Executive Software North America, Inc. v. U.S. Dist. Court for Cent. Dist. of California

Decision Date16 May 1994
Docket NumberNo. 93-70679,93-70679
Citation24 F.3d 1545
Parties64 Fair Empl.Prac.Cas. (BNA) 1420 EXECUTIVE SOFTWARE NORTH AMERICA, INC.; Craig Jensen; Sally Jensen, Petitioners, v. UNITED STATES DISTRICT COURT FOR the CENTRAL DISTRICT OF CALIFORNIA, Respondent, Donna L. Page, Real Party in Interest.
CourtU.S. Court of Appeals — Ninth Circuit

Belle C. Mason, Gregory N. Karasik, Knee & Mason, Los Angeles, CA, for petitioner.

David Baca, Jr., Lewis, Marenstein, Wicke & Sherwin, Woodland Hills, CA, for real party in interest.

Petition for Writ of Mandamus to Review an Order Entered by the United States District Court for the Central District of California.

Before: TANG, D.W. NELSON, and LEAVY, Circuit Judges.


The opinion and dissent filed January 27, 1994, slip op. 853, and appearing at 15 F.3d 1484 (9th Cir.1994), are withdrawn. A new opinion and dissent are filed in their place.


D.W. NELSON, Circuit Judge:

Executive Software North America, Inc., Craig Jensen, and Sally Jensen ("Petitioners") petition this court for a writ of mandamus to compel the United States District Court for the Central District of California to retain jurisdiction over certain pendent state law claims filed in an employment discrimination suit against them by the plaintiff-real-party-in-interest, Donna Page. Petitioners 1 contend that, in remanding the plaintiff's pendent state law claims, the district court misapprehended the scope of the supplemental jurisdiction statute, 28 U.S.C.A. Sec. 1367 (West Supp.1992), and failed to undertake the case-specific analysis required by that statute. In addition, Petitioners contend that, on a proper application of section 1367, a remand of their state law claims cannot be justified. Finally, Petitioners assert that mandamus is their only means of remedying this asserted error. For the reasons stated below, we grant the writ, but on narrower grounds than urged by the parties.

Factual and Procedural Background

On April 8, 1993, Donna Page filed a complaint in state court against the petitioners. She claimed to have experienced several acts of discrimination during her employment with Executive Software. Specifically, Page, a black female, alleged that the company required all of its employees to study the teachings of the Church of Scientology written by L. Ron Hubbard. Page contends that when she refused to comply, she was charged with having made a number of errors in her work, and that when she attempted to contest the charges she was denied an opportunity to do so and was terminated. Page further asserts that the charges and subsequent termination were a mere "subterfuge for illegal discrimination against non believers in the Church of Scientology, women and racial minorities."

In her complaint, Page alleged two federal causes of action, (1) a claim under Title VII, 42 U.S.C. Sec. 2000(e) et seq. (1988), and (2) a claim under 42 U.S.C. Sec. 1983 (1988), as well as three state-law causes of action, including (1) a claim for unlawful religious and racial discrimination under the California Fair Employment and Housing Act ("FEHA"), Cal.Gov't Code Sec. 12940 (Deering 1982 & Supp.1992), (2) a claim of wrongful termination in violation of the California Constitution, Art. I Sec. 7(a), and (3) a claim for negligent supervision.

Based on the two federal claims, the defendants removed the action to federal court. Subsequently, on May 20, 1993, the district court issued an order sua sponte to show cause why the three state-law claims should not be remanded to state court. The court stated that "jurisdiction over the state claims depends upon whether this Court exercises its discretion to retain [them]," and admonished the parties to consider that "the Supreme Court defined the parameters of a federal court's supplemental jurisdiction in United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966)." After noting the requirements set forth in Gibbs for exercising supplemental jurisdiction, the Court added:

Even if [the Gibbs test is] met, however, a federal court has discretion to decline jurisdiction over state law claims if, for instance, the state claims substantially predominate, the state claims involve novel or complex issues of state law, trial of the state and federal claims together is likely to result in jury confusion, or retention of the state claims requires the expenditure of substantial additional judicial time and effort. [Gibbs, 383 U.S.] at 726-27 ; see also 28 U.S.C. Sec. 1367(c); Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343 [108 S.Ct. 614, 98 L.Ed.2d 720] (1988).

The Removing Party(ies) should also be aware that this Court does not interpret the 1990 enactment of Section 1367 as restricting the discretionary factors set forth in Gibbs. Rather, this Court interprets Section 1367 as merely allowing this Court, at its discretion, to exercise jurisdiction over supplemental parties, which was previously foreclosed by Finley v. United States, 490 U.S. 545 [109 S.Ct. 2003, 104 L.Ed.2d 593] (1989).

The district court thereafter remanded the three state law claims, but provided no reasons.


This petition presents several issues. First, we must determine whether we may review the district court's order in this case and if mandamus properly is invoked. Second, we must determine whether the district court clearly erred in its interpretation and application of the supplemental jurisdiction statute, 28 U.S.C.A. Sec. 1367 (West Supp.1992), and if other factors counsel in favor of issuing the writ.

I. Reviewability

On its face, section 1447(d) of the Judicial Code would appear to bar review of the remand order in this case. That provision provides, with one exception not relevant here, that "[a]n order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise." 28 U.S.C. Sec. 1447(d) (1988). In Thermtron Prods., Inc. v. Hermansdorfer, 423 U.S. 336, 96 S.Ct. 584, 46 L.Ed.2d 542 (1976), however, the Supreme Court held that section 1447(d) barred review only of those remand orders "issued under Sec. 1447(c) and invoking the grounds specified therein--that removal was improvident and without jurisdiction," id. at 346, 96 S.Ct. at 590; see also Gravitt v. Southwestern Bell Tel. Co., 430 U.S. 723, 723-24, 97 S.Ct. 1439, 1439-40, 52 L.Ed.2d 1 (1977) (per curiam) (finding unreviewable a remand order that purported to rely on Sec. 1447(c)). In this circuit, a district court's order remanding pendent state law claims on discretionary grounds is not considered one made pursuant to section 1447(c). See Lee v. City of Beaumont, 12 F.3d 933, 935 (9th Cir.1993); Sever v. Alaska Pulp Corp., 978 F.2d 1529, 1539 (9th Cir.1992).

In this case, the district court did not provide reasons for remanding the plaintiff's state law claims. In instances of ambiguity, this circuit "look[s] to the substance of the order to determine whether it was issued pursuant to section 1447(c)." Schmitt v. Insurance Co. of N. Am., 845 F.2d 1546, 1549 (9th Cir.1988). Here, the court retained jurisdiction over the federal claims asserted by the plaintiff, and we have held that asserting "original jurisdiction over at least one of the claims" "removes the possibility that a remand order is issued pursuant to section 1447(c)." Kunzi v. Pan Am. World Airways, Inc., 833 F.2d 1291, 1295 (9th Cir.1987). Accordingly, the remand order in this case is reviewable.

"Even though the order is reviewable, we may review the order only pursuant to the proper type of review." Lee, 12 F.3d at 935. The Supreme Court in Thermtron held that remand orders, because they are not "final judgment[s] reviewable by appeal" are properly reviewed by " 'mandamus to compel action, and not by writ of error to review what has been done.' " Thermtron, 423 U.S. at 353, 96 S.Ct. at 594 (quoting Railroad Co. v. Wiswall, 90 U.S. (23 Wall.) 507, 508, 23 L.Ed. 103 (1875)). We have recognized a narrow exception to the availability of mandamus when the remand order can be appealed as a "collateral order" under the doctrine of Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225-26, 93 L.Ed. 1528 (1949), see, e.g., Lee, 12 F.3d at 935-36 (citing Whitman v. Raley's Inc., 886 F.2d 1177, 1180 (9th Cir.1989)). If the order properly is appealable as a collateral order, then mandamus is barred. See, e.g., Survival Sys. v. United States Dist. Court, 825 F.2d 1416, 1418 (9th Cir.1987), cert. denied, 484 U.S. 1042, 108 S.Ct. 774, 98 L.Ed.2d 861 (1988); Pelleport Investors, Inc. v. Budco Quality Theatres, Inc., 741 F.2d 273, 276-78 (9th Cir.1984); see also Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 8 n. 6, 103 S.Ct. 927, 933 n. 6, 74 L.Ed.2d 765 (1983) ("[F]undamentally, a court of appeals has no occasion to engage in extraordinary review by mandamus 'in aid of [its] jurisdictio[n],' 28 U.S.C. Sec. 1651, when it can exercise the same review by a contemporaneous ordinary appeal."); cf. Badham v. United States Dist. Court, 721 F.2d 1170, 1171 (9th Cir.1983) ("[W]e may not exercise mandamus jurisdiction over an action which is subject to direct appeal." (citing Moses H Cone)), cert. denied, 470 U.S. 1084, 105 S.Ct. 1844, 85 L.Ed.2d 143 (1985).

Petitioners contend that the collateral order doctrine is inapplicable because the district court did not resolve an issue of substantive law, but merely declined supplemental jurisdiction as a matter of discretion. Although we note that other circuits construe the collateral order doctrine in this context more broadly, see, e.g., Travelers Ins. v. Keeling, 996 F.2d 1485, 1489 (2d Cir.1993) (finding an order collateral if it "determines whether the dispute will be ... litigated in state court"), and more narrowly, see, e.g., Doughty v. Underwriters at Lloyd's, 6 F.3d 856, 862-64 (1st Cir.1993); Garcia v. Island Program...

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