2. Permissive Remand
Plaintiff next argues that, even if the Court is not precluded from
exercising jurisdiction, it should nevertheless decline to exercise such
jurisdiction based on principles of fairness, judicial economy and comity
(the permissive remand theory.) Following dismissal of a plaintiffs
federal claims, the Court must decide whether to retain his supplemental
state claims or remand them to state court. See generally Schwarzer,
Tashima & Wagstaffe, Federal Civil Procedure Before Trial, at ¶
2:156 (TRG 2002.) "In the usual case in which all federal-law claims are
eliminated before trial, the balance of factors . . . will point toward
declining to exercise jurisdiction over the remaining state-law claims."
Acri v. Varian Associates 114 F.3d 999, 1001 (9th Cir. 1997) (en banc),
(citing Carnegie-Mellon, 484 U.S. at 350, n. 7, 108 S.Ct. at 619, n. 7.)
Factors the Court should consider when deciding whether to retain
jurisdiction over supplemental state claims include judicial economy,
convenience, fairness, and comity. Acri, 114 F.3d at 1001. In deciding
whether to retain jurisdiction or remand, the court also may consider
whether plaintiff has engaged in "manipulative tactics" — i.e., is
dismissing federal claims in an exercise in unprincipled forum shopping.
See, e.g., Carnegie-Mellon, 484 U.S. at 357.
We begin our analysis by turning to the factor of judicial economy.
"Judicial economy [is] the essential policy behind the modern doctrine of
pendent jurisdiction". Graf v. Elgin, J. & E. Ry., 790 F.2d 1341, 1347
(7th Cir. 1986.) This Court has expended only modest effort in
supervising this case. There were no motions of any kind filed by either
plaintiff or defendant prior to the motions that are the subject of this
opinion and order. The Court's involvement in this case has been limited
to holding two Case Management Conferences and issuing a pre-trial
order. The Court has not performed any substantive legal analysis that
will need to be duplicated or re-done by the state court. Accordingly,
the factor of judicial economy weighs in favor of remand.
The factor of comity also weighs strongly in favor of remand. Having
successfully moved to dismiss his federal claims, plaintiff now proceeds
exclusively on his state claims. Plaintiff brings most of his state-law
claims under FEHA. Although many portions of FEHA are informed by
principles of federal ADA jurisprudence, see, e.g., Haynal v. Target, WL
806706, at *2 (S.D.Cal. 1996), the California legislature's amendments to
FEHA in 2000 potentially mark a substantial departure from the analogous
standards of the ADA. Colmenares v. Braemar Country Club,
89 Cal.App.4th 778 (2001) (under review by the California Supreme
Court). If the California Supreme Court rules that the 2000
FEHA amendments apply retroactively, plaintiffs state-law claims may be
decided by state-law standards that differ markedly from those contained
in the ADA.*fn5 If the 2000 FEHA amendments apply to plaintiffs claims,
it is clearly better policy to have state courts, rather than federal
courts, decide how those amendments should be interpreted. As plaintiff
points out in his moving papers, many issues under the 2000 FEHA
amendments will be issues of first impression, and if such issues are to
work their way up through the appellate courts, comity dictates that it
should be California appellate courts, not federal courts, that resolve
such issues. Even if the California Supreme Court decides that the 2000
FEHA amendments are not retroactive, it is still preferable as a matter
of comity (respect for our sister state institutions) for state court
judges to apply state law to plaintiffs state-law claims. Accordingly,
regardless of the decision in Colmenares, the factor of comity weighs
heavily in favor of remand.
The factors of convenience and fairness cut markedly in neither
direction. Both forums are equally convenient to the parties because both
the federal forum and the state forum in this particular case are located
in the city of Oakland. The case, therefore, will be tried in Oakland
regardless of the Court's decision on plaintiffs remand motion.
As to fairness, a state forum will provide just as fair a proceeding as
a federal one. Moreover, given the need to postpone further case
development until the California Supreme Court issues its opinion in
Colmenares, it is not likely to take longer to get to trial in the state
court than it would here. In some cases, a remand to state court might
open the door to a new round of discovery, a development that might be
unfair to defendant and a windfall to plaintiff. In his brief, however,
plaintiff claims that a new round of discovery is not likely, since
discovery is presently on track to be completed by the end of October,
2002. Defendant does not contend that remand, by itself, would trigger a
need or an entitlement to any additional discovery.*fn6 Moreover,
whether any significant additional discovery could be justified likely
will depend on the ruling in Colmenares — and the considerations
triggered by that ruling will be identical in state and federal court.
Nor is there any basis for assuming that this Court would be any more
protective than a state judge of all parties' real fairness interests.
Finally, the Court is permitted to consider obvious efforts to forum
shop when ruling on a motion to remand. Carnegie-Mellon, 484 U.S. at
357. In his papers, plaintiff relies on the case of Baddie v. Berkeley
Farms, 64 F.3d 487 (9th Cir. 1995), for the proposition that district
courts may not consider forum manipulation as a factor in the remand
analysis. We find plaintiffs reliance on Baddie misplaced for two
reasons. First, although the Baddie ruling occurred in the context of a
remand motion, the issue addressed was the propriety of an attorney fee
award entered against the plaintiffs in connection with their motion to
remand. In Baddie, plaintiffs amended their complaint to delete federal
causes of action and moved to remand following the defendants' removal of
their employment discrimination action. Baddie, 64 F.3d at 489. The
District Court hearing the remand motion granted the motion to remand,
but also awarded defendants their attorneys fees incurred between removal
and remand pursuant to 28 U.S.C. § 1447 (c) ("section 1447(c)"),
finding that both removal and remand had been precipitated by plaintiffs'
manipulative pleading practices. Id. Plaintiffs appealed the fee award,
but did not challenge that portion of the judge's order granting their
remand motion. Id. The appellate court found that section 1447(c) did not
authorize an award of fees against plaintiffs where both removal and the
subsequent remand were proper. The court also found that plaintiffs'
conduct had not been manipulative, and that, therefore, even had the fee
award been authorized by section 1447(c), the judge's decision to
grant fees in those circumstances was erroneous. Id. at 490.
Second, and more importantly, the Baddie court did not hold that forum
manipulation should not be considered in a remand analysis. Rather, the
Baddie court found that the plaintiffs in that case had not engaged in
improper forum manipulation. The Court based this finding, in part, on
the timeliness of plaintiffs motion, reasoning that plaintiffs moved for
remand "with all due speed" after removal. Id. at 491. In the instant
case, in contrast, it is not at all clear that plaintiff moved to remand
"with all due speed" following removal. Instead, he waited for over
twenty months. Given that major difference, plaintiff can cull virtually
no support for his position from Baddie.
We are concerned that there may have been an element of forum
manipulation in plaintiffs remand motion, but it is far from clear that
any improper motive is the driving force here. It was responsible
lawyering by plaintiffs counsel not to dismiss the parallel federal
claims if the state claims were vulnerable to dismissal on
non-substantive grounds. And it clearly is legitimate to want state
judges to address claims based on state law — especially when that
law is difficult and unsettled. Thus, while concern about forum
manipulation deserves some play in our analysis, it is not clear that
this factor weighs heavily in defendant's favor.
Having considered all of the pertinent factors, we hold that the scales
tip decidedly in favor of remand. We therefore GRANT plaintiffs motion to
REMAND this now wholly state law case to state court.
For the reasons stated above, the Court GRANTS plaintiffs motion to
amend his Second Amended Complaint to delete his federal claims and
REMANDS this case to state court. Plaintiffs federal claims are dismissed
With entry of the remand order, plaintiffs case is DISMISSED, without
prejudice, from this court's docket. Accordingly, the court VACATES the
pending trial date as well as the discovery and dispositive motion cut-off
The Court's dismissal of this case leaves it with no authority to
entertain plaintiffs motion to amend his Second Amended Complaint to
clarify certain legal theories and to change certain factual
IT IS SO ORDERED.
This Opinion and Order terminates the following motions: 33-1, 33-2,
33-3, 33-4, 33-5.