Bledea et al v. Indymac Federal Bank et al

Filing 81

ORDER signed by Senior Judge Lawrence K. Karlton on 4/30/2010 ORDERING The parties MAY file a brief explaining why subject matter jurisdiction over the amended complaint is proper in this court. Said briefs may not exceed ten (10)pages, and must be f iled, if at all, within fourteen (14) days of the date of this order. If no such brief is filed, the court will dismiss this suit without prejudice for lack of subject matter jurisdiction. Fed. R. Civ. P. 41(b). The hearing presently set for May 10, 2010 for the pending motions (Dkt. Nos. 68, 72, 75, and 76) is VACATED.(Matson, R)

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 11 NO. CIV. S-09-1239 LKK/GGH 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 v. ORDER INDYMAC FEDERAL BANK, MORTGAGEIT, INC., MARIPOSA MORTGAGE, INC., MORTGAGE ELECTRONIC REGISTRATION SYSTEM, INC., MARIO BURNIAS, JOSE LUIS CALLEJA, BIC D. PHO and DOES 1-20, inclusive, Defendants. / Plaintiffs in this suit bring various claims arising out of foreclosure on a mortgage. Plaintiffs' second amended complaint ("SAC") names eight defendants and nine causes of action, all invoking state law. Mortgage Electronic Registration Systems, Plaintiffs, GHEORGE BLEDEA and ELISABETA BLEDEA,

Inc., ("MERS") and MortgageIT, the only defendants to have stated appearances, have each filed motions to dismiss and to strike. Specifically, defendants move (1) to dismiss all claims against 1

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them for failure to state a claim under Fed. R. Civ. P. 12(b)(6), (2) to strike under Fed. R. Civ. P. 12(f) allegations pertaining to certain remedies argued to be unavailable under plaintiffs' claims, and (3) MERS moves to strike under Fed. R. Civ. P. 16 allegations in the SAC argued to have been added in violation of the scheduling order in this case. As a threshold issue, it is unclear whether the court should exercise subject matter jurisdiction over this suit. This suit was initially filed in federal court on the basis of federal question jurisdiction. Prior complaints alleged claims under the Truth in

Lending Act, 15 U.S.C. § 1601 et seq., ("TILA") and the Real Estate Settlement Procedures Act, 12 U.S.C. §§ 2601-2617, ("RESPA"), as well as various state law. On this basis, the court previously Order filed Marc 1, 2010 at 2

found jurisdiction to be proper. (Dkt. No. 65).

Plaintiffs' subsequently-filed SAC omits these

federal causes of action, instead alleging solely state law claims. Nor does the SAC contain any statement of jurisdiction. R. Civ. P. 8(a)(1). When all federal claims are dismissed at the pleading stage, the proper course is ordinarily to decline to continue to exercise supplemental jurisdiction over remaining state law claims. 28 C.f. Fed.

U.S.C. § 1367(c); 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 2

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over the remaining state law claims.") (quoting Schneider v. TRW Inc., 938 F.2d 986, 993 (9th Cir. 1991)). No party has briefed this issue. As ordered below, the court

grants the parties an opportunity to do so, but it appears that dismissal for lack of subject matter jurisdiction will be proper. Insofar as defendants argue that the claims fail as a matter of state law or seek remedies not afforded by state law, dismissal for lack of subject matter jurisdiction would allow these questions to be answered, if at all, by a state court upon re-filing. MERS's separate argument that plaintiffs violated the scheduling order is somewhat more complicated. The scheduling order provides that "No

further joinder of parties or amendments to pleadings is permitted except with leave of court, good cause having been shown." Order

filed Mar. 1, 2010 at 2. The court had previously granted in part defendants' motions to dismiss and strike, dismissing various claims without prejudice, and granting plaintiffs "twenty days from the date of this order in which to file an amended complaint." Order filed Feb. 25, 2010 (Dkt. No. 62). l e ave granted by the Feb. 25, 2010 MERS contends that the order solely permitted

plaintiffs to amend the deficiencies identified in that order. MERS argues that plaintiffs exceeded the scope of that leave, and thereby violated the scheduling order, by naming a new defendant in the SAC, Onewest. If the court dismisses the SAC for lack of subject matter jurisdiction, as the court candidly expects to do, it appears that striking references to Onewest will be of no consequence. Insofar 3

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as striking these references would operate as a dismissal as to Onewest, it would not be a dismissal on the merits. Thus, even if MERS's motion to strike were granted in this regard, plaintiffs would be free to file the SAC, as presently alleged, in state court. Accordingly, this issue is likely moot.1

For the reasons stated above, the court ORDERS as follows: 1. The parties MAY file a brief explaining why subject matter jurisdiction over the amended complaint is proper in this court. Said briefs may not exceed ten (10)

pages, and must be filed, if at all, within fourteen (14) days of the date of this order. If no such brief

is filed, the court will dismiss this suit without prejudice for lack of subject matter jurisdiction. Fed. R. Civ. P. 41(b). 2. The hearing presently set for May 10, 2010 for the pending motions (Dkt. Nos. 68, 72, 75, and 76) is VACATED. //// MERS further seeks sanctions for violation of the scheduling order. Fed. R. Civ. P. 16(f)(1) provides that "On motion or on its own, the court may issue any just orders, . . . if a party or its attorney . . . fails to obey a scheduling or other pretrial order." Fed. R. Civ. P. 16(f)(2) provides that "Instead of or in addition to any other sanction, the court must order the party, its attorney, or both to pay the reasonable expenses -- including attorney's fees -- incurred because of any noncompliance with this rule, unless the noncompliance was substantially justified or other circumstances make an award of expenses unjust." Here, the court declines to determine whether plaintiffs violated the scheduling order. Assuming that plaintiffs did, the court concludes that no sanction is appropriate where it is unclear whether, and if so how, addition of Onewest caused any harm to MERS. 4
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IT IS SO ORDERED. DATED: April 30, 2010.

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