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Sainz v. Wells Fargo Bank

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


September 28, 2010

CLAUDIA SAINZ, PLAINTIFF,
v.
WELLS FARGO BANK, N.A., AMERICAN SERVICING COMPANY, HSBC FINANCIAL, AS TRUSTEE FOR NOMURA ASSET ACCEPTANCE CORPORATION, AND DOES 1-10, INCLUSIVE, DEFENDANTS.

The opinion of the court was delivered by: Garland E. Burrell, Jr. United States District Judge

ORDER DISMISSING PLAINTIFF'S FEDERAL CLAIMS AND DECLINING SUPPLEMENTAL JURISDICTION OVER STATE CLAIMS*fn1

On August 24, 2010, Defendants filed a motion in which they seek dismissal of Plaintiff's First Amended Complaint. (ECF No. 10.) Plaintiff failed to file an opposition or statement of non-opposition to that motion as required by Local Rule 230(c). The motion was submitted without oral argument on September 22, 2010. (ECF No. 12.) Five days after the motion was submitted, Plaintiff filed an unauthorized Second Amended Complaint, which is stricken.

This case was removed to federal court based on Plaintiff's conclusory reference to federal statutes in her original Complaint. Subsequent to removal, Defendants filed a motion to dismiss Plaintiff's original Complaint which Plaintiff did not oppose, but instead filed an unauthorized First Amended Complaint. An Order issued on August 6, 2010 in which the Court explained why Plaintiff lacked authority to file her First Amended Complaint, but the Order nevertheless authorized the filing "for the sake of efficiency." (ECF No. 9.)

Plaintiff alleges in her First Amended Complaint, in a conclusory manner, violation of two federal statutes: the Federal Fair Debt Collection Act and the Real Estate Settlement Procedures Act. (ECF No. 8.) Plaintiff also alleges several state claims. Id. Plaintiff's conclusory federal claims lack sufficient factual allegations to state plausible claims. al-Kidd v. Ashcroft, 580 F.3d 949, 956 (9th Cir. 2009) (stating to avoid dismissal a plausible claim must be alleged). Since Plaintiff has been given notice in Defendants' dismissal motions of the factual insufficiency of these claims, should know that she is required to allege plausible claims, and has not shown in her stricken Second Amended Complaint that she is capable of alleging the above referenced federal claims as plausible claims, these federal claims are dismissed with prejudice.

Further, the Court will not continue exercising supplemental jurisdiction over Plaintiff's remaining state claims. See Acri v. Varian Associates, Inc., 114 F.3d 999, 1001 (9th Cir. 1997)(en banc). Therefore, the Order to Show Cause filed on September 14, 2010, is withdrawn, and Plaintiff's state claims are dismissed without prejudice under 28 U.S.C. § 1367(c)(3). This action shall be closed.


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