Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.

Fischer v. Bank of America

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


April 28, 2010

RICHARD FISCHER, PLAINTIFF,
v.
BANK OF AMERICA; GREEN TREE SERVICING; FIRST NATIONAL BANK OF ARIZONA, ET AL., 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 Bank of America, N.A. and Mortgage Electronic Registration System, Inc.*fn1 to dismiss and/or strike plaintiff Richard Fischer's ("plaintiff") complaint*fn2 pursuant to Federal Rules of Civil Procedure 12(b)(6) and 12(f).*fn3 (Docket #6.) On April 23, 2010, plaintiff filed a statement of non-opposition to defendants' motion, in which he requested dismissal of his federal claims for relief, pursuant to the Real Estate Settlement Procedures Act ("RESPA") and the Truth in Lending Act ("TILA"), alleged against the moving defendants as well as all other defendants. (Docket #7.)

Based on plaintiff's statement, the court dismisses the RESPA and TILA claims asserted in the complaint. See, e.g. Fed. R. Civ. P. 41(a); Swedberg v. Marotzke, 339 F.3d 1139 (9th Cir. 2003) (a defendant's filing of a motion to dismiss, pursuant to Rule 12(b), does not prevent the plaintiff from later filing a voluntary dismissal).

Dismissal of the RESPA and TILA claims leaves the complaint devoid of any federal claims. The remaining claims are state law claims for fraud, breach of contract, breach of the implied covenant of good faith and fair dealing, violation of the California Rosenthal Act, negligence, breach of fiduciary duty, violation of California Business and Professions Code § 17200 et seq., and wrongful foreclosure. (Complaint, filed January 5, 2010, in Sacramento Superior Court [Docket #1].)

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 Assoc., 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) ("In 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 Section 1367(c), the court declines to exercise supplemental jurisdiction over plaintiff's remaining state law claims.

Plaintiff's complaint is therefore DISMISSED without prejudice, and the case is HEREBY REMANDED to the Sacramento Superior Court.*fn4

IT IS SO ORDERED.


Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.