Noriega v. Magno

Filing 31

ORDER GRANTING DEFENDANT'S MOTION TO DISMISS; DENYING AS MOOT DEFENDANT'S MOTION TO STRIKE CLASS ALLEGATIONS; DISMISSING COMPLAINT WITH LEAVE TO AMEND; VACATING HEARING. If plaintiff wishes to file a First Amended Complaint, she shall do so no later than January 31, 2022. Signed by Judge Maxine M. Chesney on January 7, 2022. (mmclc1, COURT STAFF) (Filed on 1/7/2022)

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Case 3:21-cv-07528-MMC Document 31 Filed 01/07/22 Page 1 of 2 1 2 3 4 IN THE UNITED STATES DISTRICT COURT 5 FOR THE NORTHERN DISTRICT OF CALIFORNIA 6 7 BETTY NORIEGA, Plaintiff, 8 9 10 United States District Court Northern District of California 11 v. ROSE MAGNO, DDS, an individual, d/b/a EMERYVILLE DENTAL CARE Defendant. Case No. 21-cv-07528-MMC ORDER GRANTING DEFENDANT'S MOTION TO DISMISS; DENYING AS MOOT DEFENDANT'S MOTION TO STRIKE CLASS ALLEGATIONS; DISMISSING COMPLAINT WITH LEAVE TO AMEND; VACATING HEARING 12 13 Before the Court are two motions filed by defendant Rose Magno, DDS: (1) 14 "Motion to Dismiss Class Action Complaint," filed December 6, 2021; and (2) "Motion to 15 Strike Class Allegations," also filed December 6, 2021 The motions have been fully 16 briefed. Having read and considered the papers filed in support of and in opposition to 17 the motions, the Court deems the matters appropriate for determination on the parties' 18 respective written submissions, VACATES the hearing scheduled for December 14, 19 2022, and rules as follows: 20 1. To the extent defendant seeks dismissal of Count I, by which plaintiff Betty 21 Noriega asserts a claim under the Truth in Lending Act ("TILA"), the motion to dismiss is 22 hereby GRANTED for the reasons stated by defendant. (See Def.'s Mot. at 13:7.5 – 23 8:23.) Specifically, plaintiff fails to allege facts to support her conclusory assertion that 24 defendant is a "creditor." See 15 U.S.C. § 1640(a) (providing only "creditor" can be liable 25 for violation of TILA); 15 U.S.C. § 1602(g) (defining "creditor"); Robey-Harcourt v. 26 Bencorp Financial Co., 212 F. Supp. 2d 1332, 1334 (W.D. Okla. 2002) (holding "creditor," 27 for purposes of TILA, does not include "arranger of credit"). 28 2. The Court's jurisdiction over the remaining Counts, specifically, Counts II Case 3:21-cv-07528-MMC Document 31 Filed 01/07/22 Page 2 of 2 1 through VII, is supplemental in nature. (See Compl. ¶ 11.) Where, as here, a court has 2 dismissed the sole claim over which it has original jurisdiction, it may decline to exercise 3 supplemental jurisdiction over the remaining claims. See 28 § 1367(c)(3). In this 4 instance, given the early stage of the proceedings, the Court finds it appropriate to 5 decline to exercise supplemental jurisdiction, and, accordingly, hereby DISMISSES 6 Count II through VII without prejudice to filing in state court. 7 8 9 10 United States District Court Northern District of California 11 3. In light of the dismissal of all claims in the Complaint, defendant's motion to strike the class allegations is hereby DENIED as moot. 4. If plaintiff wishes to file a First Amended Complaint, she shall do so no later than January 31, 2022. IT IS SO ORDERED. 12 13 Dated: January 7, 2022 MAXINE M. CHESNEY United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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