J.O. v. Alton Community Unit School Dist. 11, 89-1441

• Citation: 909 F.2d 267
• Decision Date: 03 August 1990
• Docket Number: No. 89-1441,89-1441
• Parties: 62 Ed. Law Rep. 65 J.O. and P.O., Individually and as parents and next friends of D.O., J.B. and C.B., Individually and as parents and next friends of S.B., E.S. and B.S., Individually and as parents and next friends of M.S., Plaintiffs-Appellants, v. ALTON COMMUNITY UNIT SCHOOL DISTRICT 11, Eugene L. Frizzo, E.M. Ervin, David P. Lauschke, Verna J. Lewis, Joyce Robinson, Bob L. Perica, Sandra L. Strohmeier, all individually and in their official capacity as members of the Alton Community Unit School District 11 Board of Education, Dr. David B. VanWinkle, Individually and in his official capacity as Superintendent of the Alton Community Unit School District 11, James B. Clark, Individually and in his official capacity as Principal of East Middle School of the Alton Community Unit School District 11 and Lester Mann, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 267

909 F.2d 267

62 Ed. Law Rep. 65

J.O. and P.O., Individually and as parents and next friends

of D.O., J.B. and C.B., Individually and as parents and next

friends of S.B., E.S. and B.S., Individually and as parents and next friends of M.S., Plaintiffs-Appellants, v. ALTON COMMUNITY UNIT SCHOOL DISTRICT 11, Eugene L. Frizzo,

E.M. Ervin, David P. Lauschke, Verna J. Lewis, Joyce

Robinson, Bob L. Perica, Sandra L. Strohmeier, all

individually and in their official capacity as members of

the Alton Community Unit School District 11 Board of

Education, Dr. David B. VanWinkle, Individually and in his

official capacity as Superintendent of the Alton Community

Unit School District 11, James B. Clark, Individually and in

his official capacity as Principal of East Middle School of

the Alton Community Unit School District 11 and Lester Mann,

Defendants-Appellees.

No. 89-1441.

United States Court of Appeals, Seventh Circuit.

Argued April 4, 1990.

Decided Aug. 3, 1990.

Lynn M. Travis, Coppinger, Carter, Schrempf & Blaine, Alton, Ill., for plaintiffs-appellants.

C. Dana Eastman, Jr., Thomas, Mottaz, Eastman & Sherwood, John M. Delaney, Jr., Allen, Mendenhall & Associates, Alton, Ill., Joseph B. McDonnell, Churchill & McDonnell, Belleville, Ill., for defendants-appellees.

Before WOOD, Jr., and COFFEY, Circuit Judges, and NOLAND, Senior District Judge. ^*

HARLINGTON WOOD, Jr., Circuit Judge.

An involved procedural question complicates this action under 42 U.S.C. Sec. 1983, originally brought in state court with a plethora of state claims. The defendants removed this case to federal court and promptly moved for a dismissal of the plaintiffs' section 1983 claims. The district court granted this motion and, with only pendent state claims remaining, sua sponte remanded the case back to state court. The plaintiffs now appeal the district court's actions.

I. FACTUAL BACKGROUND

Bringing this action both individually and on behalf of their school-age children, the plaintiffs allege that Lester Mann sexually molested the children while employed as a teacher with the Alton Community Unit School District No. 11. In the federal counts of their complaint, the plaintiffs sue the school district, the school board members, the school superintendent, and the school principal [hereinafter "school defendants"] under 42 U.S.C. Sec. 1983 for violation of their fourteenth amendment rights. In addition to the civil rights counts, the plaintiffs also sued these same defendants and Mann under state tort law. This suit was originally filed in the Third Judicial Circuit for the state of Illinois.

Unhappy with the state forum, the school defendants removed this case to the United States District Court for the Southern District of Illinois. Pursuant to FED.R.CIV.P. 12(b)(6), these defendants then filed motions to dismiss the plaintiffs' section 1983 claims as well as some of their state claims. The district court granted the defendants' motion as to the section 1983 claims. Left with only pendent state claims, the district court remanded the case back to state court on its own motion.

Having brought the case in state court originally, the plaintiffs are now displeased to have to return there without their civil rights claims. Therefore, the plaintiffs asked the district court to reconsider its remand order or, in the alternative, for leave to amend their complaint. In a short order, the district court concluded that once it had remanded the case to state court, it was without jurisdiction to take any further action. ¹ Therefore, the court denied the plaintiffs' motion. The plaintiffs have now appealed from all of the district court's orders.

II. JURISDICTION

Although neither party addressed it, there are involved jurisdictional questions about our review of the district court's orders. In effect, the district court's actions encompassed two orders. First, the district court determined that the plaintiffs' complaint failed to state a cause of action under section 1983, dismissed that portion of the complaint, and refused to allow the plaintiffs to amend their complaint. Second, with only pendent state claims remaining, the district court exercised its discretion and remanded these claims back to state court. Thus, the district court's holdings can be separately characterized as a dismissal order and a remand order. Although we are satisfied that we have jurisdiction to review both of the district court's orders, our jurisdiction is not so self-evident that we can dispense with a tedious discussion.

A. Jurisdiction over Remand Order

Taking the district court's decisions in reverse order, the first jurisdictional question is whether we have the power to review the district court's order remanding this case on the discretionary grounds that only pendent state claims remain. Under 28 U.S.C. Sec. 1447(d), "an order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise." ² On its face, subsection 1447(d) appears to be an absolute bar against appellate review of any district court remand order.

But appearances can be deceiving; in practice, subsection 1447(d) has been given a less restrictive application. In Thermtron Products v. Hermansdorfer, 423 U.S. 336, 96 S.Ct. 584, 46 L.Ed.2d 542 (1976), the Supreme Court held that subsection 1447(d) should be construed together with the grounds for remand in 28 U.S.C. Sec. 1447(c). See 423 U.S. at 345-46, 96 S.Ct. at 590-91. The result was a rule allowing appellate court review of any remand order entered on grounds other than those specified in subsection 1447(c). ³ See 423 U.S. at 350-51, 96 S.Ct. at 592-93. Consequently, some courts interpreted subsection 1447(c) as stating the exclusive grounds for remand and disapproved district courts' remands on any other grounds, including remands of pendent state law claims. E.g., Cook v. Weber, 698 F.2d 907, 909-10 (7th Cir.1983).

In Carnegie-Mellon University v. Cohill, 484 U.S. 343, 108 S.Ct. 614, 98 L.Ed.2d 720 (1988), the Supreme Court overruled this lower-court interpretation of subsection 1447(c) and held that a district court may exercise its discretion to remand a case back to state court when all independent federal bases for jurisdiction are gone and only pendent state claims remain. 484 U.S. at 357, 108 S.Ct. at 622. In making this ruling, the Supreme Court's majority opinion acknowledged that subsection 1447(c) did not authorize such a remand but instead held that traditional principles of pendent jurisdiction allowed a district court to relinquish jurisdiction over a removed case that involved only pendent claims. See 484 U.S. at 348-52, 355 n. 11, 108 S.Ct. at 618-20, n. 11. Thus, by framing its decision in terms of pendent jurisdiction, Carnegie-Mellon reinforces the proposition that a remand of pendent state claims is outside the grounds for removal listed in subsection 1447(c).

This aspect of Carnegie-Mellon returns us to the rule earlier articulated in Thermtron Products: federal appellate courts have the power to review orders remanding a case on grounds other than those listed in subsection 1447(c). Read together, the holdings in Carnegie-Mellon and Thermtron Products authorize appellate jurisdiction over a district court's remand of pendent state claims. The most notable support for such an interpretation would be Carnegie-Mellon itself, where the Supreme Court heard an appeal from an appeal of a district court's remand of pendent state claims. In Carnegie-Mellon the Court decided the district court's power to order the remand but never suggested that it and the lower appellate court lacked the power to hear an appeal from the district court's order. Furthermore, a panel of this court divided over the propriety of a remand order in Rothner v. City of Chicago, 879 F.2d 1402 (7th Cir.1989), but uniformly commented that appellate jurisdiction would exist in the case of a remand of pendent state claims. See 879 F.2d at 1406, 1420. At least one other court of appeals has also read Thermtron Products and Carnegie-Mellon in a similar manner. See In re Life Ins. Co. of North America, 857 F.2d 1190, 1193 n. 1 (8th Cir.1988).

Based on Thermtron Products, Carnegie-Mellon, and this and other courts' comments, we find appellate jurisdiction exists over the part of the district court's order remanding the pendent state law claims, but we pause to comment on two other aspects of the case that complicate our decision. First, in addition to specifying the grounds for remand, subsection 1447(c) requires a certified copy of the district court's remand order to be mailed to the clerk of the state court. The record in this case does not indicate that the district court mailed a certified copy of its order to the state court, and we assume this means that the Illinois state courts have not yet reasserted jurisdiction over this case. Nevertheless, there is no suggestion that the district court's failure to mail a certified copy of its order constitutes a jurisdictional bar to our review of the case. Despite its noncompliance with the procedural requirements, the district court clearly intended its remand order to be a final disposition of the case. A second problem arises with respect to the plaintiffs' direct appeal from the remand order. The Supreme Court's holding in Thermtron Products, indicates that our only power to review a remand order is through a petition for a writ of mandamus. See 423 U.S. at 352-53, 96 S.Ct. at 593-94. We will follow the same course as we have in the past and treat the direct appeal from the remand order as a petition for a writ of mandamus. See Rothner, 879 F.2d at 1418.

B. Jurisdiction over Dismissal Order

Deciding that we have jurisdiction over the part of the district court's holding that remands this case to the state court, we now must turn to the other part of the district court's holding that dismissed the plaintiffs' section 1983 claims and refused to allow an...