Kisner v. Bank of America NA, dba Bank of America Home Loans et al

Filing 56

ORDER denying 28 Plaintiff's motion to remand. Signed on 12/3/12 by District Judge Greg Kays. (Francis, Alexandra)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MISSOURI
SOUTHERN DIVISION
SEAN KISNER,
Plaintiff,
v.
BANK OF AMERICA, N.A. d/b/a
BAC HOME LOANS SERVICING, LP,
Defendants.

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Case No. 11-04264-CV-S-DGK

ORDER DENYING MOTION TO REMAND
This case arises out of Plaintiff Sean Kisner’s unsuccessful attempt to renegotiate the
terms of his mortgage under the Making Home Affordable program. Plaintiff alleges Defendant
Bank of America, N.A. told him he would qualify for a modified mortgage and instructed him to
make modified payments.

Kisner alleges that after successfully making several modified

payments, BOA abruptly rejected his payments and instituted foreclosure proceedings against his
home. On February 23, 2012 the Court dismissed most of Plaintiff’s claims, leaving only two
state law claims for adjudication. Since then the parties have engaged in discovery and filed
competing motions for summary judgment.
Now before the Court is Plaintiff’s Motion to Remand (Doc. 28). Plaintiff notes that
there are no longer any claims in this case over which this Court has original jurisdiction, and so
under 28 U.S.C. § 1367 this Court may remand the remaining claims. Plaintiff asserts that
remand would best serve the principles of judicial economy, procedural convenience, fairness to
litigants, and comity. Defendant has filed a response (Doc. 35) opposing the motion, and
Plaintiff has not filed any reply brief.

In determining whether to retain jurisdiction over state law claims after dismissal of
federal claims, a district court should consider “the difficulty of the state claim, the amount of
judicial time and energy already invested in it, the amount of additional time and energy
necessary for its resolution, and the availability of a state forum.” Koke v. Stifel, Nicolaus & Co.,
Inc., 620 F.2d 1340, 1346 (8th Cir. 1980).
In the present case, these factors weigh in favor of retaining jurisdiction. First, the
remaining state claims for fraudulent misrepresentation and negligent misrepresentation are not
legally or factually difficult to adjudicate. Second, this case has been before this Court for
almost one year and during that time the Court has invested a fair amount of time and effort in
this matter, as reflected in its February 23, 2012 motion to dismiss and in the other orders the
Court has issued. Third, the additional amount of time and energy necessary for its resolution
will likely not be large for this Court since it is already familiar with the facts and legal issues in
this case. Fourth and finally, the Court is firmly convinced that while a state forum is available,
it is not readily available. This case is currently set for trial in this Court on May 14, 2013. If
this case were remanded to the Circuit Court of Greene County, Missouri today, however, it is
unlikely that the state court could resolve the case before 2014. Thus, all of the Koke factors
weigh against remand, and the Court finds it would be fairer to the parties and in the interest of
justice to retain jurisdiction. Hanson v. Hancock Cnty. Mem’l Hosp., 938 F. Supp. 1419, 1434
(N.D. Iowa 1996). Accordingly, Plaintiff’s motion (Doc. 28) is DENIED.
IT IS SO ORDERED.
Dated: December 3, 2012

/s/ Greg Kays
GREG KAYS,
UNITED STATES DISTRICT JUDGE

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