United States District Court, E.D. Pennsylvania
April 12, 2004.
CIT GROUP/CONSUMER FINANCE, INC., et al
The opinion of the court was delivered by: THOMAS O'NEILL, Senior District Judge
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.*fn1
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).*fn2 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