The opinion of the court was delivered by: Oliver W. Wanger United States District Judge
MEMORANDUM DECISION GRANTING PLAINTIFF'S MOTION TO REMAND (Doc. 19), VACATING ORAL ARGUMENT SET FOR FEBRUARY 9, 2009, AND DIRECTING PLAINTIFF TO LODGE ORDER
Before the Court is Plaintiff Vincent Abad's motion to remand this action to the Kern County Superior Court.
Plaintiff filed a Complaint in the Kern County Superior Court on February 14, 2007 against Defendants Diversified Adjustment Service, Inc., Sprint PCS, and Does 1-20. The Complaint alleged violation of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692, against Diversified, and violation of the Rosenthal Fair Debt Collection Practices Act, California Civil Code § 1788, against Sprint PCS. The action was removed to this Court by Defendant Diversified Adjustment Service, Inc. on June 6, 2007 on the ground that Plaintiff's claim against Diversified was separate and independent from Plaintiff's claim against Sprint PCS. Sprint PCS did not join in the removal. By Stipulation and Order filed on June 25, 2008, Plaintiff dismissed the action against Diversified Adjustment Service, Inc. with prejudice pursuant to Rule 41(a)(1), Federal Rules of Civil Procedure.
Lilys D. McCoy, counsel for Plaintiff, avers:
5. The only remaining defendant, Sprint PCS, was served with the summons and complaint on or about March 26, 2007 via certified mail, return-receipt-requested pursuant to California Code of Civil Procedure section 415.40. Defendant Sprint PCS did not file a responsive pleading in the Superior Court of California, remove the action to the United States District Court or file a responsive pleading in the United States District [Court].
Because the claim upon which federal subject matter jurisdiction rests has been dismissed and there has been no substantial commitment of judicial resources to the nonfederal claim, the Court exercises its discretion pursuant to 28 U.S.C. § 1441(c) to remand this action to the Kern County Superior Court. See Albingia Versicherungs A.G. v. Schenker Intern. Inc., 344 F.3d, amended on other grounds, 350 F.3d 916 (9th Cir.2003), cert. denied, 541 U.S. 1041 (2004); See Murphy v. Kodz, 351 F.2d 163, 167-168 (9th Cir.1965).
1. Plaintiff's motion to remand this action to the Kern County Superior Court is GRANTED;
2. Oral argument set for February 9, 2009 is VACATED;
3. Plaintiff shall lodge a form of order granting the motion to remand and remanding the action to the Kern County Superior Court within five (5) court days from the date of service of this Memorandum Decision.
© 1992-2009 VersusLaw ...