Hilburn et al v. Homecomings Financial, LLC et al

Filing 37

ORDER : IT IS ORDERED THAT:1.Homecomings Financials and GMAC Mortgages Motion for Summary Judgment [Docket No. 21] is GRANTED as to Count I.2.Count I is DISMISSED WITH PREJUDICE. The Hilburns claims are otherwise REMANDED to Minnesotas Tenth Judicia l District.3.The motion hearing on August 3, 2011, is CANCELLED.4.The Clerk of Court shall mail a certified copy of this Order to the clerk of Minnesotas Tenth Judicial District as required by 28 U.S.C. § 1447(c) (2006).LET JUDGMENT BE ENTERED ACCORDINGLY. (Written Opinion). Signed by Judge Joan N. Ericksen on August 2, 2011. (slf)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Craig L. Hilburn and Patricia A. Hilburn,
Plaintiffs,
v.

Civil No. 10-1983 (JNE/FLN)
ORDER

Homecomings Financial, LLC; GMAC
Mortgage, LLC; Ameritrust Mortgage
Corporation, LLC; and all other persons
unknown claiming any right, title, estate,
interest, or lien in the real estate described
in the complaint herein,
Defendants.
Craig and Patricia Hilburn brought this action in state court against Homecomings
Financial, LLC; GMAC Mortgage, LLC; Ameritrust Mortgage Corporation, LLC; and other
unknown persons claiming an interest in certain real estate. The Hilburns asserted the following
claims: deprivation of due process of law; intentional misrepresentation; negligent
misrepresentation; constructive misrepresentation; violations of Minn. Stat. § 550.18 (2010) and
Minn. Stat. ch. 580 (2010); and violations of the Uniform Deceptive Trade Practices Act, Minn.
Stat. §§ 325D.43-.48 (2010). They sought monetary and injunctive relief. Invoking 28 U.S.C.
§§ 1331, 1441 (2006), Homecomings Financial and GMAC Mortgage removed the action from
state court. The case is before the Court on Homecomings Financial’s and GMAC Mortgage’s
Motion for Summary Judgment. For the reasons set forth below, the Court dismisses the
Hilburns’ claim for deprivation of due process of law and otherwise remands their claims to state
court. The Court cancels the motion hearing.
Homecomings Financial and GMAC Mortgage move for summary judgment on Count I,
the Hilburns’ claim for deprivation of due process of law, on the grounds that the Hilburns have

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not experienced any damages, that there are no pending foreclosure proceedings, and that the
Hilburns cannot demonstrate the requisite government action. In response, the Hilburns state
that they “will voluntarily dismiss Count I” because “it is inapplicable to these facts.” The Court
grants Homecomings Financial’s and GMAC Mortgage’s motion with respect to Count I and
dismisses Count I as to all defendants.
The Hilburns’ remaining claims are within the Court’s supplemental jurisdiction. See 28
U.S.C. § 1367(a) (2006); cf. Cent. Iowa Power Coop. v. Midwest Indep. Transmission Sys.
Operator, Inc., 561 F.3d 904, 912 (8th Cir. 2009). A district court may decline to exercise
supplemental jurisdiction if it “has dismissed all claims over which it has original jurisdiction.”
28 U.S.C. § 1367(c)(3). Having dismissed Count I, the sole count within the Court’s original
jurisdiction, the Court declines to exercise supplemental jurisdiction over the Hilburns’
remaining claims. See Hervey v. Cnty. of Koochiching, 527 F.3d 711, 726-27 (8th Cir. 2008);
Barstad v. Murray Cnty., 420 F.3d 880, 888 (8th Cir. 2005). The Court remands them to state
court. See Lindsey v. Dillard’s, Inc., 306 F.3d 596, 599 (8th Cir. 2002).
Based on the files, records, and proceedings herein, and for the reasons stated above, IT
IS ORDERED THAT:
1.

Homecomings Financial’s and GMAC Mortgage’s Motion for Summary
Judgment [Docket No. 21] is GRANTED as to Count I.

2.

Count I is DISMISSED WITH PREJUDICE. The Hilburns’ claims are
otherwise REMANDED to Minnesota’s Tenth Judicial District.

3.

The motion hearing on August 3, 2011, is CANCELLED.

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4.

The Clerk of Court shall mail a certified copy of this Order to the clerk of
Minnesota’s Tenth Judicial District as required by 28 U.S.C. § 1447(c)
(2006).

LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated: August 2, 2011
s/ Joan N. Ericksen
JOAN N. ERICKSEN
United States District Judge

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