Colucci et al v. SunTrust Mortgage Incorporated

Filing 48

ORDER - IT IS ORDERED that this case is remanded to Maricopa County Superior Court. (See document for full details). Signed by Judge David G Campbell on 8/10/11. (Attachments: # 1 Copy of Remand Letter)(LAD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Steven J. Colucci and Alison M. Fry,

No. CV10-2066-PHX-DGC

Plaintiffs,

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ORDER

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vs.

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Suntrust Mortgage, Inc., a California
corporation; et al.,

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Defendants.

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On August 18, 2010, Plaintiffs filed an action in the Arizona Superior Court for

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Maricopa County against SunTrust Mortgage, Inc. (“SunTrust”) alleging violations of

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federal and Arizona laws. Doc. 1-1. Although SunTrust was not served with process

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(Doc. 1 at 2:7), it removed the action to this Court on September 27, 2010 on the basis of

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federal-question and diversity jurisdiction (id. at 2:20, 3:5). SunTrust subsequently filed

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an answer (Doc. 7), the Court held a case management conference (Doc. 11), and

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Plaintiffs filed an amended complaint on February 1, 2011 (Doc. 13).

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On July 20, 2011, the Court entered an order dismissing the case without prejudice

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as to Defendants SunTrust and Mortgage Electronic Registration Systems, Inc.

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(“MERS”) on joint stipulation by the parties. Doc. 45. The joint stipulation states that

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Plaintiffs dismiss without prejudice “all claims against Defendants SunTrust Mortgage,

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Inc. and Mortgage Electronic Registration Systems.” Doc. 44 at 1:24-26. Some of the

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claims pled in the amended complaint against SunTrust or MERS also name as parties

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one or more of the following: Branch Banking & Trust (“BBT”), TSA Title Agency

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(“TSA”), and MAX Default Services Corp. (“MAX”). Doc. 13. Plaintiffs have now

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confirmed that their dismissal of MERS and SunTrust leaves intact the claims against

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BBT, TSA, and MAX. Doc. 47.

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A motion to dismiss under Rule 12(b)(6) has been filed by BBT (Doc. 28), and the

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motion is joined by TSA and MAX (Docs. 32, 38). BBT argues in part that Plaintiffs’

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claims are barred by Arizona statute A.R.S. § 33-811(C). Doc. 28 at 4. Plaintiffs oppose

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(Doc. 33), and BBT filed a reply (Doc. 39). The parties do not request oral argument.

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The amended complaint alleges only claims under Arizona law (Doc. 13), thereby

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eliminating federal-question jurisdiction. The amended complaint also pleads claims

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against TSA, which is alleged to be an Arizona corporation (id. at ¶ 5) – an allegation

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TSA admits in its answer (Doc. 30 at 2:5). The lack of complete diversity eliminates this

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Court’s diversity jurisdiction. 28 U.S.C. § 1332.

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With federal-question and diversity jurisdiction no longer available, the Court

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concludes this case should be remanded to state court. See Carnegie-Mellon Univ. v.

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Cohill, 484 U.S. 343, 350 n.7 (1988) (“[I]n the usual case in which all federal-law claims

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are eliminated before trial, the balance of factors . . . will point toward declining to

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exercise jurisdiction over the remaining state-law claims.” (citing United Mine Workers

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of Am. v. Gibbs, 383 U.S. 715, 726 (1966))). Resolution of the remaining state-law

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claims will require application of Arizona law. Because Arizona state courts have a

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greater interest and expertise in resolving state-law issues, remanding this case will

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further principles of comity. Additionally, remand will benefit the federal system by

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allowing this Court to devote its scarce resources to resolving federal issues.

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Because the Court is remanding this case to state court, it will leave the pending
motion to dismiss to be decided by the state court.

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IT IS ORDERED that this case is remanded to Maricopa County Superior Court.

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Dated this 10th day of August, 2011.

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