Cram v. La Mirada Owners Association, Inc. et al

Filing 56

MEMORANDUM OPINION AND ORDER declining to decide 46 MOTION for Summary Judgment filed by La Mirada Owners Association Inc.; granting in part and declining to decide in part 48 MOTION for Summary Judgment filed by Wells Fargo Home Mortgage; and denying without prejudice as moot 53 MOTION to Extend Trial Date filed by Elena Cram. (Ordered by Senior Judge Sidney A Fitzwater on 6/11/2019) (Senior Judge Sidney A Fitzwater)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
ELENA CRAM,
Plaintiff,
VS.
LA MIRADA OWNERS
ASSOCIATION, INC., et al.,
Defendants.

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§ Civil Action No. 3:17-CV-0475-D
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MEMORANDUM OPINION
AND ORDER
Plaintiff Elena Cram (“Cram”), now proceeding pro se, sues defendants La Mirada
Owners Association, Inc. (“La Mirada”), Wells Fargo Home Mortgage, a division of Wells
Fargo Bank, N.A. (“Wells Fargo”), and Flight 2010, LLC (“Flight 2010”), asserting various
state-law claims and alleging against Wells Fargo a claim for violation of the Real Estate
Settlement Procedures Act of 1974 (“RESPA”), 12 U.S.C. §§ 2601-2617. La Mirada and
Wells Fargo move for summary judgment. For the reasons that follow, the court grants
Wells Fargo’s motion for summary judgment on Cram’s RESPA claim and dismisses this
claim with prejudice. The court declines to exercise supplemental jurisdiction over the
remaining state-law claims and dismisses these claims without prejudice. Consequently, the
court does not reach the merits of La Mirada’s motion for summary judgment.
I
Cram, a citizen of Texas, filed this lawsuit in state court alleging state-law claims
against defendants Wells Fargo and La Mirada. Wells Fargo, a citizen of South Dakota,

removed the case to this court based on diversity jurisdiction, alleging that La Mirada, a
Texas citizen, had been improperly joined. On March 1, 2017 Cram filed a motion to dismiss
La Mirada from the case. The court granted the motion, dismissing Cram’s claims against
La Mirada without prejudice. On January 16, 2018 Cram filed, and the court granted, an
unopposed motion for leave to file an amended complaint. In her amended complaint, Cram
joins La Mirada and Flight 20101 as defendants, and alleges claims against Wells Fargo for
violations of RESPA and the Texas Debt Collection Act, Tex. Fin. Code Ann. § 392.001 et
seq. (West 2016); against Wells Fargo and La Mirada for breach of contract, breach of duty
of cooperation, negligent misrepresentation, promissory estoppel, and declaratory judgment;
and against Flight 2010 for quiet title and trespass to try title. Wells Fargo and La Mirada
move for summary judgment. Cram has not responded to the motions.
II
Defendants filed their motions for summary judgment on April 29, 2019. Cram’s
responses were due 21 days after defendants filed their motions. See N.D. Tex. Civ. R. 7.1(e)
(“A response and brief to an opposed motion must be filed within 21 days from the date the
motion is filed.”). Cram’s responses were due by May 20, 2019. She has not responded, and
the motions are ripe for decision.2

1

Flight 2010 has not answered or otherwise entered an appearance in this lawsuit, and
it appears that Flight 2010 may not have been properly served.
2

As noted infra at note 4, Cram has moved for a continuance of the trial date, but she
has not moved for a continuance of the deadline to respond to defendants’ summary
judgment motions.
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Cram’s failure to respond to the summary judgment motions filed by La Mirada and
Wells Fargo does not permit the court to enter “default” summary judgments, but the court
may accept as true all of defendants’ undisputed facts. See Tutton v. Garland Indep. Sch.
Dist., 733 F. Supp. 1113, 1117 (N.D. Tex. 1990) (Fitzwater, J.). Moreover, “[a] summary
judgment nonmovant who does not respond to the motion is relegated to her unsworn
pleadings, which do not constitute summary judgment evidence.” Bookman v. Shubzda, 945
F. Supp. 999, 1002 (N.D. Tex. 1996) (Fitzwater, J.) (citing Solo Serve Corp. v. Westowne
Assocs., 929 F.2d 160, 165 (5th Cir. 1991)). In addition,
[i]f a party fails . . . to properly address another party’s assertion
of fact as required by Rule 56(c), the court may . . . (2) consider
the fact undisputed for purposes of the motion [and] (3) grant
summary judgment if the motion and supporting
materials—including the facts considered undisputed—show
that the movant is entitled to it[.]
Fed. R. Civ. P. 56(e)(2)-(3).
Cram’s pro se status does not excuse her failure to respond to defendants’ motions.
As the court stated in Bookman:
There is a point at which even pro se litigants must become
responsible for the prosecution of their own cases if their claims
are to warrant the court’s attention. It is not unjustifiably
onerous to require pro se parties to respond to proper motions
for summary judgment. All summary judgment nonmovants
shoulder the same obligation. District courts can make
appropriate allowances for pro se responses that may be
somewhat less-artfully written than those of represented parties.
This can be accomplished, however, without excusing them
from the most basic requirement that they file a response.
Bookman, 945 F. Supp. at 1005.
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III
The court considers, first, whether Wells Fargo is entitled to summary judgment on
Cram’s RESPA claim, which is the only federal claim alleged in the amended complaint.
Wells Fargo moves for summary judgment on this claim, contending, inter alia, that
Cram has no evidence that she sustained actual damages as a result of not receiving a letter
denying her oral loan modification application, and that Cram cannot establish a violation
of 12 C.F.R. § 1024.41 because she has no evidence that she ever submitted a complete loss
mitigation application and she has no evidence that the oral loan modification application
was her first complete loss mitigation application.
Because Cram has failed to respond Wells Fargo’s motion, she has not carried her
burden as the nonmovant. When the summary judgment movant will not have the burden
at trial concerning a cause of action, it can meet its summary judgment obligation by pointing
the court to the absence of evidence to support plaintiff’s claims. See Celotex Corp. v.
Catrett, 477 U.S. 317, 325 (1986). Once it does so, the nonmovant must then go beyond her
pleadings and designate specific facts showing that there is a genuine issue for trial. See id.
at 324; Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (per curiam).
Moreover, the summary judgment nonmovant must produce evidence to establish the
existence of each element as to which she will bear the burden of proof. See Dunn v. State
Farm Fire & Cas. Co., 927 F.2d 869, 872 (5th Cir. 1991). Summary judgment is mandatory
where the nonmoving party fails to meet this burden. Little, 37 F.3d at 1076.
Accordingly, Wells Fargo’s motion for summary judgment is granted with respect to
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Cram’s federal RESPA claim, and this claim is dismissed with prejudice.
IV
Having concluded that Cram’s federal RESPA claim should be dismissed, the court
must now decide whether to exercise supplemental jurisdiction3 over Cram’s remaining
claims, all of which arise under state law.
Although this court can exercise supplemental jurisdiction over the state-law claims
under 28 U.S.C. § 1367(a), in this circuit “[t]he general rule is that a court should decline to
exercise jurisdiction over remaining state-law claims when all federal-law claims are
eliminated before trial.” Brookshire Bros. Holding, Inc. v. Dayco Prods., Inc., 554 F.3d 595,
602 (5th Cir. 2009). Having dismissed Cram’s sole federal-law claim against one of three
defendants, the court in its discretion declines to exercise supplemental jurisdiction over her
state-law claims.

Accordingly, the court dismisses Cram’s state-law claims without

prejudice.

3

Although the court had subject matter jurisdiction under 28 U.S.C. § 1332 at the time
this case was removed, the joinder of La Mirada as a defendant after it had been voluntarily
dismissed would have divested the court of jurisdiction and required remand under 28 U.S.C.
§ 1447(e) but for the presence of Cram’s federal RESPA claim against Wells Fargo. Because
Cram pleaded a federal claim in the amended complaint, there was no need for the court to
determine, under § 1447(e), whether to deny joinder of La Mirada or permit joinder and
remand the action to state court. The court had federal question jurisdiction over Cram’s
RESPA claim and could exercise supplemental jurisdiction under 28 U.S.C. § 1367(a) over
all other claims, “includ[ing] claims that involve the joinder or intervention of additional
parties,” so long as these claims were “so related to claims in the action within such original
jurisdiction that they form part of the same case or controversy.” And even if the court could
not exercise supplemental jurisdiction under 28 U.S.C. § 1367(a) over Cram’s state-law
claims against La Mirada and Flight 2010, the outcome in this case would be the same: the
state-law claims against La Mirada and Flight 2010 would be dismissed without prejudice.
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V
Accordingly, the court grants Wells Fargo’s motion for summary judgment on Cram’s
RESPA claim and dismisses this claim with prejudice. The court declines to exercise
supplemental jurisdiction over plaintiff’s state-law claims against Wells Fargo, La Mirada,
and Flight 2010, and it dismisses these claims without prejudice to their being reurged in
state court.4 The court declines to reach the merits of La Mirada’s motion for summary
judgment.
SO ORDERED.
June 11, 2019.

_________________________________
SIDNEY A. FITZWATER
SENIOR JUDGE

4

In view of this decision, plaintiff’s June 4, 2019 motion to extend the trial date is
denied without prejudice as moot.
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