Kenworthy v. Old Republic Title & Escrow et al

Filing 83

ORDER signed by District Judge John A. Mendez on 10/31/2017 GRANTING 78 Motion to Dismiss without prejudice. The Court further declines to exercise supplemental jurisdiction over Defendant Sittners counterclaim, and DISMISSES the counterclaim without prejudice. CASE CLOSED. (Hunt, G)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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TIM KENWORTHY, Executor of
the Estate of Donald
Kenworthy,

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Plaintiff,

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No.

2:17-cv-00856-JAM-AC

ORDER GRANTING PLAINTIFF’S
MOTION TO DISMISS

v.
OLD REPUBLIC TITLE & ESCROW,
et al.,

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Defendants.
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This matter is before the Court on Plaintiff Tim Kenworthy’s

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Motion to Dismiss.

Mot., ECF No. 78.

Defendant Nationstar

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Mortgage filed a Statement of Non-Opposition, ECF No. 81, and

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Defendants Violet Blakeney and Elisabeth Sittner have not filed

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oppositions to Plaintiff’s motion.

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parties’ briefing on the motion and relevant legal authority, the

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Court will grant Plaintiff’s Motion to Dismiss and dismiss

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Defendant Sittner’s state law counterclaim without prejudice,

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closing this case. 1

After consideration of the

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This motion was determined to be suitable for decision without
oral argument. E.D. Cal. L.R. 230(g). The hearing was scheduled
for November 7, 2017.
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I.

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BACKGROUND

On April 24, 2017, Plaintiff, proceeding pro se, filed suit

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alleging violations of the Racketeer Influenced and Corrupt

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Organizations Act (RICO), 18 U.S.C. § 1961, et seq., and nine

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other state and common law claims.

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alleged that twelve named defendants and other unnamed defendants

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engaged in financial elder abuse, pressuring his deceased father

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into purchasing a home in Maui, Hawaii.

Compl., ECF No. 1.

Plaintiff

Id. at ¶¶ 19–63.

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Defendants Old Republic Title & Escrow, Deni Kawauchi,

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Homestreet Bank, Academy Mortgage, Kara Beltran, American Green

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Realty, Coldwell Banker Island Properties, and Melanie Vitale

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moved to dismiss.

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Defendant Faith Armanini filed a joinder to the motions.

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Joinder, ECF No. 54.

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against Plaintiff for $28,000, which she alleges is owed for

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renovations performed at the Maui home.

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pp. 5–7.

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Mots. Dismiss, ECF Nos. 18, 23, 29, 30, 40.

Defendant Sittner filed a counterclaim

Answer, ECF No. 22,

After Plaintiff retained counsel, pursuant to the magistrate

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judge’s order, the case was reassigned to this Court.

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No. 63; Min. Order, ECF No. 71.

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dismissed Defendants Old Republic Title & Escrow, Deni Kawauchi,

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Homestreet Bank, Academy Mortgage, Kara Beltran, American Green

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Realty, Coldwell Banker Island Properties, Melanie Vitale, and

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Faith Armanini without prejudice.

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Plaintiff now moves to dismiss the remaining defendants without

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prejudice and dismiss Defendant’s Sittner’s counterclaim.

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pp. 4–6.

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///

Mins., ECF

Plaintiff then voluntarily

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Vol. Dismiss, ECF No. 77.

Mot.,

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II.
A.

OPINION

Legal Standard
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Voluntary Dismissal After An Answer

Federal Rule of Civil Procedure 41(a) governs the voluntary

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dismissal of an action in federal court.

Rule 41(a) provides

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that “an action may be dismissed at the plaintiff’s request only

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by court order, on terms that the court considers proper,” unless

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a plaintiff files a notice of dismissal before the opposing party

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serves either an answer or a motion for summary judgment, or the

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parties stipulate to the dismissal.

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Whether to grant a Rule 41(a)(2) motion lies within the district

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court’s discretion.

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277 (9th Cir. 1980).

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unless a defendant can show it will suffer “some plain legal

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prejudice” as a result of dismissal.

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972, 975 (9th Cir. 2001).

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2.

Fed. R. Civ. P. 41(a)(1–2).

Sams v. Beech Aircraft Corp., 625 F.2d 273,
A Rule 41(a)(2) motion should be granted

Smith v. Lenches, 263 F.3d

Exercise of Supplemental Jurisdiction

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Under 28 U.S.C. § 1367, a federal court may retain

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supplemental jurisdiction over claims over which no original

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jurisdiction exists.

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jurisdiction over all claims “that are so related to claims in

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the action within such original jurisdiction that they form part

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of the same case or controversy under Article III of the United

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States Constitution.”

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brought by a plaintiff and counterclaims brought by a defendant.

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Sparrow v. Mazda Am. Credit, 385 F. Supp. 2d 1063, 1066 (E.D.

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Cal. 2005).

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Section 1367(a) grants supplemental

This section applies to state law claims

Section 1367(c) lists reasons that a district court may
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decline to exercise supplemental jurisdiction, including:
(1)

the claim raises a novel or complex issue of
State law,

(2)

the claim substantially predominates over the
claim or claims over which the district court has
original jurisdiction,

(3)

the district court has dismissed all claims over
which it has original jurisdiction, or

(4)

in exceptional circumstances, there are other
compelling reasons for declining jurisdiction.

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28 U.S.C. § 1367(c).

“[I]n the usual case in which all federal-

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law claims are eliminated before trial, the balance of factors

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. . . will point toward declining to exercise jurisdiction over

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the remaining state-law claims.”

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114 F.3d 999, 1001 (9th Cir.), supplemented, 121 F.3d 714 (9th

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Cir. 1997), as amended (Oct. 1, 1997) (quoting Carnegie-Mellon

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Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988)).

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B.

Acri v. Varian Assocs., Inc.,

Analysis
1. Plaintiff’s Claims

In this case, Plaintiff moves to dismiss his claims against

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the three remaining defendants without prejudice.

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Defendant Nationstar Mortgage has submitted that it does not

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oppose Plaintiff’s motion and Defendants Blakeley and Sittner

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have not filed oppositions to the motion.

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that Defendants have not shown that they will suffer any

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prejudice as a result of dismissal, and grants Plaintiff’s motion

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to dismiss.

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Mot. at 6.

The Court thus finds

2. Defendant Sittner’s Counterclaim

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After dismissing Plaintiff’s claims, only Defendant
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Sittner’s counterclaim remains.

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enumerated in 28 U.S.C. § 1367(c), as well as the values of

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“economy, convenience, fairness, and comity,” the Court declines

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jurisdiction over Sittner’s state law counterclaim.

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114 F.3d at 1001.

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it had original jurisdiction, so Sittner’s claim is more

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appropriately addressed in state court.

Here, considering the factors

See Acri,

The Court has dismissed all claims over which

28 U.S.C. § 1367(c)(3).

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III.

ORDER

For the reasons set forth above, the Court GRANTS the

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Plaintiff’s Motion to Dismiss without prejudice.

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further declines to exercise supplemental jurisdiction over

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Defendant Sittner’s counterclaim, and DISMISSES the counterclaim

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without prejudice.

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within this case, the Court directs the Clerk of Court to close

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the case.

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The Court

Because the Court has dismissed all claims

IT IS SO ORDERED.
Dated: October 31, 2017

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