Filed: Aug. 07, 2018
Latest Update: Aug. 07, 2018
Summary: ORDER GRANTING RENOVATE AMERICA'S MOTION TO DISMISS (Doc. No. 40), and DENYING AS MOOT REVERSE MORTGAGE'S MOTION TO DISMISS (Doc. No. 25) ANTHONY J. BATTAGLIA , District Judge . Before the Court is Defendant Renovate America, Inc.'s dismissal motion based on lack of subject-matter jurisdiction. (Doc. No. 40-1 at 5.) Unser's sole federal claim rests on 16 C.F.R. 429.1, which deems a door-to-door sale unfair or deceptive if the seller does not comply with enumerated requirements. However,
Summary: ORDER GRANTING RENOVATE AMERICA'S MOTION TO DISMISS (Doc. No. 40), and DENYING AS MOOT REVERSE MORTGAGE'S MOTION TO DISMISS (Doc. No. 25) ANTHONY J. BATTAGLIA , District Judge . Before the Court is Defendant Renovate America, Inc.'s dismissal motion based on lack of subject-matter jurisdiction. (Doc. No. 40-1 at 5.) Unser's sole federal claim rests on 16 C.F.R. 429.1, which deems a door-to-door sale unfair or deceptive if the seller does not comply with enumerated requirements. However, R..
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ORDER GRANTING RENOVATE AMERICA'S MOTION TO DISMISS (Doc. No. 40), and
DENYING AS MOOT REVERSE MORTGAGE'S MOTION TO DISMISS (Doc. No. 25)
ANTHONY J. BATTAGLIA, District Judge.
Before the Court is Defendant Renovate America, Inc.'s dismissal motion based on lack of subject-matter jurisdiction. (Doc. No. 40-1 at 5.) Unser's sole federal claim rests on 16 C.F.R. § 429.1, which deems a door-to-door sale unfair or deceptive if the seller does not comply with enumerated requirements. However, Renovate asserts "[t]here is no colorable right to a remedy under 16 C.F.R. § 429.1. . . ." (Id. at 6.) While the Ninth Circuit has not yet addressed this claim, Renovate bases its argument on several district court holdings, as well as a recently-decided decision on this very issue brought by plaintiff's counsel in this district. (Doc. No. 40-3, Rojas v. Ygrene Energy Fund, Inc., 18-cv-579-CAB-KSC.) In that case, Judge Bencivengo held "there is no private right of action to sue for violation of the FTC Act. . . . Plaintiffs first claim for violation for 16 C.F.R. § 429.1, therefore, does not assert a colorable right to a remedy obtainable by Plaintiffs via this lawsuit and cannot serve as a basis for federal question subject matter jurisdiction." (Id. at 2.) In response, Unser filed a notice of non-opposition agreeing he could not bring a claim under 16 C.F.R. § 429.1 and requesting the Court dismiss the action for lack of subject-matter jurisdiction so he can file his claims in state court. (Doc. No. 44 at 2.) Following Unser's non-opposition, co-defendant Reverse Mortgage Solutions, Inc. ("RMS") filed a response requesting the Court dismiss the co-defendants1 and retain diversity jurisdiction over Unser's state law claims. (Doc. No. 46 at 3.) However, Unser's complaint fails to allege diversity jurisdiction, and even if it existed, the Court declines to reshape Unser's complaint and ignore his non-opposition in dismissing his case.
Based on Unser's non-opposition and Judge Bencivengo's reasoned holding in Rojas, the Court GRANTS Renovate's motion to dismiss for lack of subject-matter jurisdiction, (Doc. No. 40), VACATES the August 9, 2018 motion hearing, and DISMISSES Unser's complaint without prejudice. Accordingly, RMS' dismissal motion is DENIED AS MOOT. (Doc. No. 25.) The Court DIRECTS the Court Clerk to close the case.
IT IS SO ORDERED.
