Bailey v. Walsh ( 2003 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-50249
Summary Calendar
GWENDOLYN BAILEY; MARY LOPEZ; JOSEPHINE S.
STEPHENSON; BELINDA GONZALES; GEORGIA
SUTHERLAND; SUSAN DENSON; SUSAN MILLER;
LETICIA RIVAS; LINDA ROSE; MARGARET DECKER;
HELEN YOUNG,
Plaintiffs-Appellees,
versus
DEAN NICK WALSH, Individually and as
representative of University Physician’s
Group; UNIVERSITY PHYSICIANS GROUP,
Defendants-Appellants.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. SA-00-CV-1563
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January 28, 2003
Before BARKSDALE, DEMOSS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
In October of 2000, Gwendolyn Bailey (“Bailey”) and ten
other plaintiffs asserted federal and state law claims in Texas
state court against the University Physicians Group (“UPG”) and
its former President, Dr. Nicholas Walsh. UPG removed the case
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 02-50249
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to federal court shortly thereafter. Just before the onset of
trial, the presiding judge, Judge Garcia, unfortunately passed
away. Less than a week before trial, Bailey sought remand to
state court, allowing that the federal claim averred was
insufficient. The district court granted the motion to remand
and allowed the federal claim to be withdrawn from the complaint.
Appellants complain of both of these rulings.
Bailey argues that this court lacks jurisdiction. This
court may hear the appeal from an order to remand made on a basis
other than the lack of subject matter jurisdiction. Roark v.
Humana, Inc., 307 F.3d 298, 311 (5th Cir. 2002). Here, the
district court could not have been more explicit. Despite
Bailey’s contentions, the district court noted that it did in
fact have subject matter jurisdiction and remanded only on the
basis of its own exercise of discretion. Thus, we may entertain
this appeal.
We reject appellants’ argument that the district court erred
in remanding the state law claims. In light of the limited pre-
trial discovery and the unfortunate passing of Judge Garcia, the
district court was well within its wide discretion as to the
order of remand where only supplemental state law claims
remained. See Guzzino v. Felterman, 191 F.3d 588, 595 (5th Cir.
1999).
We likewise reject the argument that the district court
erred in allowing the federal claims to be withdrawn from the
No. 02-50249
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complaint. Withdrawing a claim from within a complaint is
properly seen as an amendment of the complaint. Ryan v.
Occidental Petroleum Corp., 577 F.2d 298, 302 n.2 (5th Cir.
1978). The grant of a motion to amend a complaint is within the
discretion of the district court. Jacobsen v. Osborne,133 F.3d
315, 318 (5th Cir. 1998). However, the motion should be granted
in the absence of a substantial reason to deny. Id. The only
danger posited by the appellants that is risked by the grant of
the motion to amend the complaint is the possibility that Bailey
will re-assert the federal cause of action. However, that danger
is inherent to any grant of a motion to withdraw a cause of
action, a legal maneuver that is not per se forbidden. In the
absence of any substantial reason to deny, the district court did
not abuse its discretion in granting the motion to withdraw the
federal cause of action.
AFFIRMED.