Castro v. Network Financial Company et al

Filing 65

ORDER: This action is remanded to the California Superior Court for the County of San Diego, where it was originally filed and assigned Case No. 37-2009-00080288-CU-OR-SC. Signed by Judge William Q. Hayes on 7/9/2012. (All non-registered users served via U.S. Mail Service; certified copy: Calif. Superior Court, San Diego County, Chula Vista location.) (mdc)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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GEORGE CASTRO,

CASE NO. 10cv243 WQH (KSC)

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Plaintiff,
vs.
NETWORK FINANCIAL COMPANY,
ADVOCATE FOR FAIR LENDING,
LLC, MARK A. SHOEMAKER, LAW
OFFICE OF MARK A. SHOEMAKER,
APC, NDEX WEST, LLC, LAW OFFICE
OF MARK A. SHOEMAKER, APC, all
persons unknown claiming any legal or
equitable right, title, estate, lien or interest
in the Property adverse to Plaintiff’s title,
or any cloud on Plaintiff’s title to the
property, and DOES 1-100,

ORDER

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Defendants.

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MARK A. SHOEMAKER,
Counter-Claimant,
vs.
GEORGE CASTRO, NETWORK
FINANCIAL COMPANY, US BANK
NATIONAL ASSOCIATION,
AMERICA’S SERVICING COMPANY,
NDEX WEST, LLC, ANDREW H.
GRIFFIN, III, and DOES 1 through 10,
Counter-Defendants.

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10cv243 WQH (KSC)

1 HAYES, Judge:
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On December 31, 2009, Plaintiff initiated this action by filing suit in Superior Court

3 of California for the County of San Diego against Network Financial Company, Advocate
4 for Fair Lending, LLC, Mark A. Shoemaker, Law Office of Mark A. Shoemaker, APC,
5 Ndex West LLC, America’s Servicing Company (“ASC”), and U.S. Bank. The Complaint
6 contained claims for violation of the Real Estate Settlement Procedures Act (“RESPA”)
7 under 12 U.S.C. § 2605 and the Truth in Lending Act (“TILA”) under 15 U.S.C. § 1601.
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On January 29, 2010, Defendants ASC and U.S. Bank filed a Notice of Removal

9 removing the case to this Court asserting that federal question jurisdiction supported the
10 removal. Defendants Advocate for Fair Lending, LLC, the Law Office of Mark A.
11 Shoemaker, APC, Mark A. Shoemaker, and Ndex West LLC filed notices of consent to
12 removal.
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On February 5, 2010, Defendants ASC and U.S. Bank filed a Motion to Dismiss which

14 was granted on April 27, 2010.
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On July 13, 2010, Plaintiff filed his First Amended Complaint against the same

16 Defendants. The First Amended Complaint contains the following federal claims: violation
17 of RESPA against Network Financial Company and violation of TILA against Network
18 Financial Company. The remaining claims are asserted under state laws.
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On July 30, 2010, Defendants ASC and U.S. Bank filed a Motion to Dismiss Plaintiff’s

20 First Amended Complaint. On August 25, 2010, the parties filed a stipulation that Defendants
21 ASC and U.S. Bank should be dismissed with prejudice. On October 18, 2010, Defendants
22 ASC and U.S. Bank were dismissed with prejudice.
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On January 26, 2012, the Magistrate Judge conducted a status conference. On February

24 2, 2012, the Magistrate Judge issued an order stating: “As to ... Network Financial Company,
25 there is nothing in the docket to confirm this entity has ever been served and no counsel has
26 ever appeared on its behalf.... Plaintiff is therefore ordered to serve the First Amended
27 Complaint on ... Network Financial Company, no later than February 17, 2012 and file proofs
28 of service with the Court, no later than February 22, 2012. Defendants will have 20 days to file
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10cv243 WQH (KSC)

1 responsive pleadings from the date of service.” (ECF No. 34 at 2).
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On March 9, 2012, Defendant Mark A. Shoemaker filed an Answer and filed a Counter-

3 claim asserting claims for indemnity against George Castro, Network Financial Company, U.S.
4 Bank National Association, ACS, Ndex West LLC, and Andrew H. Griffin, III.
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On April 6, 2012, NDEx West, LLC filed a Motion to Dismiss the Counter-Claim. On

6 April 20, 2012, George Castro and Andrew H. Griffin, III filed a Motion to Dismiss the
7 Counter-Claim.
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To date, a proof of service for Network Financial Company has not been filed.

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On June 11, 2012, this Court issued an Order stating:

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In this case, Plaintiff has asserted two claims pursuant to federal
statutes against Network Financial Company. However, Plaintiff has
failed to serve Network Financial Company. Plaintiff has not asserted
that this Court has subject matter jurisdiction pursuant to diversity.
Based on the record, the Court finds that federal question jurisdiction
is lacking. ... The Court declines to exercise supplemental jurisdiction
over the state law claims.
This case was removed from state court. ... Pursuant to 28
U.S.C. § 1447(c), this action should be remanded to the California
Superior Court for the County of San Diego, where it was originally
filed and assigned Case No. 37-2009-00080288-CU-OR-SC....

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The parties are ORDERED TO SHOW CAUSE why this case
should not be remanded to state court for lack of subject matter
jurisdiction and/or why this Court should exercise supplemental
jurisdiction by no later than July 2, 2012. If the parties fail to respond
to this Order the case will be remanded to state court.

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(ECF No. 62 at 3-4).
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On June 13, 2012, Plaintiff filed a statement of no opposition to the Order to Show
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Cause. No other party filed a response to the Order to Show Cause.
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IT IS HEREBY ORDERED that this action is remanded to the California Superior
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Court for the County of San Diego, where it was originally filed and assigned Case No.
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37-2009-00080288-CU-OR-SC
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DATED: July 9, 2012
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WILLIAM Q. HAYES
United States District Judge

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10cv243 WQH (KSC)