Fischer v. Bank of America et al

Filing 9

MEMORANDUM and ORDER signed by Judge Frank C. Damrell, Jr. on 4/28/2010. Plaintiff's 1 Complaint is DISMISSED and this case is REMANDED back to Sacramento County Superior Court. Copy of Remand Order sent to Sac. Superior and this action is TERMINATED. (Marciel, M)

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA ----oo0oo---RICHARD FISCHER, Plaintiff, v. BANK OF AMERICA; GREEN TREE SERVICING; FIRST NATIONAL BANK OF ARIZONA, et al., Defendants. ----oo0oo---This matter is before the court on the motion of Bank of America, N.A. and Mortgage Electronic Registration System, Inc.1 to dismiss and/or strike plaintiff Richard Fischer's ("plaintiff") complaint2 pursuant to Federal Rules of NO. CIV. S-10-454 FCD GGH MEMORANDUM AND ORDER

No other named defendant has appeared in the action.

On the basis of federal question jurisdiction, Bank of America, N.A. removed the case to this court on February 22, 2010. 1

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Civil Procedure 12(b)(6) and 12(f).3

(Docket #6.)

On April 23,

2010, plaintiff filed a statement of non-opposition to defendants' motion, 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. (Docket #7.)

Based on plaintiff's statement, the court dismisses the RESPA and TILA claims asserted in the complaint. 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 contract, breach of the implied covenant of good faith and fair dealing, violation of the California Rosenthal Act, negligence, breach of fiduciary duty, violation of California Business and Professions Code § 17200 et seq., and wrongful foreclosure. (Complaint, filed January 5,

2010, in Sacramento Superior Court [Docket #1].) 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 The court's decision

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

Because oral argument will not be of material assistance, the court orders this matter submitted on the briefs. E.D. Cal. L.R. 230(g). 2

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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 complaint is therefore DISMISSED without prejudice, and the case is HEREBY REMANDED to the Sacramento Superior Court.4 IT IS SO ORDERED. DATED: April 28, 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 May 7, 2010, is HEREBY DENIED as MOOT. 3

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