Gwendolyn Glenn v. Mary Carter

Case: 11-50273 Document: 00511702934 Page: 1 Date Filed: 12/21/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 21, 2011
No. 11-50273
Summary Calendar Lyle W. Cayce
Clerk
GWENDOLYN GLENN,
Plaintiff-Appellee
v.
MARY L. CARTER,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:09-CV-71
Before KING, JOLLY, and GRAVES, Circuit Judges.
PER CURIAM:*
Gwendolyn Glenn filed this civil action in state court seeking declaratory
and injunctive relief against Mary L. Carter and IndyMac Bank (IndyMac). The
Federal Deposit Insurance Corporation (FDIC), as IndyMac’s receiver, removed
the action to federal court pursuant to 12 U.S.C. § 1819(b)(2)(B), the FDIC
removal statute. After Glenn’s claims against IndyMac were dismissed with
prejudice, she moved to remand her remaining state law claims against Carter
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
Case: 11-50273 Document: 00511702934 Page: 2 Date Filed: 12/21/2011
No. 11-50273
to state court. The district court entered an order remanding the case, and
Carter now appeals that order.
The district court, in addressing Carter’s challenge to the remand order,
stated that its remand order was unreviewable under 28 U.S.C. § 1447(d). In a
case such as this, however, where federal jurisdiction existed at some point but
the federal claims were dismissed or settled, a district court’s remand of the
remaining state law claims is a discretionary decision that is reviewable by this
court. See Bogle v. Phillips Petroleum Co., 24 F.3d 758, 761-62 (5th Cir. 1994).
Nevertheless, on the record before us and in light of the deference owed the
district court’s decision, we conclude that the district court did not abuse its
discretion in declining to retain jurisdiction over Glenn’s supplemental state law
claims against Carter. See Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350
(1988); Smith v. Amedisys Inc., 298 F.3d 434, 446 (5th Cir. 2002); Hook v. The
Morrison Milling Co., 38 F.3d 776, 786 (5th Cir. 1994).
Carter maintains that the district court’s remand order was erroneous
because diversity jurisdiction existed in this case. The basis for federal diversity
jurisdiction was not distinctly and affirmatively alleged in this case. Mullins v.
TestAmerica, Inc., 564 F.3d 386, 397 (5th Cir. 2009). More specifically, there was
no allegation that the amount in controversy exceeded $75,000. See 28 U.S.C.
§ 1332(a). Carter has not met her burden of showing that diversity jurisdiction
existed, New Orleans & Gulf Coast Ry. Co. v. Barrois, 533 F.3d 321, 327 (5th Cir.
2008), and the order of remand is AFFIRMED.
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