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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 DEFENDANT'S MOTION TO DISMISS

This matter comes before the Court on a Motion to Dismiss by Defendant First Franklin ("Defendant"). Defendant moves 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.

Defendant also brings a Motion to Strike pursuant to Federal Rule of Civil Procedure 12(f). Plaintiff opposes the motions.*fn1

Plaintiff's Amended Complaint alleged eight causes of action against Defendant: two federal claims for violation of the Truth in Lending Act ("TILA") 15 U.S.C. §1601 et seq., and the Real Estate Settlement and Procedures Act ("RESPA") 12 U.S.C. §2605 et seq., and six state law claims. After the motion to dismiss and motion to strike were filed, Plaintiff filed a Notice of Voluntary Dismissal. Plaintiff voluntarily dismissed, without prejudice, the TILA and RESPA claims against Defendant. All that remains for this Court to decide are the state law causes of action.

Pursuant to 28 U.S.C. §1367, in any civil action in which the district court has original jurisdiction, the district court also has supplemental jurisdiction over all other claims in the action which form part of the same Article III case or controversy. Wheeler v. Payless Towing, 2010 WL 148714 at *3 (E.D. Cal. Jan. 11, 2010). However, "if the federal claims are dismissed before trial. . . the state law claims should be dismissed as well." Id. (quoting United Mine Workers of Amer. v. Gibbs, 383 U.S. 715, 726 (1966).

In the present case, Plaintiff has voluntarily dismissed all her federal claims, leaving only state law claims. The Court declines to exercise supplemental jurisdiction over the remaining state law claims. Accordingly, the six state law causes of action are dismissed without prejudice.

ORDER After carefully considering the papers submitted in this matter, Defendant's Motion to Dismiss is hereby GRANTED. The federal TILA and RESPA claims against First Franklin are dismissed, with prejudice. The six state law claims are dismissed, without prejudice to re-file in state court.*fn2

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

IT IS SO ORDERED.


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