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Wineke v. Homeq Servicing

November 9, 2009


The opinion of the court was delivered by: Irma E. Gonzalez, Chief Judge United States District Court


This case arises from Plaintiff's attempts in 2008 to obtain a loan modification on her property. After her attempts were unsuccessful, Plaintiff sued Defendants in the Superior Court for the County of San Diego, and Defendant Barclays Capital Real Estate Inc. d/b/a/ HomEq Servicing ("HomEq") removed the case to this Court. [Doc. No. 1]. Currently before the Court is Plaintiff's Motion to Remand, filed on September 29, 2009. [Doc. No. 5]. Having considered the parties' arguments, and for the reasons set forth below, the Court GRANTS Plaintiff's motion to remand the case.

In light of the remand, the Court DENIES AS MOOT Defendant's Motion to Dismiss, filed on October 26, 2009. [Doc. No. 10].


Plaintiff commenced this action on June 24, 2009, by filing a Verified Complaint in the Superior Court for the County of San Diego alleging four causes of action: (1) misrepresentation, (2) violation of California Civil Code § 2923.5, (3) violation of 15 U.S.C. §§ 1601 et seq., and (4) fraud. [Doc. No. 1, Ex. A]. On August 9, 2009, Defendant HomEq removed the case to this Court, alleging that jurisdiction was proper under 28 U.S.C. § 1331 because the Verified Complaint presented a "federal question" in the form of an alleged violation of the Truth in Lending Act ("TILA"), 15 U.S.C. §§ 1601 et seq. [Doc. No. 1].

On September 29, 2009, Plaintiff filed a Combined Motion to Amend and Motion to Remand. [Doc. No. 5]. Plaintiff's proposed amended complaint eliminated the causes of action for violations of TILA and California Civil Code § 2923.5, and added a new cause of action for breach of oral contract. [Doc. No. 8]. Because this was Plaintiff's first amendment of her complaint and because no responsive pleading has yet been filed, the Court allowed Plaintiff to amend her complaint "as a matter of course." [Doc. No. 7 (citing FED. R. CIV. P. 15(a)(1)(A))]. Subsequently, Defendant HomEq filed a Motion to Dismiss pursuant to Fed. R. Civ. P. 12(b)(6). [Doc. No. 10].


A civil action that is filed in state court may be removed if the federal district court has original jurisdiction based on either "diversity of citizenship" or a "federal question." See 28 U.S.C. § 1441(a); see also id. §§ 1331, 1332. Once the case is removed, "[a] motion to remand the case on the basis of any defect other than lack of subject matter jurisdictionmust be made within 30 days after the filing of the notice of removal." Id. § 1447(c). However, "[i]f at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shallbe remanded." Id.

Where, as here, federal jurisdiction is based on a "federal question," the question must be disclosed on the face of the complaint. Sparta Surgical Corp. v. Nat'l Ass'n of Securities Dealers, Inc., 159 F.3d 1209, 1211 (9th Cir. 1998) (citation omitted). Ultimately, the plaintiff is the "master" of his complaint, and "where he may pursue state and federal claims, he is free to pursue either or both, so long as fraud is not involved." Ultramar America Ltd. v. Dwelle, 900 F.2d 1412, 1414 (9th Cir. 1990).

State law claims that are related to a federal question claim may be removed under the doctrine of supplemental jurisdiction. 28 U.S.C. § 1367(a).*fn1 However, where the court has dismissed all claims over which it has original jurisdiction, it may decline to exercise supplemental jurisdiction over the remaining state law claims. Id. § 1367(c)(3). While the elimination of all federal claims gives the court "a powerful reason to choose not to continue to exercise jurisdiction," the court's decision to retain, dismiss, or remand the remaining supplemental claims is discretionary. Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 351-57 (1988). In making this decision, the court can take into consideration the following factors: (1) the convenience and fairness to the litigants, (2) the existence of any underlying issues of federal policy, (3) issues of comity, and (4) considerations of judicial economy. See United Mine Workers of America v. Gibbs, 383 U.S. 715, 726-27 (1966); Acri v. Varian Assoc., Inc., 114 F.3d 999, 1001 (9th Cir. 1997) (en banc) (citations omitted).


I. Timeliness of the Motion to Remand

Defendant HomEq argues that Plaintiff's motion to remand should be denied as untimely because it was filed fifty-five days after the case was removed. (Def. Opp. at 8.) In the alternative, HomEq argues that because this case was properly removed to begin with, this Court should exercise its discretion to retain jurisdiction even though the sole federal claim that was present in the original complaint was omitted from the amended complaint. (Id.)

As an initial matter, the Court agrees with HomEq that the present case was, without question, properly removed because, at the time of the removal, the complaint on its face stated a federal cause of action for an alleged TILA violation. See Albingia Versicherungs A.G. v. Schenker Int'l Inc., 344 F.3d 931, 936 (9th Cir. 2003), amended on other grounds, 350 F.3d 916 (9th Cir. 2003). The Court could also properly exercise supplemental jurisdiction over the state law claims because they formed part of the "same case or controversy" as the TILA claim. See id. at 936 (citing 28 U.S.C. ยง 1367(a)). However, once Plaintiff ...

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