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Gilbert v. Hensel Phelps Construction Company

United States District Court, N.D. California
Sep 30, 2003
No C-00-3941-VRW (N.D. Cal. Sep. 30, 2003)

Opinion

No C-00-3941-VRW

September 30, 2003


ORDER


Before the court is plaintiff's motion to remand the case to state court. See Doc #75. Defendants oppose this motion. See Doc #81. For the reasons set forth below, the court GRANTS plaintiff's motion and REMANDS the case to San Francisco superior court.

I

The court's previous order granting in part and denying in part defendant's motion for summary judgment contains a detailed elaboration of the facts that will not be repeated here. See Doc #73. A quick summary will suffice for present purposes.

On August 4, 2000, plaintiff filed a complaint in San Francisco superior court alleging twelve state causes of action relating to allegations of racial discrimination, retaliation and harassment in the workplace. The case was removed to federal court on October 25, 2000. See Doc #1. Plaintiff filed a motion to remand (Doc #6), which the court denied/holding that plaintiff's fourth, fifth and eleventh causes of action (contract claims relating to a collective bargaining agreement, as well as a right to privacy claim) were completely preempted by federal law, specifically § 301 of the Labor Management Relations Act (LMRA), 29 U.S.C. § 185(a), making removal proper in this case under 28 U.S.C. § 1441. See Doc # 14. Plaintiff subsequently dismissed his fourth, fifth, and eleventh causes of action, see Doc # 18, and once again filed a motion to remand. See Doc #31. The court again denied plaintiff's motion to remand, holding that plaintiff's twelfth cause of action alleging intentional infliction of emotional distress was also completely preempted by § 301. See Doc # 41.

On October 5, 2001, defendants moved for summary judgment on all claims. See Doc # 44. The court granted summary judgment on plaintiff's twelfth cause of action, but refused to enter summary judgment on several other state causes of action. Thus, following defendants' motion for summary judgment, all grounds for the court's federal question jurisdiction have been adjudicated. On December 12, 2002, the plaintiff again filed a motion to remand.

II

At the outset, the court notes that it is in receipt of several letters from the parties regarding defendants' failure to serve and file their opposition to the present motion on or before the deadline set forth by the case management schedule, as amended on November 6, 2002. See Doc # 79; see also November 20, 2002 Order to Show Cause (Doc # 85) (ordering defendants to show cause why plaintiff's motion should not be considered unopposed for failure to comply with briefing schedule).

While not directly responding to the court's order to show cause, defendants moved to alter retroactively their deadline to file an opposition. See Doc # 86. Defendants asserted that their neglect in timely filing their opposition was excusable because they were not served with the court's order modifying the due dates for opposition and reply papers until after their opposition was due.

The court is not convinced by defendants' explanation, but nevertheless finds that it would serve no useful purpose to disregard defendants' opposition or otherwise sanction them for their error. Defendants did file an opposition, albeit one week past the deadline. See Doc #81. In addition, plaintiff has sent a letter asking that his motion be decided on the papers submitted. See Doc #87. Hence, plaintiff does not appear to have suffered any prejudice by defendants' late filing.

III

As a preliminary matter, the court notes that in his notice of motion and motion to remand, plaintiff asserts that his motion is "made pursuant to 28 U.S.C. § 1447 (c) on the ground that this [c]ourt does not have subject matter jurisdiction * * *." See PI Notice of Motion (Doc #75), at 1.

Section 1447(c), however, provides for remand only if removal of the action was "improvident and without jurisdiction." Sever v Alaska Pulp Corp., 978 F.2d 1529, 1539 (9th Cir 1992). It does not provide a basis for remand of remaining supplemental state law claims on discretionary grounds. See Executive Software North America. Inc v United States Dist Ct, 24 F.3d 1545, 1549 (9th Cir 1994) (citingLee v City of Beaumont, 12 F.3d 933, 935 (9th Cir 1993)). Removal jurisdiction is determined at the time of removal and is not subject to post — removal actions by a plaintiff seeking to return the action to state court. Libhart v Santa Monica Dairy Co., 592 F.2d 1062, 1065 (9th Cir 1979).

Nevertheless, plaintiff's aim is clear: he wishes to litigate the remainder of his case in state court and asks the court to decline supplemental jurisdiction so that he may do so. While plaintiff's notice of the present motion mentions only 28 U.S.C. § 1447 (c) as its basis, plaintiff's memorandum is replete with authorities discussing the district court's discretion in declining supplemental jurisdiction once non — diverse parties' federal law claims have been dismissed. See Pl Mem (Doc #78), at 6-8 (citing numerous cases discussing supplemental jurisdiction and discussing whether the court should retain supplemental jurisdiction). Hence, the court finds it appropriate to deem plaintiff's motion to remand as one made under 28 U.S.C. § 1367(c) in light of the substance of plaintiff's arguments in his memorandum, and to clarify the grounds on which the court proceeds.

IV

As an additional preliminary matter, the court notes that plaintiff has requested judicial notice of a decision by Judge Ware in Morton v Santa Cruz Operation, 1993 US Dist LEXIS 17709. See Doc #77. As the court need not take judicial notice of court decisions in support of legal arguments, the court denies plaintiff s request.

V

Turning to the merits of plaintiff's motion, the statute governing supplemental jurisdiction provides in pertinent part:

The district court may decline to exercise supplemental jurisdiction over a claim * * * if —

* * *

(3) the district court has dismissed all claims over which it has original jurisdiction * * *.
28 U.S.C. § 1367 (c).

It is well — settled that "in the usual case in which all federal — law claims are eliminated before trial, the balance of factors * * * will point toward declining to exercise jurisdiction over the remaining state — law claims." Carneqie — Mellon Univ v Cohill, 484 U.S. 343, 350 n7 (1988); Acri v Varian Assocs, Inc., 114 F.3d 999, 1001 (9th Cir 1997). But the decision to remand is discretionary and the court must be guided by values of "economy, convenience, fairness, and comity" in its decision. Carnegie — Mellon Univ v Cohill, 484 U.S. 343, 351 (1988); Executive Software N Am v United States Dist Court, 24 F.3d 1545, 1557 (9th Cir 1994).

Defendants rely on Bale v General Telephone Co of Calif, 795 F.2d 775 (9th Cir 1986), to argue that remand is unwarranted. In that case, however, the court found that the plaintiff's remaining state law claims were preempted by section 301 of the Labor Management Relations Act, thereby creating "a particularly strong factor in favor of the exercise of pendent jurisdiction." Id. at 778. Ultimately, the Ninth Circuit found merely that the district court did not abuse its discretion by exercising pendent jurisdiction; it made no determination whether the district court would have abused its discretion by declining to exercise pendent jurisdiction. See id.

Similarly, in Harrell v 20th Century Ins Co., 934 F.2d 203 (9th Cir 1991), another case relied upon by defendants, the Ninth Circuit found that it was not abuse of the district court's discretion to retain jurisdiction over pendent state law claims and rule on a statute of limitations issue that had already been fully briefed by the parties. See 934 F.2d at 205-06. The court of appeals made no determination whether it would have been reversible error for the district court to have remanded the state — law claims to state court. See id.

By contrast, in the case at bar, defendants do not argue, and the court is unaware of, any federal issues pertinent to plaintiff's remaining state law claims. Nor are there any fully briefed pending motions other than the instant motion. While the court has ruled on two motions to remand and one for summary judgment, these rulings alone do not necessitate retention of the remaining claims. See, e g, Carnegie Mellon, 484 US at 350 n7 (if federal — law claims dismissed any time before trial, factors will usually point toward remand) (emphasis added). In Brown v Lucky Stores, 246 F.3d 1182, 1189 (9th Cir 2001), the Ninth Circuit affirmed the district court's decision to decline to exercise its supplemental jurisdiction over remaining state law claims after granting summary judgment on the plaintiff's federal law claims.

Defendants assert that there are "overwhelming factors" Def Opp Mem (Doc #81), at 2, in favor of retaining jurisdiction in order to serve the interests of the judicial economy, convenience and fairness. But defendants fail to identify any factors beyond the mere fact that the court has previously addressed two motions to remand and a motion for summary judgment.

For example, defendants assert that "[t]he state and federal claims arise from the same nucleus of facts." See Def Opp Mem (Doc #81), at 2. But that is true of all supplemental claims. See 28 U.S.C. § 1367(a). Defendants also assert that "this case has been pending before this Court for over two years," Def Opp Mem (Doc #81), at 2, but they do not elaborate how the passage of time since removal, by itself, supports exercise of supplemental jurisdiction. Defendants also state that "discovery has been conducted and completed," but defendants fail to cite, and the court is unaware of, any authority holding that the completion of discovery, without more, weighs in favor of retaining state law claims. Id. Finally, defendants assert conclusively that "considerable time and resources have been expended to adjudicate this matter." Id. All of these facts are true, but they do not provide a compelling reason to depart from the usual course of remanding unadjudicated state claims after federal claims have been resolved. There is nothing to suggest that the state court cannot resolve these remaining claims at least as economically and expeditiously as this court.

While the court has unquestionably become familiar with certain facts in this case, the court nonetheless does not find that, in weighing the interests of economy, convenience, fairness and comity, it should retain supplemental jurisdiction. Accordingly, the court DECLINES to exercise supplemental jurisdiction over plaintiff's remaining state law claims and REMANDS the case to San Francisco superior court.

IT IS SO ORDERED.


Summaries of

Gilbert v. Hensel Phelps Construction Company

United States District Court, N.D. California
Sep 30, 2003
No C-00-3941-VRW (N.D. Cal. Sep. 30, 2003)
Case details for

Gilbert v. Hensel Phelps Construction Company

Case Details

Full title:RONALD GILBERT, SR, Plaintiff, v. HENSEL PHELPS CONSTRUCTION COMPANY, et…

Court:United States District Court, N.D. California

Date published: Sep 30, 2003

Citations

No C-00-3941-VRW (N.D. Cal. Sep. 30, 2003)