Crump v. Franklin Credit Management, et al

Filing 35

MEMORANDUM and ORDER signed by Judge Frank C. Damrell, Jr., on 4/13/10, ORDERING that pltf's first amended complaint is DISMISSED without prejudice. CASE CLOSED.(Kastilahn, A)

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Because oral argument will not be of material assistance, the court orders these matters submitted on the briefs. E.D. Cal. L.R. 230(g). 1
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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA ----oo0oo---PHILLIP CRUMP, Plaintiff, v. FRANKLIN CREDIT MANAGEMENT CORPORATION; BANK OF AMERICA HOME LOANS; WMC MORTGAGE CORPORATION, et al., Defendants. ----oo0oo---This matter is before the court on the motions of (1) defendants BAC Home Loans Servicing, LP (erroneously sued as Bank of America Home Loans) and Recontrust Company, N.A. (Docket #28) and (2) WMC Mortgage Corporation (Docket #26) (collectively, "defendants") to dismiss plaintiff Phillip Crump's ("plaintiff") first amended complaint ("FAC") pursuant to Federal Rule of Civil Procedure 12(b)(6).1 On April 9, 2010, plaintiff filed NO. CIV. S-09-2378 FCD GGH MEMORANDUM AND ORDER

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statements of non-opposition to defendants' motions, in which he requested dismissal of his federal claims for relief, pursuant to the Real Estate Settlement Procedures Act ("RESPA") and the Truth in Lending Act ("TILA"), alleged against the moving defendants as well as all other defendants.2 (Docket #33, 34.)

Based on plaintiff's statements, the court dismisses the RESPA and TILA claims asserted in the FAC. See, e.g. Fed. R.

Civ. P. 41(a); Swedberg v. Marotzke, 339 F.3d 1139 (9th Cir. 2003) (a defendant's filing of a motion to dismiss, pursuant to Rule 12(b), does not prevent the plaintiff from later filing a voluntary dismissal). Dismissal of the RESPA and TILA claims leaves the complaint devoid of any federal claims. The remaining claims are state law

claims for fraud, breach of fiduciary duty, breach of contract, breach of the implied covenant of good faith and fair dealing, negligence, violation of the California Rosenthal Act, violation of California Business and Professions Code § 17200 et seq., and wrongful foreclosure. #19].) Subject to the conditions set forth in 28 U.S.C. § 1367(c), district courts may decline to exercise supplemental jurisdiction over state law claims. See Acri v. Varian Assoc., Inc., 114 F.3d (FAC, filed January 18, 2010 [Docket

In his FAC, plaintiff also named as defendants Franklin Credit Management Corporation ("Franklin"), American Dreams Homes, Therman Edwards and Victor Jenkins. He asserted a RESPA claim against Franklin, who answered the FAC on February 19, 2010 (Docket #31). Plaintiff now requests dismissal of that claim against Franklin. (Docket #33, 34.) It does not appear that American Dreams Homes, Therman Edwards or Victor Jenkins have been served, and they have not otherwise appeared in the action. No federal claims for relief are alleged against them in the FAC. 2

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999, 1000 (9th Cir. 1997) (en banc).

The court's decision

whether to exercise supplemental jurisdiction should be informed by values of "economy, convenience, fairness, and comity." at 1001 (citations omitted). Id.

Further, primary responsibility for

developing and applying state law rests with the state courts. Therefore, when federal claims are eliminated before trial, district courts should usually decline to exercise supplemental jurisdiction. 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) ("In the usual case in which federallaw claims are eliminated before trial, the balance of factors . . . will point toward declining to exercise jurisdiction over the remaining state law claims.") (quoting Schneider v. TRW Inc., 938 F.2d 986, 993 (9th Cir. 1991)). In accordance with Section

1367(c), the court declines to exercise supplemental jurisdiction over plaintiff's remaining state law claims. Plaintiff's FAC is therefore DISMISSED without prejudice.3 IT IS SO ORDERED. DATED: April 13, 2010

FRANK C. DAMRELL, JR. UNITED STATES DISTRICT JUDGE

Plaintiff's motion for leave to file an amended complaint to dismiss his federal claims for relief, noticed for hearing on June 4, 2010, is HEREBY DENIED as MOOT. 3

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