in 28 U.S.C. § 1367(c), district courts may decline to exercise supplemental jurisdiction over state law claims. See Acri v. Varian Associates, Inc., 114 The court's decision
F.3d 999, 1000 (9th Cir. 1997)(en banc).
whether to exercise supplemental jurisdiction should be informed by values of "economy, convenience, fairness, and comity." at 1001 (citations omitted). Id.
Further, primary responsibility for
developing and applying state law rests with the state courts. Therefore, when federal claims are eliminated before trial, 2
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district courts should usually decline to exercise supplemental jurisdiction. See Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343,
350 (1988); Gini v. Las Vegas Metropolitan Police Dept., 40 F.3d 1041, 1046 (9th Cir. 1994) ("[I]n the usual case in which federal-law claims are eliminated before trial, the balance of factors . . . will point toward declining to exercise jurisdiction over the remaining state law claims.")(quoting Schneider v. TRW Inc., 938 F.2d 986, 993 (9th Cir. 1991)). accordance with 28 U.S.C. § 1367(c), the court declines to exercise supplemental jurisdiction over plaintiff's remaining state law claims. Accordingly, plaintiff's complaint is DISMISSED without prejudice. IT IS SO ORDERED. DATED: March 2, 2010 FRANK C. DAMRELL, JR. UNITED STATES DISTRICT JUDGE In
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