779 F.2d 517 (9th Cir. 1985), 83-7815, Clorox Co. v. United States Dist. Court for Northern Dist. of California

Docket Nº:83-7815.
Citation:779 F.2d 517
Party Name:The CLOROX COMPANY, Petitioner, v. The UNITED STATES DISTRICT COURT FOR the NORTHERN DISTRICT OF CALIFORNIA, Respondent, Carol Stower, Real Party.
Case Date:December 26, 1985
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 517

779 F.2d 517 (9th Cir. 1985)

The CLOROX COMPANY, Petitioner,

v.

The UNITED STATES DISTRICT COURT FOR the NORTHERN DISTRICT

OF CALIFORNIA, Respondent,

Carol Stower, Real Party.

No. 83-7815.

United States Court of Appeals, Ninth Circuit

December 26, 1985

Argued and Submitted April 13, 1984.

Resubmitted Oct. 29, 1984.

Page 518

Robert Fries, Steinhart & Falconer, San Francisco, Cal., for petitioner.

Stephen L. Roycraft, Barfield, Barfield, Dryden & Ruane, San Francisco, Cal., for respondent.

Page 519

Appeal from the United States District Court for the Northern District of California.

Before: SKOPIL, NORRIS, and HALL, [*] Circuit Judges.

SKOPIL, Circuit Judge:

Clorox Company ("Clorox") petitions for a writ of mandamus requiring the district court to vacate its order remanding this action to the state court from which it was removed. The previous opinion of this court, reported at 756 F.2d 699 (9th Cir.1985), denying the petition for a writ of mandamus is hereby withdrawn and replaced by this opinion. We grant Clorox's petition for rehearing but find it unnecessary to hold a second round of oral argument. On the limited facts of this case, we construe the petition for a writ of mandamus as a notice of appeal and reverse the district court.

FACTS AND PROCEEDINGS BELOW

Carol Stower, a participant in Clorox's employee welfare benefit plan, filed the underlying action against Clorox in Alameda County (California) Superior Court. Stower's complaint asserted several claims: loss of salary and benefits due to wrongful termination, misrepresentation of intent to pay disability benefits, negligent administration of Clorox's employee benefit plan, and malicious conduct in terminating her employment and benefits. Clorox removed the action to federal court under 28 U.S.C. Secs. 1331 and 1441(a). Clorox predicated its removal on the existence of a federal question under the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. Secs. 1001-1381 (1982).

Thereafter, Stower moved the district court to remand the action to state court on the following grounds: (1) her complaint asserted only state claims and made no claims under ERISA; (2) Clorox could not remove the action to federal court because ERISA provides concurrent jurisdiction; and (3) Clorox expressly waived its right to removal by stating in its employee handbook that suits may be filed in state or federal court.

The district court granted Stower's motion to remand, finding that statements made in an employee handbook estopped Clorox from asserting its right to removal. Clorox sought mandamus relief in this court to prevent the district court from remanding this case to state court. Stower opposed the grant of mandamus relief, contending that (1) this court lacks jurisdiction to review the district court's order; (2) Clorox waived its right to removal by a statement in its employee handbook; and (3) there is no federal question jurisdiction because Stower's claims arise under state law, not ERISA.

We conclude that because the district court's order is appealable under 28 U.S.C. Sec. 1291, extraordinary review by mandamus is not available. Nonetheless, for the reasons stated hereinafter, we construe the writ of mandamus as a notice of appeal and reverse the district court.

DISCUSSION

Mandamus is an extraordinary remedy and one that will be employed only in extreme situations. Kerr v. United States District Court, 426 U.S. 394, 402, 96 S.Ct. 2119, 2123, 48 L.Ed.2d 725 (1976); Sacramento Bee v. United States District Court, 656 F.2d 477, 480-81 (9th Cir.1981), cert. denied, 456 U.S. 983, 102...

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