Opinion
CIVIL ACTION NO. 04-0339
April 12, 2004
ORDER
Plaintiff has sued defendants CIT Group, Fairbanks Capital Corporation and U.S. Bank National Association alleging violation of the Truth in Lending Act, 15 U.S.C. § 1640(e) ("TILA"), and defendant Ed Rosen for violation of the Pennsylvania Unfair Trade Practices and Consumer Protection Law, 73 P.S. § 201-1 et. seq. There is no diversity of citizenship between plaintiff and Rosen.
Rosen has moved to dismiss on the ground that the claim against him is not so related to the claim against CIT, Fairbanks and U.S. Bank as to form part of the same case or controversy under Article III; thus, says Rosen, supplemental jurisdiction pursuant to 28 U.S.C. § 1367 of the claim against him is lacking.
Discussion of plaintiff's claims against Security Mortgage Brokers and Kevin J. Murphy is not required for disposition of this motion.
I may exercise supplemental jurisdiction over plaintiff's claim against Rosen only if that claim and plaintiff's federal claims "derive from a common nucleus of operative fact." United Mine Workers v. Gibbs, 383 U.S. 715, 725 (1966).
Although Gibbs was decided prior to the enactment of 28 U.S.C. § 1367, it controls the present inquiry. Salei v. Boardwalk Regency Corp., 913 F. Supp. 993, 998 (E.D. Mich. 1996).
Although the complaint is not sufficiently precise, plaintiff's federal claims (Count I) appear to assert that plaintiff was the recipient of a high rate residential mortgage loan from CIT, that the U.S. Bank and Fairbanks are the assignees of the mortgage and that defendants failed to deliver all material disclosures required by TILA including a failure to provide notice of a high interest loan; also that CIT issued a direct payment to a contractor (Rosen) in violation of TILA.
Plaintiff's claim against Rosen (Count IV) asserts: Rosen failed to invoice and itemize the labor and material costs for the work he performed and charged excessive amounts for the work; also he failed to perform the specified work in a competent and workmanlike manner and failed to respond to complaints about the quality of the work.
From a comparison of the allegations it is readily apparent that plaintiff's claim against Rosen could be resolved without any consideration whatever of a possible TILA violation by defendants on the federal claim. Accordingly I cannot conclude that the claim against Rosen and the federal claim derive from a common nucleus of operative fact.
AND NOW, this ___ day of April, 2004, Rosen's motion to dismiss is GRANTED and Count IV of the complaint is dismissed for lack of subject matter jurisdiction.