Brosnan v. Deutsche Bank National Trust Company et al

Filing 54

ORDER GRANTING UNOPPOSED MOTION TO SET ASIDE DEFAULT AGAINST CARRINGTON MORTGAGE SERVICES LLC; GRANTING PLAINTIFF'S REQUEST TO WITHDRAW MOTION TO VACATE ORDER; DISMISSING WITHOUT PREJUDICE STATE LAW CLAIMS AGAINST CARRINGTON MORTGAGE SERVICES FOR REASONS SET FORTH IN FEBRUARY 2, 2009 ORDER re 40 , 51 , 36 . (SI, COURT STAFF) (Filed on 3/30/2009)

1 2 3 4 5 6 7 8 9 10 United United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I. Plaintiff's motion to vacate By order filed February 2, 2009, the Court declined to exercise supplemental jurisdiction over numerous state law claims alleged in the complaint, and dismissed those claims without prejudice. As a result of that order, the only claim that remains is plaintiff's first cause of action for illegal wiretapping in violation of 18 U.S.C. § 2511, alleged against defendants Deutsche Bank, Winders and Carrington Mortgage Services, LLC ("CMS"). On February 18, 2009, plaintiff filed a motion to vacate the February 2, 2009 order, and sought leave to amend the complaint to allege state law claims based on diversity jurisdiction. (Docket No. 40). Plaintiff's motion to vacate the February 2, 2009 order, and defendant Carrington Mortgage Services LLC's motion to set aside default are scheduled for a hearing on April 3, 2009. Pursuant to Civil Local Rule 7-1(b), the Court determines that the matters are appropriate for resolution without oral argument, and VACATES the hearing. v. DEUTSCHE BANK NATIONAL TRUST CO., et al., Defendants. / JOHN BROSNAN, Plaintiff, No. C 08-4049 SI ORDER GRANTING UNOPPOSED MOTION TO SET ASIDE DEFAULT AGAINST CARRINGTON MORTGAGE SERVICES LLC; GRANTING PLAINTIFF'S REQUEST TO WITHDRAW MOTION TO VACATE ORDER; DISMISSING WITHOUT PREJUDICE STATE LAW CLAIMS AGAINST CARRINGTON MORTGAGE SERVICES FOR REASONS SET FORTH IN FEBRUARY 2, 2009 ORDER IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Plaintiff now seeks to withdraw that motion because it appears that there is no diversity jurisdiction. The Court GRANTS plaintiff's request to withdraw, and deems the motion to vacate withdrawn. (Docket Nos. 40, 51).

II.

CMS' motion to set aside default Default was entered against CMS on December 18, 2008. On January 30, 2009, CMS filed a

motion to set aside the default on the ground of excusable neglect of counsel. CMS asserts that its attorney miscalendared the date for filing a response to plaintiff's complaint. Plaintiff has not opposed CMS's motion. The Court finds that CMS has established good cause to set aside the default, and GRANTS defendant's motion. (Docket No. 36). For the reasons set forth in the February 2, 2009 order, the Court declines to exercise supplemental jurisdiction over any state law claims alleged against CMS, and thus the only claim that is proceeding is plaintiff's claim for illegal wiretapping against Deutsche Bank, Winders and CMS. CMS shall file its answer to the complaint no later than April 3, 2009.

CONCLUSION For the foregoing reasons, the Court GRANTS plaintiff's request to withdraw the motion to vacate and deems that motion withdrawn, and GRANTS defendant CMS's motion to set aside the entry of default. The Court shall hold a case management conference with the remaining parties on May 1, 2009 at 2:30 pm.

IT IS SO ORDERED.

Dated: March 30, 2009

SUSAN ILLSTON United States District Judge

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