Lingad v. Indymac Federal Bank et al

Filing 55

ORDER signed by Judge Garland E. Burrell, Jr on 4/12/2010 re 48 ORDERING that the Court declines to continue exercising supplemental jurisdiction over the state law claims alleged in Plaintiff's first amended complaint and they are dismissed without prejudice under 28 U.S.C. 1367(c)(3). Accordingly, this case shall be closed. CASE CLOSED. (Duong, D)

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 v. INDYMAC FEDERAL BANK; MORTGAGEIT, INC.; MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.; FRANK HOI CHEUNG WONG, ALAN LINGAD, Plaintiff, ) ) ) ) ) ) ) ) ) ) ) ) ) IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

2:09-cv-02347-GEB-JFM ORDER DECLINING TO EXERCISE SUPPLEMENTAL JURISDICTION OVER PLAINTIFF'S STATE LAW CLAIMS

MortgageIT, Inc. ("MortgageIT") has filed a dismissal motion under Federal Rule of Civil Procedure 12(b)(6), in which it challenges the sufficiency of allegations in Plaintiff's first amended complaint, and a motion under Federal Rule of Civil Procedure 12(f) to strike certain portions of Plaintiff's first amended complaint. Plaintiff

filed a "Statement of Non-Opposition" in which Plaintiff states in pertinent part: Plaintiff's original Complaint in this matter contained a First Cause of Action under the Truth in Lending Act, 15 U.s.C. § 1604 ("TILA") and a Fourth Cause of Action under the Real Estate Settlement Procedures Act, 12 U.S.C. § 2605 ("RESPA"). Plaintiff has subsequently filed his First Amended Complaint (Docket No. 42) which 1

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removes these, and any other, federal causes of action. Plaintiff hereby requests that all claims against all Defendants herein be dismissed, without prejudice, or, in the alternative, that Plaintiff be granted leave to amend so as to clarify the factual assertions regarding the roles, residence, citizenship, and actions of the parties hereto, and otherwise correct such deficiencies as are addressed in the Defendants' pending Motions regarding Plaintiffs' First Amended Complaint (Docket No. 42), herein. As the Court is aware, jurisdiction in this matter was originally based upon "federal questions" arising from Plaintiff's Causes of Action under TILA and RESPA. No issue has been raised herein regarding diversity of the parties, and Plaintiff asserts that no basis for "diversity" jurisdiction exists in this cause. Accordingly, if the TILA and RESPA claims are dismissed, or removed through amendment, there is no proper basis for federal jurisdiction over the remaining state law issues. Plaintiff therefore respectfully requests that the Court dismiss all claims against all Defendants herein, without prejudice, or, in the alternative, grant the Plaintiff leave to amend his Complaint as described above. (Pl.'s Statement of Non-Opposition 1:24-2:5.)

15 Since Plaintiff's first amended complaint does not contain 16 a federal claim, the Court may decide, under 28 U.S.C. § 1367(c)(3), 17 whether to continue exercising supplemental jurisdiction over 18 Plaintiff's remaining state law claims. 19 Inc., 114 F.3d 999, 1001 n.3 (9th Cir. 1997) (en banc) (suggesting 20 that district court may, but need not, sua sponte decide whether to 21 continue exercising supplemental jurisdiction under 28 U.S.C. § 22 1367(c)(3) once all federal law claims have been dismissed). 23 U.S.C. § 1367(c)(3), a district court "may decline to exercise 24 supplemental jurisdiction over a [state law] claim" if "the district 25 court has dismissed all claims over which it has original jurisdiction 26 . . . ." 27 U.S.C. § 1367(c)(3) should be informed by the values of economy, 28 2 The decision to decline supplemental jurisdiction under 28 Under 28 See Acri v. Varian Assocs.,

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convenience, fairness and comity as delineated by the Supreme Court in United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726 (1996). 114 F.3d at 1001. Since state courts have the primary responsibility for developing and applying state law, the Gibbs values do not favor retaining jurisdiction in this case. See Acri, 114 F.3d at 1001 Acri,

(stating that "in the usual case in which all federal-law claims are eliminated before trial, the balance of factors will point towards declining to exercise jurisdiction over the remaining state-law claims" (quotations and citation omitted)); Curiel v. Barclays Capital Real Estate Inc., No. S-09-3074 FCD/KJM, 2010 WL 729499, at *1 (E.D. Cal. Mar. 2, 2010) (stating "primary responsibility for developing and applying state law rests with the state courts" and declining to exercise supplemental jurisdiction after dismissal of the federal claims); Anderson v. Countrywide Fin., No. 2:08-cv-01220-GEB-GGH, 2009 WL 3368444, at *5 (E.D. Cal. Oct. 19, 2009) (finding that "the Gibbs values do not favor continued exercise of supplemental jurisdiction" once all federal claims have been resolved). Therefore, the Court

declines to continue exercising supplemental jurisdiction over the state law claims alleged in Plaintiff's first amended complaint and they are dismissed without prejudice under 28 U.S.C. § 1367(c)(3). Accordingly, this case shall be closed. Dated: April 12, 2010

GARLAND E. BURRELL, JR. United States District Judge

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