Lee et al v. Sierra Pacific Mortgage Company, Inc., a California corporation et al

Filing 80

ORDER. IT IS HEREBY ORDERED that defendant's 75 motion to dismiss is DENIED without prejudice. Signed by Judge Larry R. Hicks on 7/12/2011. (Copies have been distributed pursuant to the NEF - KO)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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RICHARD F. LEE and AUNETTA M.
ROACH,

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Plaintiffs,
v.
SIERRA PACIFIC MORTGAGE
COMPANY; et al.,
Defendants.

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3:09-cv-00590-LRH-RAM
ORDER

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Before the court is defendant Greenpoint Mortgage Funding, Inc.’s (“Greenpoint”) motion

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to dismiss filed on May 23, 2011. Doc. #75.1

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I.

Facts and Background

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On December 29, 2006, plaintiffs purchased real property through a mortgage executed by

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defendant Sierra Pacific Mortgage Company. Plaintiffs defaulted on the mortgage and defendants

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initiated foreclosure proceedings. Subsequently, on September 1, 2009, plaintiffs filed a complaint

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against defendants for wrongful foreclosure. Doc. #1, Exhibit 1.

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Meanwhile, in late 2009, the United States Judicial Panel on Multi-District Litigation

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(“panel”) consolidated a series of cases in which plaintiffs alleged that MERS engaged in improper

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Refers to the court’s docket entry number.

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business practices when processing home loans. The panel assigned Judge James A. Teilborg

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(“Judge Teilborg”) to oversee these cases and preside over all issues (discovery, dispositive

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motions, settlement) except for trials. In re: Mortgage Electronic Registration Systems (MERS)

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Litigation, MDL No. 2119.

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In various transfer orders the Panel consolidated several cases, including the current matter

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Lee v. Sierra Pacific Mortgage Co., 3:09-cv-0590-LRH-RAM, with the multi-district litigation.

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However, as part of the transfer order, the Panel transferred only those claims that “relate to the

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formation and/or operation of MERS.” The Panel held that all other claims “unrelated to the

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formation and/or operation of the MERS system are separately and simultaneously remanded” to

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the district court in which they were first brought.
On April 23, 2010, Judge Teilborg issued an initial remand order. Doc. #50. However, after

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the initial order on remand, Judge Teilborg granted plaintiffs leave to file an amended complaint.

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See Doc. #1055, case no. 2:09-md-2119-JAT. On August 16, 2010, plaintiffs filed a first amended

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complaint in the multi-district litigation against defendants alleging eleven causes of action: (1)

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injunctive relief; (2) declaratory relief; (3) debt collection violations; (4) violation of Nevada’s

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Unfair and Deceptive Trade Practices Act, NRS 598.0923; (5) violation of Nevada’s Unfair

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Lending Practices Act, NRS 598D.100; (6) breach of the covenants of good faith and fair dealing;

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(7) violation of NRS 107.080; (8) quiet title; (9) fraud in the omission; (10) fraud in the

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inducement; and (11) unjust enrichment.2 Doc. #1073, case no. 2:09-md-2119-JAT.

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Subsequently, on March 21, 2011, Judge Teilborg issued an amended remand order.

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Doc. #68. Pursuant to that order Judge Teilborg remanded: (1) claim 3 for debt collection

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violations; (2) claim 4 for violation of Nevada’s Unfair Lending Practices Act, NRS 598D.100;

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(3) claim 5 for violation of Nevada’s Unfair Lending Practices Act, NRS 598D.100; (4) claim 6 for

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Plaintiffs’ unjust enrichment claim was improperly identified as the fourteenth (14) cause of
action in the first amended complaint.
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breach of the covenants of good faith and fair dealing; (5) claim 7 for violation of NRS 107.080;

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(6) claim 11 for unjust enrichment; (7) claim 1 for injunctive relief as it relates to the remanded

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claims; and (8) claim 2 for declaratory relief as it relates to the remanded claims. Id. Thereafter,

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Greenpoint filed the present motion to dismiss. Doc. #75.

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II.

Discussion

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In its motion to dismiss, defendant Greenpoint seeks dismissal of various claims including

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plaintiffs’ claims for fraud in the inducement, fraud in the omission, and quiet title. See Doc. #75.

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However, this court is without jurisdiction to address those claims which were not remanded by

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Judge Teilborg. See 28 U.S.C. § 1407(a) (any action transferred to another court by an order of the

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Judicial Panel on Multidistrict Litigation divests the transferor court of jurisdiction over any pretrial

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motion or pleading unless the action, or any separate claim or cross-claim, has been remanded to

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the transferor court); Rule 1.5 of the Rules of Procedure of the Judicial Panel on Multidistrict

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Litigation, 199 F.R.D. 425, 426 (2001). Because Greenpoint’s motion seeks to dismiss claims over

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which this court does not have jurisdiction, the court may not entertain the motion. Accordingly,

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the court shall deny Greenpoint’s motion without prejudice.

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IT IS THEREFORE ORDERED that defendant’s motion to dismiss (Doc. #75) is DENIED
without prejudice.

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IT IS SO ORDERED.

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DATED this 12th day of July, 2011.

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__________________________________
LARRY R. HICKS
UNITED STATES DISTRICT JUDGE

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