City of Mobile, In Re: ( 1996 )

United States Court of Appeals,
Eleventh Circuit.
No. 95-6878.
In re CITY OF MOBILE, Petitioner.
Jan. 31, 1996.
On Petition for Writ of Mandamus to the United States District
Court for the Southern District of Alabama. (No. CV 95-0509-CB-C),
Charles R. Butler, Jr., Chief Judge.
Before HATCHETT, COX and BIRCH, Circuit Judges.
HATCHETT, Circuit Judge:
This case is before the panel on a petition for writ of
mandamus. We direct the district court to reconsider its decision.
BACKGROUND
On June 29, 1993, Melvin Thornton, Sr. sustained serious
injuries when a vehicle driven by Michael Kahalley struck his car.
At the time of the collision, officers of the Mobile, Alabama
Police Department were engaged in a high-speed chase of Kahalley.
On September 20, 1993, Thornton and family members (respondents)
filed suit in Alabama state court against Kahalley, the City of
Mobile, Police Officer David Preston and various fictitious
parties. The suit alleged negligence, wantonness, and dram shop
liability causes of actions under Alabama state law. On June 14,
1995, respondents filed a fourth amended complaint adding a cause
of action under 42 U.S.C. § 1983 for violation of rights under the
Fourth, Eighth, and Fourteenth Amendments to the United States
Constitution. Originally, the case was set for trial in state
court on June 26, 1995; it was continued, however, until November
5, 1995. On June 27, 1995, petitioners, with the exception of
Kahalley, removed the case to federal court pursuant to 28 U.S.C.
§ 1441(b) and (c).
Respondents moved to remand the entire case to state court.
The district court in the Southern District of Alabama granted the
motion remanding the entire case, including the section 1983 claim,
to state court. In support of its order, the district court relied
on 28 U.S.C. § 1367(c)(2) and (c)(4). Petitioners request that
this court issue a writ of mandamus ordering the district court to
retain and hear the entire case.
CONTENTIONS
Petitioners contend that the district court erred in remanding
the entire case to state court and assert that the district court
should have retained all of the claims. Petitioners contend that
the language of 28 U.S.C. § 1367(c) is clear and unequivocal and
only empowers a district court to decline supplemental
jurisdiction. Petitioners argue that this court should adopt the
reasoning of Borough of West Mifflin v. Lancaster, 45 F.3d 780 (3d
Cir.1995), which prohibited a district court from remanding a
properly removed federal claim to state court.
Respondents contend that remanding an entire case, including
a properly removed federal claim, is appropriate under section
1367(c)(2) where the state claims substantially predominate over
federal claims. Respondents argue that the district court
correctly found that the state law issues substantially
predominated over the federal issues. Respondents also contend
that under section 1367(c)(4), the district court properly remanded
the entire case to state court because other compelling reasons
exist to remand. Alternatively, respondents contend that the
district court could have remanded the entire case under section
1441(c).
ISSUE
The sole issue we address is whether, under 28 U.S.C. §
1367(c), a district court has discretion to remand to state court
a case that includes a properly removed federal claim.
DISCUSSION
Initially we note that when a district court remands a case
based on reasons not authorized in 28 U.S.C. § 1447(c), we have
jurisdiction to review such an order on a petition for writ of
mandamus. In re Surinam Airways Holding Co., 974 F.2d 1255, 1257
(11th Cir.1992).
Section 1367(c) cannot be fairly read as bestowing on
district courts the discretion to remand to a state court a case
that includes a properly removed federal claim. Borough of West
Mifflin v. Lancaster, 45 F.3d 780, 787 (3d Cir.1995). According to
section 1367(a), "in any civil action of which the district courts
have original jurisdiction, the district courts shall have
supplemental jurisdiction over all other claims that are so related
to the claims in the action within such original jurisdiction that
they form part of the same case or controversy." 28 U.S.C.A. §
1367(a) (West 1993). Under section 1367(c), district courts have
the discretion to refuse to exercise supplemental jurisdiction.
The section provides that
district courts may decline to exercise supplemental
jurisdiction over a claim under subsection (a) if—
(1) the claim raises a novel or complex issue of state law;
(2) the claim substantially predominates over the claim or
claims over which the district court has original
jurisdiction;
(3) the district court has dismissed all claims over which it
has original jurisdiction; or
(4) in exceptional circumstances, there are other compelling
reasons for declining jurisdiction.
28 U.S.C.A. § 1367(c) (West 1993) (emphasis added).
In this case, the district court acknowledged that the terms
of section 1367(c) do not expressly authorize it to remand a
federal claim to state court, but the court found support for doing
so in the doctrine of pendent jurisdiction as construed in Carnegie
Melon Univ. v. Cohill, 484 U.S. 343, 108 S.Ct. 614, 98 L.Ed.2d 720(1988). While we accept the district court's conclusion that
section 1367 is rooted in the doctrine of pendent jurisdiction, we
reject its interpretation of Carnegie Melon as allowing federal
courts to remand properly removed federal claims to state courts.
In Carnegie Melon, the Court addressed the issue of "whether a
federal district court has discretion under the doctrine of pendent
jurisdiction to remand a properly removed case to state court when
all federal-law claims in the action have been eliminated and only
pendent state-law claims remain." Carnegie Mellon, 484 U.S. at
345, 108 S.Ct. at 616. The Court concluded that a district court
has discretion to remand pendent claims to state court when doing
so furthers the principles of judicial economy, convenience,
fairness, and comity. Carnegie Mellon, 484 U.S. at 357, 108 S.Ct.
at 622-23. The district court in this case relied upon sections
1367(c)(2) and (c)(4) in concluding that it could remand the entire
case including the federal claim to state court.
The district court exceeded its discretionary authority in
remanding the entire case pursuant to section 1367(c)(2) and (c)(4)
because it remanded the case on grounds not provided for in the
controlling statute. See Thermtron Products v. Hermansdorfer, 423
U.S. 336, 351, 96 S.Ct. 584, 593, 46 L.Ed.2d 542 (1976) (finding
that a district court exceeded its authority in remanding a case
for reasons not provided for in 28 U.S.C. § 1447(c)). While the
district court in this case outlined ostensibly compelling reasons
for remanding the entire case, we find no support for the district
court's decision in section 1367(c), its legislative history, or
relevant case law.1 As the Supreme Court stated in Thermtron
Products, "we are not convinced that Congress ever intended to
extend carte blanche authority to district courts to revise the
federal statutes governing removal by remanding cases on grounds
that seem justifiable to them but which are not recognized by the
controlling statute." Thermtron Products, 423 U.S. at 351, 96
S.Ct. at 593. Accordingly, we hold that the district court must
retain jurisdiction over the properly removed federal claim.
Respondents urge this court to find, as an alternative to
section 1367(c), that the district court had authority under 28
U.S.C.A. § 1441(c) to remand the entire action. We need not
consider this suggestion because we agree with the district court's
conclusion that no separate and independent cause of action exists
under these facts. Under section 1441(c),
1
For example, in deciding to remand the entire case, the
district court placed great emphasis on the state court's
expenditure of its judicial resources during a two-year period in
pre-trial matters in preparation for the case.
[w]henever a separate and independent claim or cause of action
within the jurisdiction conferred by section 1331 of this
title is joined with one or more otherwise non-removable
claims or causes of action, the entire case may be removed and
the district court may determine all issues therein, or in its
discretion, may remand all matters in which State law
predominates.
28 U.S.C.A. § 1441(c) (West 1994). The district court correctly
found that the claims here were not separate and independent.
Where both federal and state causes of actions are asserted as a
result of a single wrong based on a common event or transaction, no
separate and independent federal claim exists under section
1441(c). American Fire & Casualty Co. v. Finn, 341 U.S. 6, 14, 71
S.Ct. 534, 540, 95 L.Ed. 102 (1951). In this case, a single
accident occurred, and state and federal claims were filed based on
that accident. Therefore, section 1441(c) is not applicable
because no separate and independent claim exists.
CONCLUSION
Because the district court exceeded its authority in remanding
the properly removed federal claim, we direct the district court to
reconsider its decision to remand the entire case to the state
court.
REMANDED.
BIRCH, Circuit Judge, dissenting:
Because I believe that the district court correctly remanded
the entire underlying case to state court, albeit under the wrong
reasoning and statutory authority, I dissent. I agree with the
majority that 28 U.S.C. § 1367(c) was the improper basis to support
remand of the entire underlying case, which includes a 42 U.S.C. §
1983 claim, because section 1367(c) accords a district court
discretion to decline supplemental jurisdiction over state law
claims in definitive situations. 1 I disagree, however, with the
majority and the district court's dismissal of 28 U.S.C. § 1441(c)
as the basis for remanding the entire underlying case because the
federal claim was not separate and independent from the state law
claims. My review of the legislative history for the applicable
1990 amendment to section 1441(c) convinces me that the district
court was authorized under this statute to remand the entire
underlying case to state court.
I. THE "SEPARATE AND INDEPENDENT CLAIM" LANGUAGE OF SECTION
1441(c)
The amendment of 28 U.S.C. § 1441(c) in 1990 resulted from the
recommendation of the Federal Courts Study Committee ("Committee"),
which was created by the Judicial Improvements and Access to
Justice Act of 1988 to study and report to Congress on certain
issues relating to the federal courts. The Committee's
recommendations are contained in the Report of the Federal Courts
Study Committee ("Report"), dated April 2, 1990. The Committee
recommended repeal of section 1441(c), "concerning removal of
separate and independent claims," because of the problems
encountered in the interpretation of "separate and independent"
claims in administering this statute by the federal courts. Report
at 94, 95.
1
28 U.S.C. § 1367(c); see Palmer v. Hospital Auth., 22 F.3d
1559, 1563 (11th Cir.1994) ("Section 1367 codifies the concepts
previously known as pendent and ancillary jurisdiction," and it
retains the dichotomy formerly derived from United Mine Workers
of America v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218(1966), for accepting or declining supplemental jurisdiction).
The Committee recognized that the "separate and independent
claim or cause of action" language of former section 1441(c)
related to diversity cases "when the separate claim is against
another, non-diverse party." Id. The former doctrine of ancillary
jurisdiction, now subsumed by supplemental jurisdiction, codified
in 28 U.S.C. § 1367, allowed unrelated claims to be joined in a
single lawsuit and occurred in diversity, not federal question,
cases. Clearly, diversity jurisdiction was where "most of the
difficulties with § 1441(c)" arose as courts and parties attempted
to decipher the separateness or relatedness of claims. Id. at 95.
Congress, however, did not repeal section 1441(c), but
"modified" the statute "so as to eliminate most of the problems
that have been encountered in attempting to administer the
"separate and independent claim or cause of action' test" as
described by the Report. H.R.Rep. No. 101-734, 101st Cong., 2d
Sess., at 22-23 (1990) (Federal Courts Study Committee
Implementation Act of 1990). In a manifest attempt to restrict the
application of section 1441(c) to federal question jurisdiction, as
opposed to diversity jurisdiction, and to clarify the remand
discretion given to district courts, Congress amended the statute
in 1990 to provide:
Whenever a separate and independent claim or cause of action
within the jurisdiction conferred by section 1331 of this
title is joined with one or more otherwise non-removable
claims or causes of action, the entire case may be removed and
the district court may determine all issues therein, or, in
its discretion, may remand all matters in which State law
predominates.
28 U.S.C. § 1441(c) (emphasis added). Thus, Congress recognized
that the "separate and independent claim" problem arose in
diversity cases, where the "plaintiff could easily bring a single
action on a federal claim and a completely unrelated state claim."
H.R.Rep. No. 101-734, at 23 (emphasis added). In contrast,
Congress acknowledged that federal question jurisdiction,
associated with the former doctrine of pendent jurisdiction,
involves related claims. This relatedness of state and federal
causes of action is so implicit that Congress determined that the
amendment of section 1441(c) "would avoid the need to decide
whether there is pend[e]nt jurisdiction" in removal and remand.
Id.Since amended section 1441(c) concerns only federal question
jurisdiction and deletes diversity jurisdiction, now covered by
section 1441(b), Congress undertook to relieve federal judges from
determining whether the state and federal causes of action are
related or unrelated. In federal question cases, these causes of
action are related. "The further amendment to Sec. 1441(c) that
would permit remand of all matters in which state law predominates
also should simplify administration of the separate and independent
claim removal." Id. (emphasis added). Indeed, the congressionally
edited version of section 1441(c), showing the deleted and added
wording makes plain that a deliberate choice has been made from
allowing a district court to remand "all matters not otherwise
within its original jurisdiction" to " may remand all matters in
which State law predominates." Id. at 50. Whereas the district
court formerly had no choice in retaining a federal claim, it now
may remand an entire case, including the federal question claim, if
state law predominates. See Maine v. Thiboutot, 448 U.S. 1, 3 n.
1, 100 S.Ct. 2502, 2503 n. 1, 65 L.Ed.2d 555 (1980) (recognizing
that federal courts do not have exclusive jurisdiction to
adjudicate section 1983 claims, since state courts have concurrent
jurisdiction (citing Martinez v. California, 444 U.S. 277, 283-84
n. 7, 100 S.Ct. 558, 558 n. 7, 62 L.Ed.2d 481 (1980))); see also
13B Charles A. Wright, Arthur R. Miller & Edward H. Cooper, Federal
Practice and Procedure § 3573, at p. 196 (1984) (acknowledging that
"it is now settled" that federal and state courts have concurrent
jurisdiction in section 1983 cases). Accordingly, "separate and
independent claim or cause of action" in section 1441(c) means a
legitimate basis of federal jurisdiction apart from jurisdiction
under state law claims.
In view of this legislative history, the majority's use of
American Fire & Casualty Co. v. Finn, 341 U.S. 6, 71 S.Ct. 534, 95
L.Ed. 702 (1951), for the proposition that no separate and
independent cause of action can exist under section 1441(c) where
federal and state causes arise from a common event is unpersuasive
in the context of a federal question case. Finn is a diversity
case, and it was remanded to state court because of the lack of
complete diversity, the basis of federal jurisdiction.2 Indeed,
the Court defined a controversy between citizens of different
states as " "separable.' " Id. at 10, 71 S.Ct. at 538. That is,
2
In reversing the Fifth Circuit and remanding the case with
instructions that it be remanded to state court, the Supreme
Court concluded: "In this case, however, the District Court
would not have had original jurisdiction of the suit, as first
stated in the complaint, because of the presence on each side of
a citizen of Texas." Finn, 341 U.S. at 17, 71 S.Ct. at 541-42
(citing 28 U.S.C. § 1332).
the "single wrong" that is the basis of the diversity case is
separate and independent from an unrelated or ancillary claim that
destroys complete diversity. Id. at 14, 71 S.Ct. at 540. Noting
the difficulty in interpreting the meaning of " "separate and
independent claim or cause of action,' " the Court found that an
"important purpose" in the then-operative revision of § 1441(c) was
"to limit removal from state courts." Id. at 9-10, 71 S.Ct. at
538. Thus, Finn addresses diversity jurisdiction and not federal
question jurisdiction, where the claims are intertwined.
In Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 108 S.Ct.
614, 98 L.Ed.2d 720 (1988), decided on principles of pendent
jurisdiction because the federal claims had been eliminated and
only state law claims remained,3 the Court explained that
"[s]ections 1441(c) and 1447(c) ... do not apply to cases over
which a federal court has pendent jurisdiction. Thus, the remand
authority conferred by the removal statute and the remand authority
conferred by the doctrine of pendent jurisdiction overlap not at
all." Id. at 355 n. 11, 108 S.Ct. at 621 n. 11. The presently
3
In Carnegie-Mellon, the "single federal-law claim in the
action was eliminated at an early stage of the litigation" giving
the district court "a powerful reason to choose not to continue
to exercise jurisdiction." 484 U.S. at 351, 108 S.Ct. at 619.
In contrast, the underlying case in this petition had been
pending for two years in state court, discovery was completed,
and the case was set for trial before removal to federal court.
The pivotal issue in Carnegie-Mellon was whether the district
court should relinquish jurisdiction by dismissing the case,
consisting of the pendent state law claims, without prejudice or
by remanding it to the state court. Id. In confirming the
judicial economy and comity principles of Gibbs, the Court
concluded that remand was preferable to dismissal, which might
preclude a plaintiff from litigating claims because of the
expiration of a state statute of limitations. Id. at 351-53, 108
S.Ct. at 619-20.
applicable 1990 amendment to section 1441(c), which followed the
Carnegie-Mellon decision, gives district courts the ability to
remand "all matters," or the entire case, to state court if state
law predominates.
II. STATUTORY INTERPRETATION AND APPLICATION
A. Principles of Statutory Construction
We review a district court's interpretation and application of
a statute de novo. International Union v. Jim Walter Resources,
Inc., 6 F.3d 722, 724 (11th Cir.1993). When statutory language is
clear and unambiguous, the language controls "absent a legislative
intent to the contrary." United States v. Chandler, 996 F.2d 1073,
1084 (11th Cir.1993) (citing United States v. Turkette, 452 U.S.
576, 580, 101 S.Ct. 2524, 2527, 69 L.Ed.2d 246 (1981)) (emphasis
added), cert. denied, --- U.S. ----, 114 S.Ct. 2724, 129 L.Ed.2d
848 (1994). Only when the statutory language is unclear do we
resort to legislative history. United States v. Rojas-Contreras,
474 U.S. 231, 235, 106 S.Ct. 555, 557, 88 L.Ed.2d 537 (1985); see
United States v. Castro, 829 F.2d 1038, 1049 (11th Cir.1987) ("Our
objective when interpreting a statute is to determine the drafters'
intent."), modified on other grounds, 837 F.2d 441 (11th Cir.1988).
"In determining the meaning of the statute we look not only to the
particular statutory language, but to the design of the statute as
a whole and to its object and policy." Crandon v. United States,
494 U.S. 152, 153, 110 S.Ct. 997, 1001, 108 L.Ed.2d 132 (1990)
(emphasis added); accord McCarthy v. Bronson, 500 U.S. 136, 139,
111 S.Ct. 1737, 1740, 114 L.Ed.2d 194 (1991); Chandler, 996 F.2d
at 1084. Thus, statutory language must be interpreted in context,
and not in isolation, to effectuate the statutory purpose.
Department of Revenue v. ACF Indus., Inc., --- U.S. ----, ----, 114
S.Ct. 843, 848, 127 L.Ed.2d 165 (1994); see City of Jamestown v.
James Cable Partners, L.P. (In re James Cable Partners, L.P.), 27
F.3d 534, 537 (11th Cir.1994) (per curiam) (holding that statutory
language should not be construed separately or in a vacuum, but
within the meaning of the whole statute).
Accordingly, courts cannot pronounce a statutory
interpretation that would thwart the legislative purpose of a
particular statute. In re Trans Alaska Pipeline Rate Cases, 436
U.S. 631, 643, 98 S.Ct. 2053, 2061, 56 L.Ed.2d 591 (1978). "A
change of [statutory] language is some evidence of a change of
purpose...." Johnson v. United States, 225 U.S. 405, 415, 32 S.Ct.
748, 751, 56 L.Ed. 1142 (1912); accord McElroy v. United States,
455 U.S. 642, 650-52 n. 14, 102 S.Ct. 1332, 1337 n. 14, 71 L.Ed.2d
522 (1982). An interpretation of statutory language that causes
other language within the statute to be meaningless contravenes the
" "elementary canon of construction that a statute should be
interpreted so as not to render one part inoperative.' " Mountain
States Tel. & Tel. Co. v. Pueblo of Santa Ana, 472 U.S. 237, 249,
105 S.Ct. 2587, 2594, 86 L.Ed.2d 168 (1985) (quoting Colautti v.
Franklin, 439 U.S. 379, 392, 99 S.Ct. 675, 684, 58 L.Ed.2d 596(1979)).
B. Judicial Interpretation
The congressional amendment of section 1441(c) in 1990
resulted from problematic judicial interpretations of "separate and
independent claim" in the former version of the statute.4
Therefore, the legislative history addressed in the previous
section is crucial to our understanding of the meaning of "separate
and independent claim" within the context of section 1441(c) as
amended. Because present section 1441(c) is limited to federal
question jurisdiction, state law claims will be related to the
federal claim(s). Thus, "separate and independent claim" cannot
mean that the federal claim is unrelated to the state claims.
Furthermore, amended section 1441(c) now authorizes the district
court to remand all matters in which state law predominates; it no
longer is required to retain the federal claim as it was in the
previous version of the statute.5 See Johnson, 225 U.S. at 415, 32
S.Ct. at 751 (determining that a legislative change in statutory
language constitutes evidence of a change in the statutory
purpose).
To focus on the "separate and independent claim" language of
4
Despite congressional efforts at clarifying § 1441(c), it
is manifest that reasonable jurists continue to differ concerning
the interpretation of this statute evidenced by the district
court in the underlying case and the majority's view versus mine.
See Burnett v. Birmingham Bd. of Educ., 861 F.Supp. 1036, 1038-39
(N.D.Ala.1994) (listing district courts that have followed the
interpretation of § 1441(c) by the district courts in our circuit
permitting remand of a case containing a federal cause of action
where state law claims predominate, which is my interpretation,
and district courts that would agree with the district court in
the underlying case and the majority's interpretation).
5
"Prior to its amendment, section 1441(c) permitted a
district court to remand any separate and independent matter "not
otherwise within its original jurisdiction.' In other words, a
district court could remand the state law claims not within its
original jurisdiction but was required to retain the federal law
claims." Moore v. DeBiase, 766 F.Supp. 1311, 1320 (D.N.J.1991)
(citations omitted) (emphasis added).
section 1441(c), as the majority and the district court have done,
fails to view the statute in context or to give meaning to the
ability now accorded a district court to remand "all matters in
which State law predominates." 28 U.S.C. § 1441(c). Under the
majority and the district court's interpretation, which is the
former interpretation and application of section 1441(c), the
district court cannot remand the 42 U.S.C. § 1983 claim, but must
retain that claim in federal court because the federal claim is not
separate and independent from the state law claims. This former
interpretation, however, would subvert amended section 1441(c) of
its present meaning by precluding the remand of all matters in
which state law predominates. See Mountain States Tel. & Tel. Co.,
472 U.S. at 249, 105 S.Ct. at 2594 (holding that specific statutory
language cannot be interpreted so as to render other language
within the same statute inoperative or meaningless).
Since the 1990 amendment of section 1441(c), district courts6
in our circuit uniformly have interpreted the revised statute to
6
District courts have been the primary federal courts to
interpret and to apply § 1441(c) since its amendment in 1990.
Even the Third Circuit, which addresses amended § 1441(c), adopts
the rationale of a Southern District of Ohio case, Kabealo v.
Davis, 829 F.Supp. 923 (S.D.Ohio 1993), aff'd mem., 72 F.3d 129(6th Cir.1995); Borough of West Mifflin v. Lancaster, 45 F.3d
780, 786 (3d Cir.1995). Lancaster also cites Buchner v.
F.D.I.C., 981 F.2d 816 (5th Cir.1993), which presents the
opposite factual and legal scenario from the underlying case in
this petition. Under § 1441(c), the Fifth Circuit concluded that
federal, not state law claims, predominated because, "[a]s the
FDIC is a party to the present suit, all of the component claims
are conclusively deemed to have arisen under federal law." Id.
at 819. Accordingly, Buchner is not analogous to the underlying
case in this petition. Furthermore, the Fifth Circuit in Buchner
did not consider the legislative history behind the 1990
amendment of § 1441(c).
accord discretion to district courts to remand an entire case,
including a federal claim, to state court if state law
predominates. Alexander ex rel. Alexander v. Goldome Credit Corp.,
772 F.Supp. 1217, 1222-25 (M.D.Ala.1991); Holland v. World Omni
Leasing, Inc., 764 F.Supp. 1442, 1443-44 (N.D.Ala.1991); Martin v.
Drummond Coal Co., 756 F.Supp. 524, 525-27 (N.D.Ala.1991)7; accord
Burnett v. Birmingham Bd. of Educ., 861 F.Supp. 1036, 1037-39
(N.D.Ala.1994). "The [present] words "may remand all matters in
which State law predominates' were substituted for the former words
"may remand all matters not otherwise within its original
jurisdiction.' This is a dramatic change." 8 Martin, 756 F.Supp.
at 525. " [E]ven if there is a federal question identified in
7
Martin was the first federal court to interpret § 1441(c)
following its amendment in 1990. District courts nationwide have
relied on Martin and its progeny in our circuit and followed its
reasoning. See, e.g., Bodenner v. Graves, 828 F.Supp. 516, 519
(W.D.Mich.1993); Lang v. American Elec. Power Co., 785 F.Supp.
1331, 1334-35 (N.D.Ind.1992); Moralez v. Meat Cutters Local 539,
778 F.Supp. 368, 370-71 (E.D.Mich.1991); Moore v. DeBiase, 766
F.Supp. 1311, 1316 n. 9, 1319 (D.N.J.1991). Lancaster, however,
specifically rejects Martin and Holland from our circuit as the
proper analysis. Lancaster, 45 F.3d at 787.
8
See Moore, 766 F.Supp. at 1320 (" "Matters,' in the context
of the prior version of section 1441(c), could only be
interpreted to mean a discrete claim or cause of action and not
the entire case.... Although Congress retained the term
"matters,' it eliminated the limitation to only claims or causes
of action not within the district court's original
jurisdiction."); see also Alexander, 772 F.Supp. at 1224-25("Note that the word used by the statute is still "matters.' The
federal court can remand all "matters' in which state law
predominates. If "matters' is construed to include all "claims,'
then a combination of claims in which a federal claim is one but
in which state law is found to "predominate' may justify a remand
of the whole case, with the federal claim included." (quoting
David D. Siegel, Changes in Federal Jurisdiction and Practice
Under the New (Dec. 1, 1990) Judicial Improvements Act, 133
F.R.D. 61, 78 (1991) (emphasis added)).
plaintiff's well-pleaded complaint, as is true in the instant case,
§ 1441(c) can still justify remanding the entire case "if state law
predominates.' " Holland, 764 F.Supp. at 1444 (quoting 28 U.S.C.
§ 1441(c)) (emphasis added); see Moore, 766 F.Supp. at 1321("Congress, by granting the discretion to remand all matters in
which state law predominates, intended to permit a district court
to remand the entire case and not just the state law claims. "
(emphasis added)).
Significantly, in cases where the federal claim is "so
intertwined with" as to be "indistinguishable from" the state law
claims, making it "very difficult, i[f] not impossible, to treat
separately," the federal court's retaining the case only because of
the federal claim "invariably" would result in a "race-to-judgment
between the federal court and the state court, and the first court
to decide its case might create a serious res judicata problem for
the other court." Holland, 764 F.Supp. at 1444; see Moore, 766
F.Supp. at 1321 ("Remand of the entire matter, including the
section 1983 claims, is even more compelling in this case because
the federal law claims are factually tied to all of the state law
claims." (citing Martin, 756 F.Supp. at 527) (emphasis added)). In
remanding the entire case, including the federal Truth in Lending
Act claim, to state court because state law predominated, the
district court determined that "[a]llowing for a remand of the
entire case allows a court to avoid piecemeal litigation and to
properly limit those cases removed to federal court to those that
truly present federal issues." Alexander, 772 F.Supp. at 1225(emphasis added).
C. Determination of State Law Predomination
Because Congress did not explain explicitly how to determine
when state law predominates over federal question jurisdiction
where pleadings invoke both state and federal law, "a value
judgment by the federal court" is required. Martin, 756 F.Supp. at
527; accord Moore, 766 F.Supp. at 1319. State law predominates "
"[i]f the federal court finds that the federal claim, while
plausible, is not really the plaintiff's main mission; that it is
only an incident or adjunct of the state claim and that the state
claim is the crux of the action....' " Moore, 766 F.Supp. at 1319(quoting 28 U.S.C.A. § 1441 Commentary (West Supp.1991)); see
Burnett, 861 F.Supp. at 1038 ("Employing the routinely accepted
proposition that removal statutes are always to be construed
against removal, the language of § 1441(c) cannot be interpreted to
recognize an exception for all state cases which simply contain a
claim invoking 42 U.S.C. § 1983 as to which state courts have
concurrent jurisdiction."). A district court decides whether state
law predominates by examining the "nature of the claims as set
forth in the pleading and by determining whether the state law
claims are more complex or require more judicial resources to
adjudicate or are more salient in the case as a whole than the
federal law claims." Moore, 766 F.Supp. at 1319 (footnote
omitted). Thus, Congress accorded district courts " broad
discretion " in determining whether to retain a removed case or to
remand it entirely to state court. Id. (emphasis added).
The district court analyzed its reasons for concluding that
state law predominates in the underlying case, although in the
context of 28 U.S.C. § 1367(c)(2).9 See Bodenner v. Graves, 828
F.Supp. 516, 518 (W.D.Mich.1993) (noting that the language of
section 1441(c) relating to the discretion of the district court to
remand " "all matters in which State law predominates'.... closely
mirrors that of § 1367(c)(2))." (quoting 28 U.S.C. § 1441(c)).
Irrespective of whether section 1441(c) or section 1367(c)(2) is
9
Recognizing that determining that state law predominates is
not merely a numerical count of the respective claims, the
district court in the underlying case used the Gibbs standard for
comparing the state and federal claims "in terms of proof, of the
scope of the issues raised, or of the comprehensiveness of the
remedy sought." Gibbs, 383 U.S. at 726, 86 S.Ct. at 1139. As to
type and amount of damages available under the federal and state
claims, the district judge determined that there is little
difference because there are no liability caps under either
federal or state claims as to the five named defendants other
than the City of Mobile. Thornton v. Kahalley, No. 95-0509-CB-C,
slip op. at 9-10 (S.D.Ala. Sept. 20, 1995) (order granting
plaintiffs' motion to remand the entire case to state court)
[hereinafter "Remand Order"]. In contrast, the district judge
found "pervasive differences in both the standards and elements
of proof" for the state versus the federal claims. Id. at 10.
Under the Alabama Dram Shop Act, the district judge explained
that the relevant defendants could be strictly liable for their
actions, and that the remaining state common law claims permit
recovery on a showing of negligence or wantonness. Under section
1983, the district judge recognized that a plaintiff is required
to show gross negligence or deliberate indifference resulting
from an official policy or custom. Thus, the district judge
concluded that the standard of proof for the section 1983 claim
was "substantially higher" than that for the various state law
claims. Id. Additionally, the district judge found that "there
are marked differences in the means available to a plaintiff to
establish his case under § 1983 and the state law claims." Id.
While Alabama law allows a municipality to be liable for
negligence under respondeat superior, the district judge
contrasted section 1983, which prohibits liability under that
theory. Because the state causes of action require lower
standards and elements of proof than does the federal civil
rights claim, the district judge concluded, as a matter of law,
that the state law claims substantially predominated in the
underlying case. Id. at 11; see Gibbs, 383 U.S. at 726, 86
S.Ct. at 1139 ("Needless decisions of state law should be avoided
both as a matter of comity and to promote justice between the
parties, by procuring for them a surer-footed reading of
applicable law.").
applied, the claims and facts are the same. Finally, the
underlying case has been proceeding in state court for two years
through discovery, and it was scheduled for trial before addition
of the section 1983 claim and its removal to federal court;
clearly, the state court is in a better position to adjudicate the
issues in the underlying case. 10 The district court acted within
its discretion accorded by section 1441(c), as amended in 1990, in
remanding the entire underlying case after determining that state
law predominated.
III. CONCLUSION
I conclude that the majority errs in limiting its discussion
to supplemental jurisdiction under 28 U.S.C. § 1367(c) and in
failing to analyze the district court's remand of the entire
underlying case under 28 U.S.C. § 1441(c), as amended. The
legislative history behind the 1990 amendment of section 1441(c)
reveals that "separate and independent claim" does not mean that
the federal claim is unrelated to the state law claims in a federal
question case. "Separate and independent claim" refers to a
legitimate federal jurisdictional basis. In a case involving both
10
In its remand order for the underlying case, the district
court explained:
The state judiciary has already invested substantial
resources in this case, has resolved numerous discovery
and other preliminary matters, and has developed
familiarity and expertise over the factual and legal
issues in this cause of action which this court
presently lacks. It would be neither an economical nor
a convenient allocation of judicial resources for this
court to seize jurisdiction over this entire action at
the eleventh hour of the state litigation.
Remand Order at 12.
valid federal and state law claims, the district court must
determine that state law claims predominate if it decides to remand
the entire case. I believe that the district court correctly
remanded the entire underlying case to state court based on the
predomination of state law claims, although I do not endorse its
statutory authority for the remand under section 1367(c),
concerning supplemental jurisdiction.
Apparently, the majority sees the dilemma of trial of federal
claims in federal court and trial of related state claims in state
court presenting the problems of conflicting federal and state
adjudications, race to judgment and res judicata; hence the
implicit suggestion to the district court that it adjudicate all
claims, state and federal. Because the majority's interpretation
of "separate and independent claim" in section 1441(c) as well as
its resolution makes the ability of district judges to remand all
matters to state court under the statute devoid of meaning, I
cannot accept it. The majority's interpretation and resolution is
particularly unsatisfactory in this underlying case where the
district judge, as factfinder, has determined that state claims
predominate, and that it is appropriate to adjudicate the single,
lately added federal claim in state court. Because I would have
dismissed the mandamus petition for the reasons explained herein
and upheld the district court's remand of the entire underlying
case to state court, I respectfully dissent.