BOROUGH OF WEST MIFFLIN and Wayne F. Evan, Petitioners, v. Gary L. LANCASTER, United States District Judge, United States District Court for the Western District of Pennsylvania; Alan D. Lindsey and Randall Coughanour; the Edward J. DeBartolo Corporation, An Ohio Corporation; Century III Associates, A Pennsylvania Partnership; Sam Vindovich; Paul Pongrace; Jeffery Heidenreich; Robert Steffey; John Thompson; Robert F. Donnelly, Individuals, Jane Doe; John Doe 1; John Doe 2; John Doe 3; John Doe 4 and John Doe 5, Respondents Gary L. Lancaster, United States District Judge, Nominal Respondent.
No. 94-3025.
United States Court of Appeals, Third Circuit.
Argued June 21, 1994. Decided Jan. 31, 1995.
Delightful or not, however, our circuit‘s law is clear, and until and unless the in banc court or the Supreme Court overrules Baltimorė Bank, we remain bound by it.
PRESENT: SLOVITER, Chief Judge, BECKER, STAPLETON, MANSMANN, GREENBERG, HUTCHINSON, SCIRICA, COWEN, NYGAARD, ALITO, ROTH, LEWIS, MCKEE and SAROKIN, Circuit Judges, and LUDWIG, District Judge.*
SUR PETITION FOR REHEARING
March 16, 1995
The petition for rehearing filed by appellee Henry E. Kates in the above captioned matter having been submitted to the judges who participated in the decision of this court and to all the other available circuit judges of the circuit in regular active service, and no judge who concurred in the decision having asked for rehearing, and a majority of the circuit judges of the circuit in regular active service not having voted for rehearing by the court in banc, the petition for rehearing is denied.
PRESENT: SLOVITER, Chief Judge, BECKER, STAPLETON, MANSMANN, GREENBERG, HUTCHINSON, SCIRICA, COWEN, NYGAARD, ALITO, ROTH, LEWIS, MCKEE and SAROKIN, Circuit Judges, and LUDWIG, District Judge.*
SUR PETITION FOR REHEARING
March 16, 1995
The petition for rehearing filed by appellees Ted D. Simmons, John Lloyd Huck, Stephen Carlotti, Fred E. Brown, Edward Merrick Bull, Raymond E. Cartledge, James E. Ferland, Ellen V. Futter, Paul Hardin, Peter Harris, the Estate of John Harrison Kreamer, Rocco J. Marano and Josh Weston in the above captioned matter having been submitted to the judges who participated in the decision of this court and to all the other available circuit judges of the circuit in regular active service, and no judge who concurred in the decision having asked for rehearing, and a majority of the circuit judges of the circuit in regular active service not having voted for rehearing by the court in banc, the petition for rehearing is denied.
Gary N. Altman (argued), Uniontown, PA, for respondents Lindsey and Coughanour.
Theodore O. Struk, Dickie, McCamey & Chilcote, P.C., Pittsburgh, PA, for remaining respondents.
OPINION OF THE COURT
PRATT, Circuit Judge:
FACTS AND BACKGROUND
The operative facts giving rise to this mandamus application are set forth in the civil complaint of respondents Alan D. Lindsey and Randall Coughanour. In September 1991 Lindsey and Coughanour were involved in disputes with security guards at an indoor shopping mall on Route 51 in West Mifflin Borough, just south of Pittsburgh, Pa. They had travelled to the mall to shop, but upon their arrival, they were “harassed, threatened, and assaulted” by the security guards. When the guards refused their request that the police be summoned, Lindsey and Coughanour themselves telephoned the West Mifflin Police Department requesting assistance. West Mifflin Police Officer Evan, one of the petitioners in this mandamus application, responded to the call. Evan refused to arrest or admonish any of the guards, but told Lindsey and Coughanour to leave the mall and never come back; otherwise, they would be arrested.
The following day, Lindsey returned to the mall in an attempt to talk to someone from the DeBartolo organization, which owned the mall, to find out why he had been accosted and why he was not permitted on the mall without permission. During the next three weeks Lindsey repeatedly and unsuccessfully attempted to contact Sam Vindovich, the mall manager, one of the defendants in the underlying action, to find out why he and Coughanour were banned from the mall. Lindsey finally consulted his present counsel, who advised him that the law permitted his entrance to the mall as long as the mall was open to the public.
On September 27, 1991, Lindsey and Coughanour returned to the mall to shop, but were accosted and handcuffed in the mall men‘s room, and then dragged through the mall corridor to mall offices to await the arrival of Officer Evan.
Evan then wrote out summary offense citations for disorderly conduct and defiant trespass. Lindsey and Coughanour were photographed by a Polaroid camera, and the photographs were attached to printed forms that said “DEFIANT TRESPASS“. These paper forms contained, among other things a warning that, if Lindsey and Coughanour came onto the mall property again, they would be arrested. These preprinted forms were then displayed on a bulletin board in the mall at the security offices for everyone passing in front of the board to see.
The handcuffs were then removed, and Lindsey and Coughanour were ordered to leave the mall, separately, which they did. They were prosecuted and convicted in Common Pleas Court on charges stemming from the incidents at the mall, but on February 26, 1993, a three judge panel of the Superior Court of Pennsylvania vacated the convictions and discharged them.
Lindsey and Coughanour then filed a seven count complaint in the Court of Common Pleas of Allegheny County, Pennsylvania, claiming that they had committed no crimes while at the mall and that they had been maliciously abused and prosecuted. As defendants, they named the Borough of West Mifflin and Officer Evan (“the municipal defendants“), who are the petitioners in this mandamus proceeding, as well as the owners, supervisors, and security officers of the mall (“the DeBartolo defendants“). Specifically, Lindsey and Coughanour alleged: (1) state law claims of malicious prosecution, malicious abuse of process, assault, and conspiracy against all defendants; (2) a negligence claim against the municipal defendants; (3) a negligence claim against the DeBartolo defendants; and (4) a federal claim under
Relying on the federal civil rights claim, the municipal defendants filed a notice of removal from the state court to the United States District Court for the Western District of Pennsylvania. Lindsey and Coughanour then moved to remand the case back to state court. Magistrate Judge Kenneth J. Benson recommended a remand under
[t]he issues of state law clearly predominate in this matter. Not only do they predominate with respect to the state law claims, but there is also a predominance of state law issues with respect to the single claim pursuant to § 1983.
United States District Judge Gary L. Lancaster adopted the report and recommendation “as the opinion of the court” and entered a two page Memorandum and Order granting Lindsey and Coughanour‘s motion to remand the entire case.
The municipal defendants now seek in this court a writ of mandamus to compel Judge Lancaster to accept jurisdiction of this action, which, they contend, was properly removed under
DISCUSSION
Preliminarily, it is clear that we have jurisdiction to review the district court‘s remand order. While appellate review of remands is somewhat restricted (see
an order remanding a case to the State court from which it was removed pursuant to section 1443 [“civil rights cases“] of this title shall be reviewable by appeal or otherwise.
A. Federal Jurisdiction Generally.
Removal and remand issues must be considered in light of the general principles of federal subject matter jurisdiction. There are several sources for original jurisdiction in the federal courts: federal question jurisdiction of civil actions arising under the Constitution, laws, or treaties of the United States,
In addition,
* * * in any civil action of which the district courts have original jurisdiction [except diversity cases], the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution.
B. Removal Jurisdiction Generally.
Cases begun in state court over which a federal court may also have jurisdiction can be removed by the defendants under
Section 1441(a) reads in relevant part:
(a) Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the dis-
trict courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending. For purposes of removal under this chapter, the citizenship of defendants sued under fictitious names shall be disregarded.
Under (a), therefore, unless otherwise barred by Congress, any civil action brought in a state court (plaintiff‘s choice) over which a federal district court would have original jurisdiction may be removed by the defendant (defendant‘s choice) to a district court. This would include both federal question and diversity cases as well as the miscellaneous federal jurisdiction cases.
In the case now before us, Lindsey‘s and Coughanour‘s state court action included a claim under
Under
C. Application of § 1441(c).
The dispute on this mandamus application focuses on the effect of subdivision (c) of
Whenever a separate and independent claim or cause of action, which would have been removable if sued upon alone, is joined with one or more otherwise nonremovable claims or causes of action, the entire case may be removed and the district court may determine all issues therein, or, in its discretion, remand all matters not otherwise within its original jurisdiction.
In 1990, Congress amended
Whenever a separate and independent claim or cause of action within the jurisdiction of 1331 of this title 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 in which State law predominates.
In enacting the amendment to
A fair reading of the Congressional intent in enacting the amendment to
In the present case, the district court relied upon the addition which reads “the district court may ... remand all matters in which State law predominates” to remand the entire case, including the § 1983 claim, to state court. It did so without regard for the requirement, which the Congress left unchanged when it amended
It is apparent, then, that “§ 1441(c) grants the district court only a limited authority to remand a case.” Kabealo v. Davis, 829 F.Supp. 923, 926 (S.D.Ohio 1993) (citing to Buchner v. F.D.I.C., 981 F.2d 816 (5th Cir. 1993)). In Kabealo, the plaintiff had brought a federal claim under the Racketeer Influenced and Corrupt Organizations Act,
Even if it is assumed that § 1441(c) would authorize the remand of an entire case, including federal claims, plaintiff must establish that remand of this case would be appropriate under 1441(c). That section provides for removal or remand only where the federal claims are “separate and independent” from the state law claims with which they are joined in the complaint [citing authorities]. Where there is a single injury to plaintiff for which relief is sought, arising from an interrelated series of events or transactions, there is no separate and independent claim or cause of action under 1441(c). American Fire & Casualty Co. v. Finn, 341 U.S. 6 [71 S.Ct. 534, 95 L.Ed. 702] (1951). The use of different counts to plead different legal theories or multiple theories of recovery does not automatically make those counts separate and independent.
Kabealo, 829 F.Supp. at 926. The court then found that because the plaintiff in that case relied on the same set of facts for all counts of the complaint, including the RICO count,
Kabealo, drawing heavily upon Buchner, stands alone among the district courts in having reached the same conclusion as Buchner reached and as we reach here. Other district courts have apparently read the 1990 amendments as broadening rather than narrowing the scope of their discretion to remand. We cannot agree.
For instance, in Moore v. DeBiase, 766 F.Supp. 1311 (D.N.J.1991), the complaint presented allegations similar to the allegations found in the present case. Moore had accused DeBiase, a police supervisor, of malicious abuse of authority, abuse of police procedure, a conspiracy to terminate Moore, defamation, and violation of § 1983 by depriving him of his “rights, privileges, and immunities secured by the United States Constitution and New Jersey Law.” Id. at 1314. Moore also sought damages against the Borough of Dunnellen and the Dunnellen Police Department under conspiracy and respondeat superior theories. Id.
Without determining that Moore‘s § 1983 claim was “separate and independent” from his state law claims, the district court remanded all of Moore‘s claims, including his § 1983 claim. It did so in the belief that the phrase “all matters in which State law predominates” in
As we have pointed out, however, unless the federal question claims removed by
Similarly in the present case, Lindsey and Coughanour rely on the same series of events for all counts of their complaint, including the federal § 1983 count; therefore, the federal claim is not separate and independent under
D. Application of § 1367(c).
The plaintiffs insist that, even if the district court was not authorized to remand this entire case under
Further,
As we have indicated,
Subsection (a) of
(c) The district courts may decline to exercise supplemental jurisdiction over a claim under subsection (a) if—
- the claim raises a novel or complex issue of State law,
- the claim substantially predominates over the claim or claims over which the district court has original jurisdiction,
- the district court has dismissed all claims over which it has original jurisdiction, or
- in exceptional circumstances, there are other compelling reasons for declining jurisdiction.
Section 1367(a)‘s grant of “supplemental” jurisdiction was intended to broaden the preexisting scope of what had previously been termed “pendent” jurisdiction to include claims involving the addition of parties. H.R.Rep. No. 416, 101st Cong., 2d Sess. 29 (1990), reprinted in 1990 U.S.C.C.A.N. 6802, 6875. Section 1367(c), on the other hand, was intended simply to codify the preexisting pendent jurisdiction law, enunciated in Gibbs and its progeny, concerning those instances in which a district court is authorized to decline to hear a state claim it would have the power to hear because of its relationship to an original federal jurisdiction claim. H.R.Rep. No. 416, 1990 U.S.C.C.A.N. at 6875 (Subsection 1367(c) “codifies the factors that the Supreme Court has recognized as providing legitimate bases upon which a district court may decline jurisdiction over a supplemental claim, even though it is empowered to hear the claim.“). It is of particular importance in the present context to note that the “substantially predominates” standard found in
It has consistently been recognized that pendent jurisdiction is a doctrine of discretion, not of plaintiff‘s right. Its justification lies in considerations of juridical economy, convenience and fairness to litigants; if these are not present a federal court should hesitate to exercise jurisdiction over state claims, even though bound to apply state law to them, Erie R. Co. v. Tompkins, 304 U.S. 64 [58 S.Ct. 817, 82 L.Ed. 1188]. Needless decisions of state law should be avoided both as a matter of comity and to promote justice between the parties, by procuring for them a surer-footed reading of applicable law. Certainly, if the federal claims are dismissed before trial, even though not insubstantial in a jurisdictional sense, the state claims should be dismissed as well. Similarly, if it appears that the state issues substantially predominate, whether in terms of proof, of the scope of the issues raised, or of the comprehensiveness of the remedy sought, the state claims may be dismissed without prejudice and left for resolution to state tribunals.
* * * * * *
[Even after the pretrial process has been completed and trial commenced,] recognition of a federal court‘s wide latitude to decide ancillary questions of state law does not imply that it must tolerate a litigant‘s effort to impose upon it what is in effect only a state law case. Once it appears that a state claim constitutes the real body of a case, to which the federal claim is only an appendage, the state claim may fairly be dismissed.
Gibbs, 383 U.S. at 726-27, 86 S.Ct. at 1139 (footnotes omitted).
Under Gibbs jurisprudence, where the claim over which the district court has original jurisdiction is dismissed before trial, the district court must decline to decide the pendent state claims unless considerations of judicial economy, convenience, and fairness to the parties provide an affirmative justification for doing so. Lovell Mfg. v. Export-Import Bank of the United States, 843 F.2d 725 (3d Cir.1988); Growth Horizons, Inc. v. Delaware County, 983 F.2d 1277 (3d Cir.1993). Where the original federal jurisdiction claim is proceeding to trial, however, such considerations will normally counsel an exercise of district court jurisdiction over state claims based on the same nucleus of operative facts unless the district court can point to some substantial countervailing consideration. This is the teaching of our opinion in Sparks v. Hershey, 661 F.2d 30 (3d Cir.1981), where the complaint asserted a civil rights claim under
We do not hold that where there is a common nucleus of operative facts, state claims must always be appended to the federal claim; but where, as here, the district court does not set forth a persuasive, reasoned elaboration for dismissing the state claims, we are inclined to believe that the dictates of “judicial economy, convenience, fairness to the parties, and comity” ... are better served by recognizing pendent jurisdiction. This is especially true where it is desirable to avoid the possibility of duplicating the recovery of damages. Here it is preferable for a single fact finder, under proper instruction from the court, to consider the varying elements of damages recoverable under the federal § 1983 claim and the state wrongful death and survival actions.... We will therefore reverse the district court‘s order dismissing the pending state claims and direct that court to exercise jurisdiction over them.
Sparks, 661 F.2d at 33-34 (citations omitted).
Plaintiffs do not suggest that subparagraphs (1), (3), or (4) of
As we have noted, the “substantially predominates” standard of
Given the origin of the “substantially predominate” standard, a district court‘s analysis under
This leaves the issue of whether the state claims can be said to “substantially predominate ... in terms of ... the scope of the issues raised.” Id. It is true that the state claims here outnumber the federal claims. The “substantially predominate” standard, however, is not satisfied simply by a numerical count of the state and federal claims the plaintiff has chosen to assert on the basis of the same set of facts. An analysis more sensitive to the relevant interests is required.
There are, to be sure, a complementary set of state law issues arising out of the state claims based on the alleged assault, arrest, and prosecution. But these state issues do not appear from our vantage point to substantially predominate over the comparable but distinct federal issues. Plaintiffs do not suggest that these state issues are more important, more complex, more time consuming to resolve, or in any other way more significant than their federal counterparts.
The only other state issues are those which may arise from the plaintiffs’ negligence claims against the municipal defendants and the DeBartolo defendants. The dimensions of those claims are not clear at this stage of the case, but it seems unlikely to us that they will cause the state issues to “substantially predominate” within the meaning of
In short, while we do not foreclose the parties from hereafter arguing, and the district court from hereafter considering, the issue posed by
SUMMARY AND CONCLUSION
The district court had subject matter jurisdiction over the
Accordingly, the petition for a writ of mandamus is granted.
PRATT
CIRCUIT JUDGE