Romulus Community Schools, In re

Decision Date07 March 1984
Docket Number83-1377,COUNTY-MEA,Nos. 83-1374,s. 83-1374
Citation729 F.2d 431
PartiesIn re ROMULUS COMMUNITY SCHOOLS, a Michigan Public School District, Romulus Community Schools Board of Education, a Michigan Public Body Corporate, and Daniel R. Bales, Kenneth E. Berlinn, Sandra F. Langley, Jo Ann Marvicson, Richard F. Campbell, Mary M. King, and Edward L. Wilkerson, (83-1374), Petitioners. WAYNE/NEA, and Mary Christine Powers, on behalf of themselves and as class representatives of all others similarly situated, Plaintiffs-Appellees, v. ROMULUS COMMUNITY SCHOOLS, a Michigan public school district, Romulus Community Schools Board of Education, a Michigan public body corporate, and Daniel R. Bales, Kenneth Berlinn, Sandra F. Langley, Jo Ann Marvicson, Richard F. Campbell, Mary M. King, and Edward L. Wilkerson, (83-1377), Defendants-Appellants.
CourtU.S. Court of Appeals — Sixth Circuit

Thomas H. Schwarze, Terrence J. Miglio argued, Gary P. King, Keller, Thoma, Schwarze, Schwarze, DuBay & Katz, Detroit, Mich., for defendants-appellants.

Eli Grier, Erwin B. Ellmann, Jay W. Tower, Harvey I. Wax argued, Levin, Levin, Garvett & Dill, Southfield, Mich., for plaintiffs-appellees.

Before KEITH and WELLFORD, Circuit Judges and BROWN, Senior Circuit Judge.

BAILEY BROWN, Senior Circuit Judge.

This case primarily presents difficult and unsettled issues regarding the authority of a federal district court to remand a properly removed case to state court for reasons not expressly established by statute. Our decision depends largely on our reading of Thermtron Products, Inc. v. Hermansdorfer, 423 U.S. 336, 96 S.Ct. 584, 46 L.Ed.2d 542 (1976), a case that is now the subject of varying interpretations among the circuits.

This case arose out of a class action filed by the Wayne County, Michigan MEA-NEA, a consolidated labor organization representing the teachers and certified personnel of the Romulus Community Schools, and Mary Christine Powers, president of the Wayne County MEA-NEA. The suit was filed in the Wayne County Circuit Court charging the defendants, the Romulus Community Schools, the Romulus Community Schools Board of Education, and the elected members of the Board, with improperly and unlawfully reducing the compensation of the plaintiff class. The plaintiffs alleged that in November 1982, following negotiations over renewal of plaintiffs' contract, the defendants unilaterally effected a 22 percent reduction in the plaintiffs' salaries.

The original complaint comprised four counts. The first count alleged that the reduction constituted a breach of the employment contract and an impairment of contract in violation of article I, section 10 of the Michigan Constitution of 1963. The second count charged that the reduction constituted the denial of a property right under the Teacher Tenure Act, MICH.COMP.LAWS ANN. Sec. 38.91 and that such a denial without notice and hearing violated the procedural protections of the Teacher Tenure Act, MICH.COMP.LAWS ANN. Secs. 38.101-104, and the due process clause of the fourteenth amendment. For the Constitutional deprivation, the plaintiffs sought relief under 42 U.S.C. Sec. 1983 and attorney's fees The defendants properly filed a petition for removal to the U.S. District Court for the Eastern District of Michigan pursuant to 28 U.S.C. Sec. 1441(a), (b), and so removed the case. Shortly thereafter, the plaintiffs filed a motion in federal district court to amend their complaint by striking the federal claim in count two which had formed the only basis for removal. The plaintiffs also moved to remand the case, after the amendment, to state court. The plaintiffs maintained that the case turned on unresolved issues of state law that should be heard in the first instance by a state court. The defendants opposed both motions, arguing that the plaintiffs sought to dismiss the federal claim merely to defeat the district court's jurisdiction. The defendants also objected to dismissal of the federal claim without notice to class members as required by Rule 23(e), FED.R.CIV.P.

under 42 U.S.C. Sec. 1988. In the third count the plaintiffs claimed that the alleged unilateral reduction in salary constituted a refusal to bargain in good faith in violation of provisions of the Public Employment Relations Act, MICH.COMP.LAWS ANN. Secs. 423.209-210. In the fourth count the plaintiffs alleged that the defendants' financial mismanagement had created fiscal difficulties for the school system; the plaintiffs therefore sought a court-appointed receiver to provide additional relief for the plaintiff class.

Following arguments on the motions, the district court issued a memorandum opinion and order dismissing the federal claim without prejudice and remanding the case to state court. The court noted its broad discretion to permit amendments under FED.R.CIV.P. 15(a) and characterized the federal claim as one that "they [the plaintiffs] are not really interested in pursuing." The court added: "We do not believe that plaintiffs should be penalized for carelessly pleading a federal claim under which they cannot really obtain the relief they seek." The court noted that the elimination of the federal claim did not divest the court of its jurisdiction over the case. "We recognize that under the doctrine of pendent jurisdiction, we may still retain jurisdiction over plaintiffs' remaining state claims. Nevertheless, we will exercise our discretion, and remand the state claims."

The court's exercise of its perceived discretion to remand the case was based on its reading of United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966). Following the reasoning in Gibbs that federal courts should avoid deciding issues of state law if federal claims are dismissed before trial, the district court found that "overriding state interests" and considerations of comity required a remand to state court. Regarding the defendants' objection that class members were not notified of the dismissal of the federal claim, the court ruled that notice was not required because the class had not been certified. The court also found that the "defendants should not bear the cost of this remand contest and may move separately for their costs and attorney fees."

Following the court's order allowing withdrawal of the federal claim and the remand, the defendants sought an immediate appeal by moving for certification and entry of final judgment under Rule 54(b), FED.R.CIV.P. or for a determination under 28 U.S.C. Sec. 1292(b) that the order involved a "controlling question of law" and could be appealed albeit an interlocutory decision. 1 The defendants filed a notice of appeal of that portion of the order so permitting the plaintiffs to amend their complaint. The defendants also petitioned this court for a writ of mandamus to prevent the remand of the case to state court and moved this court to stay proceedings in the state court pending resolution of the petition. This court denied the stay and referred Plaintiffs contend that the order dismissing their claim under Sec. 1983 is not a "final decision" and therefore not appealable under 28 U.S.C. Sec. 1291. They further contend that this court has no jurisdiction to entertain the mandamus petition or that, in any case, this court cannot properly grant mandamus relief under the circumstances presented here.

all matters in the appeal and in the petition to this hearing panel.


We shall consider first the petition for mandamus attacking the propriety of the remand. 2 At the outset, we must clarify the stated grounds for the district court's remand. We find, contrary to the plaintiffs' urgings, that the court's remand was not based on either of two statutory provisions, 28 U.S.C. Sec. 1447(c) and 28 U.S.C. Sec. 1441(c), that authorize remand of cases removed to federal court. Furthermore, we hold that neither of these provisions would authorize a remand in this case.

The district court, as noted above, relied not upon statutory authority to remand the case but rather upon a district court's discretion to dismiss state law claims where jurisdiction is solely pendent. Nevertheless, the plaintiffs urge that the court's order was made pursuant to 28 U.S.C. Sec. 1447(c) that authorizes a remand of a case which "was removed improvidently and without jurisdiction." The district court, however, correctly held that it had jurisdiction over the remaining claims under the court's pendent jurisdiction. Nowhere does the court's decision imply that removal was improvidently granted. Therefore, the predicate for a remand under 28 U.S.C. Sec. 1447(c) was never satisfied. Accordingly, we hold that the district court did not, in fact, rely on 28 U.S.C. Sec. 1447(c) and that no grounds exist on appeal for reliance on that provision.

The plaintiffs contend, in the alternative, that the court's authority to remand the case is founded on 28 U.S.C. Sec. 1441(c). This provision states:

Whenever a separate and independent claim or cause of action, which would be removable if sued upon alone, is joined with one or more otherwise non-removable claims or causes of action, the entire case may be removed and the district court may determine all issues therein, or, in its discretion, may remand all matters not otherwise within its original jurisdiction.

We cannot agree with the plaintiffs that the district court, which did not mention Sec. 1441(c) in its order, nevertheless relied on that statutory provision. A finding that the claims are related for purposes of pendent jurisdiction implies that the claims arose from a common nucleus of operative facts. Gibbs, 383 U.S. at 725, 86 S.Ct. at 1138. In this case, not only do all the claims arise from the alleged reduction in pay, the claims all seek redress for that reduction. Where a plaintiff seeks to recover for a single wrong or injury under various legal theories, the plaintiff is not...

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