Ramirez v. Bank of America, et al
Filing
20
MEMORANDUM and ORDER signed by Judge Frank C. Damrell, Jr. on 3/29/2010. Plaintiff's 1 Complaint is DISMISSED without prejudice. Action is TERMINATED. (Marciel, M)
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v. BANK OF AMERICA HOME LOANS FKA COUNTRYWIDE HOME LOANS; FLAGSTAR BANK, FSB; WESTMORT CORPORATION; VI TOUNG NGUYEN AKA VALERIA VI TUONG NGUYEN; and DOES 1-20 inclusive, Defendants. ____________________________/ ----oo0oo---This matter is before the court on the motion of defendant Bank of America, N.A., to dismiss plaintiff Sergio Ramirez's ("plaintiffs") complaint pursuant to Federal Rule of Civil Procedure ("FRCP") 12(b)(6).1
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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA ----oo0oo----
SERGIO RAMIREZ, Plaintiff,
Civ. No. S-09-3364 FCD/KJM MEMORANDUM AND ORDER
On March 2, 2010, plaintiff filed
The same day, plaintiff also filed an untimely First Amended Complaint, which contained no federal claims. The court previously vacated the hearing on the motion to dismiss as moot due to the filing of an amended complaint. However, as there are no longer any pending federal claims in either the original 1
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a statement of non-opposition, requesting that his claims for violations of the Truth in Lending Act ("TILA") and the Real Estate Settlement Procedures Act ("RESPA") be dismissed without prejudice against all defendants. (Docket # 12.) Accordingly, See, e.g. Fed.
plaintiffs' TILA and RESPA claims are dismissed.
R. Civ. Pro. 41(a); Swedberg v. 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 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, district courts should usually decline to exercise supplemental complaint or the untimely amended complaint, the court issues the following order dismissing plaintiff's action. 2
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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 29, 2010 In
FRANK C. DAMRELL, JR. UNITED STATES DISTRICT JUDGE
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