Logan v. ResMAE Mortgage Corp. et al

Filing 40

ORDER signed by Judge Morrison C. England, Jr on 12/23/09 DISMISSING 19 First Amended Complaint without prejudice; DENYING 25 Motion to Dismiss as moot. CASE CLOSED. (Owen, K)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 Defendants. 17 18 19 20 21 22 23 24 25 26 27 28 Because oral argument will not be of material assistance, the Court orders this matter submitted on the briefs. E.D. Cal. Local Rule 230(h). 1
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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

GAIL LOGAN, No. 2:09-cv-01632-MCE-GGH Plaintiff, v. RESMAE MORTGAGE CORP.; QUALITY LOAN SERVICE GROUP; MORTGAGE ELECTRONIC REGISTRATION SYSTEM, INC.; MSB FINANCIAL GROUP; MATT S. BROWN; and DOES 1-20, inclusive, MEMORANDUM AND ORDER

----oo0oo---Presently before the Court is a Motion by Defendants ResMae Mortgage Corp. and Mortgage Electronic Registration Systems, Inc. ("Defendants") to dismiss the First Amended Complaint ("FAC") of Plaintiff Gail Logan ("Plaintiff") for failure to state a claim upon which relief may be granted pursuant to Federal Rule of Civil Procedure 12(b)(6).1 ///

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This dispute arises out of a mortgage loan transaction that eventually led to the foreclosure of Plaintiff's home. Plaintiff

alleges several causes action including: violation of the Truth in Lending Act ("TILA"), violation of the California Rosenthal Act, Negligence, violation of the Real Estate Settlement Procedures Act ("RESPA"), Breach of Fiduciary Duty, Fraud, violation of the California Business & Professions Code § 17200 et seq., Breach of Contract, Breach of Implied Covenant of Good Faith and Fair Dealing, and Wrongful Foreclosure. Plaintiff's only federal claims are the allegations of TILA and RESPA violations. In regard to these claims, Plaintiff has

filed a Statement of Non-Opposition and a Notice of Voluntary Dismissal. The Court notes that Plaintiff's voluntary dismissal ECASH

is legally insufficient to properly dispose of the claims.

Technologies, Inc. v. Guagliardo, 35 F. App'x. 498, 499 (9th Cir. 2002) (The voluntary dismissal rule "only applies to dismissals of all claims against a particular defendant, not to dismissals of less than all claims against that defendant.") Nonetheless,

Plaintiff has made clear that she intends to abandon these claims, and the Court will regard them as discarded. With only Plaintiff's state law claims remaining, this Court ceases to have subject matter jurisdiction over the suit. There

is no diversity jurisdiction,2 and the Court declines to exercise supplemental jurisdiction over the pendant state claims. /// ///

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See FAC ¶¶ 1-6. 2

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The Supreme Court has held, "When the balance of factors indicates that a case properly belongs in state court, as when the federal law claims have dropped out of the lawsuit in its early stages and only state law claims remain, the federal court should decline the exercise of jurisdiction by dismissing the case without prejudice." U.S. 343, 351 (1988). Carnegie-Mellon Univ. v. Cohill, 484

In deference to the rules of comity, this

Court abstains from proceeding. Thus, Plaintiff's First Amended Complaint is hereby dismissed without prejudice for lack of subject matter jurisdiction. Defendants' Motion to dismiss Plaintiff's

Complaint (Docket No. 25) pursuant to Federal Rule of Civil Procedure 12(b)(6) is DENIED as moot. close the case. IT IS SO ORDERED. Dated: December 23, 2009 The Clerk is directed to

_____________________________ MORRISON C. ENGLAND, JR. UNITED STATES DISTRICT JUDGE

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