Ramirez v. Fox Television Station, Inc.

• Citation: 998 F.2d 743
• Decision Date: 14 July 1993
• Docket Number: No. 91-56233,91-56233
• Parties: 143 L.R.R.M. (BNA) 2834, 62 Fair Empl.Prac.Cas. (BNA) 489, 62 Empl. Prac. Dec. P 42,449, 125 Lab.Cas. P 10,768, 26 Fed.R.Serv.3d 1158 Rosario RAMIREZ, Plaintiff-Appellant, v. FOX TELEVISION STATION, INC.; Chuck Ammann; Nancy Ferguson, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 743

998 F.2d 743

143 L.R.R.M. (BNA) 2834, 62 Fair

Empl.Prac.Cas. (BNA) 489,

62 Empl. Prac. Dec. P 42,449,

125 Lab.Cas. P 10,768, 26 Fed.R.Serv.3d 1158

Rosario RAMIREZ, Plaintiff-Appellant, v. FOX TELEVISION STATION, INC.; Chuck Ammann; Nancy Ferguson, Defendants-Appellees.

No. 91-56233.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Feb. 1, 1993.

Decided July 14, 1993.

Raymond P. Boucher, Santa Monica, CA, for plaintiff-appellant.

Joel P. Kelly, McKenna & Cuneo, Los Angeles, CA, for defendants-appellees.

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

Before: WALLACE, Chief Judge, SNEED and HALL, Circuit Judges.

WALLACE, Chief Judge:

This appeal primarily concerns jurisdiction. It requires that we determine, first, whether we have appellate jurisdiction and, second, whether the district court had removal jurisdiction. Ramirez appeals from the district court's dismissal without prejudice, in which she charged that her employer, Fox Television Stations, Inc. (Fox), discriminated against her on the basis of her national origin. Fox argues that we do not have appellate jurisdiction because the district court's dismissal was not a final decision. Ramirez asserts that we have jurisdiction, that the district court did not, and thus that the court erred in refusing to remand Ramirez's case to state court. Ramirez also challenges the district court's imposition of a monetary sanction against her attorney. The district court exercised jurisdiction pursuant to 28 U.S.C. § 1441 and 29 U.S.C. § 185(a). Our jurisdiction over this timely appeal can only be pursuant to 28 U.S.C. § 1291. We reverse all but the award of sanctions and remand with directions to remand Ramirez's action to state court.

I

Ramirez is employed by Fox as an engineer at a local television station in Los Angeles. She alleges in her complaint that Fox subjected her to discrimination in the terms and conditions of her employment because of her national origin. She alleges that, unlike "anglo employees," she was required to take sick leave for a portion of her jury service and was required to provide verification of that service. She also charges that she was bypassed as the audio engineer for Dodgers baseball games despite her requests for those assignments and despite her superior qualifications. She asserts, finally, that Fox failed to post job openings or to promote minority employees.

During the course of her employment, Ramirez has been represented by a union. A collective-bargaining agreement (Bargaining Agreement) between Fox and her union has governed the terms and conditions of her employment. The Bargaining Agreement contains grievance and arbitration procedures designed to resolve employment disputes.

Without first utilizing those procedures, Ramirez filed suit in California state court. She alleged only one cause of action: that Fox, by discriminating against her on the basis of her national origin, had violated the California Fair Employment and Housing Act (California Employment Act). Cal.Gov't Code § 12940 (West Supp.1993). Fox successfully sought removal of Ramirez's case to federal court on the ground that her claim required interpretation of the Bargaining Agreement and was therefore completely preempted by section 301 of the Labor Management Relations Act (Labor Act), 29 U.S.C. § 185(a).

Ramirez subsequently moved to remand her case to state court. The district court denied her motion, ruling that her claims "are considered to be preempted by § 301 of the Labor Management Relations Act." Fox then moved for summary judgment. Ramirez submitted opposition papers which were nearly identical to those she had submitted in support of her motion to remand. The court declined to rule on the summary judgment motion and instead dismissed Ramirez's "case," without prejudice, because Ramirez had failed to exhaust the grievance procedure under the Bargaining Agreement. Although the district court's order states that Ramirez's "case" was dismissed without prejudice, at the summary judgment hearing the court stated that her "claim" was dismissed and that the "matter" was dismissed.

Ramirez argues to us that the district court erred in failing to remand her case because it is not preempted by section 301 of the Labor Act. Absent complete preemption, her argument continues, the district court lacked jurisdiction over her case. Ramirez also appeals from the district court's award of a $150 sanction against her counsel for submitting a nearly identical set of papers on two different occasions during the litigation.

II

Before reaching the question of whether the district court had removal jurisdiction, we must determine whether we have appellate jurisdiction. Fox argues that we do not because the district court's dismissal order is not a "final decision." Under 28 U.S.C. § 1291, only final decisions are appealable.

The Supreme Court has instructed that the finality requirement of section 1291 "should be given a practical rather than a technical construction." United States v. Lee, 786 F.2d 951, 956 (9th Cir.1986) (Lee ), citing Gillespie v. United States Steel Corp., 379 U.S. 148, 152, 85 S.Ct. 308, 310, 13 L.Ed.2d 199 (1964). A final decision or order is most often characterized as one that "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." Coopers & Lybrand v. Livesay, 437 U.S. 463, 467, 98 S.Ct. 2454, 2457, 57 L.Ed.2d 351 (1978) (internal quotation omitted). As we also have held, "an order which effectively sends a party out of court is appealable." Lee, 786 F.2d at 956.

Thus, a district court's dismissal of a complaint is normally not appealable, while the dismissal of the underlying action is. See Hoohuli v. Ariyoshi, 741 F.2d 1169, 1171 n. 1 (9th Cir.1984) (Hoohuli ); Scott v. Eversole Mortuary, 522 F.2d 1110, 1112 (9th Cir.1975). To the extent the district court follows this clear direction, our job is made easy. Ambiguity in dismissal orders breeds needless additional rules. For example, we have stated that if the court intended the dismissal of the complaint to dispose of the action, that dismissal may be considered final and appealable. Hoohuli, 741 F.2d at 1171 n. 1. In addition, the district court's failure to allow leave to amend "supports an inference that the district court intended to make the order final." Gerritsen v. de la Madrid Hurtado, 819 F.2d 1511, 1514 (9th Cir.1987).

The terminology employed by the district court in this case is confusing. There was no mention of dismissing the action or dismissing the complaint. Rather, at different times, the court stated that it was dismissing Ramirez's "claim," dismissing the "matter," and dismissing the "case." In each instance the court indicated that the dismissal was "without prejudice." The district court's intentions are difficult, if not impossible, to discern from these phrases. In order to solve this unnecessary but fairly frequent problem, we are required to "focus on the effect of the ruling rather than the label placed on it." Lee, 786 F.2d at 955.

In contrast to the ambiguous labels utilized by the district court, the effect of the court's order appears to have ended the litigation of Ramirez's original claim and sent her out of the district court. See id. at 956. The court effectively terminated her litigation by concluding that her state-law cause of action is completely preempted by section 301 of the Labor Act. Ramirez subsequently could pursue a claim under the Bargaining Agreement and then, perhaps, in district court under section 301 of the Labor Act. That claim, however, would be a new one, distinct from her original action. Rather than alleging that Fox violated the California Employment Act, she would have to allege that Fox violated the Bargaining Agreement. This is not a case where the district court dismissed a complaint to allow exhaustion or amendment of the complaint. Any amendment would need to be based on an entirely different theory of action. Thus, the district court's dismissal, resting as it did on the conclusion that Ramirez's claim was preempted, appears to have effectively ended litigation of Ramirez's original state-law cause of action.

Although it is difficult to discern the intent of the district court, there are other indicia of finality. The district court did not specifically give Ramirez leave to amend, and there is no indication that an amendment would have cured the "defect" in her complaint. See McGuckin v. Smith, 974 F.2d 1050, 1053 (9th Cir.1992) (reaffirming principle that if a plaintiff cannot cure the defect that led to dismissal, the order of dismissal is appealable). The district court based its dismissal on Ramirez's failure to exhaust the grievance procedures under her Bargaining Agreement. Not until she exhausted those potential remedies could she return to court. Merely amending her complaint presumably would not have been sufficient to raise a claim under her Bargaining Agreement, and it certainly could not have resurrected her state-law cause of action. We conclude that the district court's dismissal constitutes a final order and, therefore, we have jurisdiction over Ramirez's appeal.

III

Ramirez argues that the district court lacked jurisdiction over her action and therefore erred in denying her motion to remand her case to state court. The denial of a motion to remand an action to state court for lack of removal jurisdiction is reviewed de novo. Chmiel v. Beverly Wilshire Hotel Co., 873 F.2d 1283, 1285 (9th Cir.1989) (Chmiel ).

A district court may remove an action from state court only if the action could have been brought in the district court originally. See 28 U.S.C. § 1441(a) and (b); Jackson v. Southern California Gas Co., 881 F.2d 638, 641 (9th Cir.1989) (Jackson). In the absence of diversity jurisdiction, this issue turns on the presence or absence of a federal question. See 28 U.S.C. §...