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Mason v. Indymac Federal Bank

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


March 2, 2010

DELICIA MASON, PLAINTIFF,
v.
INDYMAC FEDERAL BANK; MORTGAGEIT, INC; NDEX WEST, LLC; MORTGAGE ELECTRONIC SYSTEMS, INC.; US BANK NATIONAL ASSOCIATION; MD MORTGAGE GROUP, INC.; JAMES DEVERA; KEVIN RUSCH; AND DOES 1-20 INCLUSIVE, DEFENDANTS.

The opinion of the court was delivered by: Frank C. Damrell, Jr. United States District Judge

MEMORANDUM AND ORDER

This matter is before the court on the motion of defendants' Mortgageit, Inc. ("Mortgageit") and Mortgage Electronic Registration Systems ("MERS") motion to dismiss plaintiff Delicia Mason's ("plaintiff") second amended complaint pursuant to Federal Rule of Civil Procedure ("FRCP") 12(b)(6). On February 26, 2010, plaintiff filed an amended opposition to defendants' motions to dismiss, which included a request for leave to amend her first amended complaint. In this request, plaintiff seeks to remove her claims under the Truth in Lending Act ("TILA") and the Real Estate Settlement Procedures Act ("RESPA") stating she is unable to obtain facts to support these claims. (Pl.'s Am. Opp'n Mot. Dismiss, filed Feb. 26, 2010, 16:2-19.) The court interprets this as a request for dismissal of the TILA and RESPA claims. Accordingly, plaintiff's TILA and RESPA claims are dismissed. See, e.g. Fed. 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 First Am. 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 F.3d 999, 1000 (9th Cir. 1997)(en banc). The court's decision whether to exercise supplemental jurisdiction should be informed by values of "economy, convenience, fairness, and comity." Id. at 1001 (citations omitted). 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 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)). In 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.

20100302

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