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Thomas v. Wells Fargo Bank

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


February 8, 2010

KIMBERLY THOMAS, PLAINTIFF,
v.
WELLS FARGO BANK, N.A. DBA AMERICA'S SERVICING CO.; FIRST FRANKLIN, A DIVISION OF NATIONAL CITY BANK; NDEX WEST, LLC; MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.; MICHAEL DRAKE HOLDINGS, INC. DBA DRAKE MORTGAGE; MICHAEL D. DRAKE; AND DOES 1-20 INCLUSIVE, DEFENDANTS.

ORDER GRANTING DEFENDANTS' MOTION TO DISMISS

This matter comes before the Court on a Motion to Dismiss by Defendants Wells Fargo Bank, N.A. dba America's Servicing Co. ("Wells Fargo") and Mortgage Electronic Registration Systems, Inc. ("MERS"). This Court grants Defendant NDex West, LLC's ("NDex West's") Joinder to the aforementioned Motion to Dismiss.

Defendants Wells Fargo, MERS and NDex West (collectively "Defendants") move to dismiss Plaintiff Kimberly Thomas' ("Plaintiff's") Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. Plaintiff did not oppose the motion.*fn1

Plaintiff's Amended Complaint alleged six causes of action against Defendants: one federal claim for violation of the Real Estate Settlement and Procedures Act ("RESPA") 12 U.S.C. §2605 et seq., and five state law claims. After the motion to dismiss was filed, Plaintiff filed a Notice of Voluntary Dismissal. Plaintiff voluntarily dismissed, without prejudice, the RESPA claim against Defendants. Accordingly, the only claims remaining against Defendants are state law claims over which the Court declines to exercise supplemental jurisdiction. ("If the federal claims are dismissed before trial.the state law claims should be dismissed as well." Wheeler v. Payless Towing, 2010 WL 148714 at *3 (E.D. Cal. Jan. 11, 2010 (quoting United Mine Workers of Amer. V. Gibbs, 383 U.S. 715, 726 (1966)). These five claims are dismissed without prejudice to re-file in state court.

ORDER For the foregoing reasons, it is hereby ordered that the Motion to Dismiss is GRANTED with prejudice as to the RESPA claim and GRANTED without prejudice as to the remaining five state law claims.

The clerk of the court is directed to close this case.

IT IS SO ORDERED.


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