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Osten E. Saugstad v. American Home Mortgage ) Servicing

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


March 25, 2011

OSTEN E. SAUGSTAD,
PLAINTIFF,
v.
AMERICAN HOME MORTGAGE ) SERVICING, INC.; UMOC LENDING,INC.; OPTION ONE MORTGAGE CORPORATION; DANIEL BROWN MORTGAGE DBA UMOC LENDING, INC.; DANIEL CHARLES BROWN; SONJA WINDIFRED GORMAN; AND DOES 1-20, INCLUSIVE, DEFENDANTS.

ORDER DENYING DEFENDANT'S MOTION TO DISMISS, AND DISMISSING CASE FOR LACK OF JURISDICTION

This matter is before the Court on Defendant Sonja Windifred Gorman's ("Defendant") Motion to Dismiss (Doc. #46) Plaintiff Osten E. Saugstad's First Amended Complaint ("FAC") (Doc. #11). Defendant seeks dismissal of this matter for lack of jurisdiction under Federal Rule of Civil Procedure 12(b)(1), or in the alternative, for failure to state a claim pursuant to Rule 12(b)(6). Plaintiff did not file an opposition or statement of non-opposition in response to the motion. This motion was set for hearing on March 23, 2011, but ordered submitted on the briefs.*fn1

Because Defendant filed an Answer to the FAC on March 12, 2010

(Doc. #20), the Court must deny the Motion to Dismiss. Even though 4 the motion was unopposed, nevertheless the Court cannot as a matter 5 of law grant the motion (see Federal Rule of Civil Procedure 12(b)). 7

However, because only state law claims remain against Defendant (who is the only remaining defendant in this case), and 9 application of federal law is not a substantial or necessary element of the claims, the Court is exercising its discretion to sua sponte dismiss the case for lack of jurisdiction. See Meza v. Matrix Servicing, 2010 WL 366623, *3 (E.D. Cal. Jan. 26, 2010). Accordingly, the case is dismissed for lack of jurisdiction.

ORDER

For the reasons set forth above, the Motion to Dismiss is DENIED. However, the Court is dismissing this case for lack of jurisdiction. Accordingly, this case is dismissed without prejudice.

IT IS SO ORDERED.


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