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Delmonte v. Citibank

March 10, 2006


The opinion of the court was delivered by: Siragusa, J.


Plaintiff's state court complaint, alleging various causes of action arising from a mortgage, was removed by defendant Experian Information Solutions, Inc., and is now*fn1 before the Court on plaintiff's application for "an order dropping certain defendants from the action and dismissing certain claims against the dropped defendants with prejudice, with each party to bear its own costs and attorneys' fees; amending the caption; remanding the case to state court pursuant to 28 U.S.C. § 1441(c) and 28 U.S.C. § 1447(c) on the grounds that the Court lacks subject matter jurisdiction.." (Pl.'s Notice of Motion (#54), at 1.)

Plaintiff filed a supporting declaration with his motion in which he contends that,

[t]he parties have agreed to a dismissal of the CRA*fn2 defendants upon the following terms:

The action shall be dismissed with prejudice as against Defendants Esquifax, Inc.; Experian; Experian Information Solutions, Inc.; and Trans Union, LLC pursuant to Fed. R. Civ. P. 41(a)(1)(i); and the caption shall be so amended. Each party shall bear its own costs and attorneys' fees. (Maines Decl. (# 54) ¶ 3.)

Federal Rule of Civil Procedure 41(a)(1)(i) states in pertinent part:

(a) Voluntary Dismissal: Effect Thereof.

(1) By Plaintiff; By Stipulation. Subject to the provisions of Rule 23(e), of Rule 66, and of any statute of the United States, an action may be dismissed by the plaintiff without order of court (i) by filing a notice of dismissal at any time before service by the adverse party of an answer or of a motion for summary judgment, whichever first occurs.. Unless otherwise stated in the notice of dismissal or stipulation, the dismissal is without prejudice, except that a notice of dismissal operates as an adjudication upon the merits when filed by a plaintiff who has once dismissed in any court of the United States or of any state an action based on or including the same claim.

Fed. R. Civ. P. 41(a)(1)(i). Subsequently, the parties submitted a stipulation of dismissal with respect to the CRA defendants, and that stipulation was "so ordered" by the Court on March 1, 2006, and docketed the next day. Thus, the portion of plaintiff's motion seeking dismissal of the CRA defendants is moot.

With regard to plaintiff's motion to remand, the remaining defendants, Citibank, N.A. and Citimortgage, Inc., filed a memorandum in opposition. (Defs.' Mem. of Law (# 59).) The removal statute provides, in pertinent part, "[i]f at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded" 28 U.S.C. § 1447 (1996). The case was removed from State court by former defendant Experian, who alleged federal question jurisdiction in the Notice of Removal. Thus, the Court originally had supplemental jurisdiction, also referred to as pendent jurisdiction, over the State causes of action in the complaint.

In their memorandum of law opposing remand, defendants argue that plaintiff has waived his right to seek remand:

Individually and collectively, all this conduct by Plaintiff in this Court over an 18 month period constitute a clear waiver of his right now to seek remand. Plaintiffs motion practice and other conduct in this Court clearly amounted to a knowing, voluntary embrace of this Court's jurisdiction over the claims he is pursuing against Defendants. (Defs.' Mem. of Law at 10 (citations omitted).) In the alternative, defendants argue that,

In addition, even assuming, arguendo, that Plaintiff has not waived his right to seek remand, his motion should still be denied. This Court clearly has discretion whether to retain or remand state claims where the federal claims are dismissed long after removal.. In Parker [PPA v. DellaRocco, 252 F.3d 663, 666 (2d Cir. 2001)], the Second Circuit determined that "'the district court may, at its discretion, exercise supplemental jurisdiction over state law claims even where it has dismissed all claims over which it had original jurisdiction, [although] it cannot exercise supplemental jurisdiction unless there is first a proper basis for original federal jurisdiction.'" Parker, 252 F.3d at 666, quoting Nowak v. Ironworkers Local 6 Pension Fund, 81 F.3d 11 82, 1187 (2d Cir. 1996). (Id.)

In Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 348-350 (1988), the Supreme Court discussed ...

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