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Kaye v. Board of Trustees of the San Diego County Public Law Library

December 11, 2007

MICHAEL KAYE, PLAINTIFF,
v.
BOARD OF TRUSTEES OF THE SAN DIEGO COUNTY PUBLIC LAW LIBRARY, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Hayes, Judge

ORDER

The matter before the Court is the Motion for Partial Remand, filed by Plaintiff Michael Kaye. (Doc. # 7).

Background

On April 18, 2007, Plaintiff filed a Complaint in the Superior Court of California against the San Diego County Public Law Library ("Law Library"), Board of Trustees of the Law Library ("Board of Trustees"), Robert Riger, individually and in his official capacity as Director of the Law Library, and Joan Allen-Hart, individually and in her official capacity as Assistant Director of the Law Library (collectively "Defendants"). Notice of Removal, p. 1-2. (Doc. # 1).

The Complaint alleges that Plaintiff was employed by the Law Library as a full-time reference librarian. The Complaint alleges that on March 5, 2006, Plaintiff disseminated a nine-page email ("Email") to Defendant Allen-Hart and all full-time reference librarians on the Law Library reference staff which addressed "several matters of public concern," including the discontinuance by Law Library management of library classroom programs for the education of self-represented litigants. Id. at 3. The Complaint alleges that on or about March 21, 2006, Defendants initiated disciplinary proceedings against Plaintiff for insubordination and misconduct in connection with the Email. Id. at 4. The Complaint alleges that on or about August 1, 2006, Defendants issued a letter of termination which notified Plaintiff that his employment at the Law Library would end effective August 3, 2006. Id. at 6. The Complaint alleges that Plaintiff filed a post-termination administrative appeal with the Board of Trustees. Id. at 5. The Complaint alleges that on or about December 18, 2006, the Board of Trustees issued a formal written decision sustaining Plaintiff's termination. Id. at 10.

The Complaint alleges the following causes of action: (1) Defendants terminated Plaintiff without providing a pre-termination or post-termination evidentiary hearing, in violation of his procedural due process rights as protected by the Fifth and Fourteenth Amendments of the United States Constitution, and in violation of the California Constitution and the California Labor Code, (2) Defendants did not permit Plaintiff to inspect his personnel file, in violation of his due process rights as protected by the Fifth and Fourteenth Amendments of the United States Constitution, and in violation the California Constitution and the California Labor Code, (3) the library administration, instead of the Board of Trustees, terminated Plaintiff, in violation of section 6345 of the California Business and Professions Code, (4) Defendants failed to comply with the notice and open session requirements governing public employee disciplinary proceedings, in violation of the Ralph M. Brown Act, section 54957 of the California Government Code, (5) Defendants terminated Plaintiff based on his protected public employee speech, in violation of Article I, section 2(a) of the California Constitution, and (6) Defendants did not honor the whistle blower protections of the California False Claims Act, section 12653 of the California Government Code. Plaintiff seeks a judicial declaration that Defendants violated Plaintiff's statutory and constitutional rights, a peremptory writ of mandate commanding Defendants to reinstate Plaintiff to his former position as a reference librarian at the Law Library, and damages.

On May 22, 2007, Defendants filed a Notice of Removal under 28 U.S.C. section 1441(a). (Doc. # 1). The Notice of Removal asserts federal question jurisdiction under 28 U.S.C. section 1331. Defendants contend that the Complaint alleges violations of the Fifth and Fourteenth Amendments of the United States Constitution, and the Federal Civil Rights Act of 1871, 42 U.S.C. section 1983. Defendants contend that the Court should assert supplemental jurisdiction over any state law claims raised in the Complaint under 28 U.S.C. section 1367(a). Notice of Removal, p. 2.

On August 6, 2007, Plaintiff filed a Motion for Partial Remand. Plaintiff contends that the Court should decline supplemental jurisdiction over the Complaint's third, fourth and fifth causes of action on grounds that they raise novel or complex issues of state law and that considerations of economy, convenience, fairness and comity counsel in favor of remand. On August 31, 2007, Defendants filed a Response in Opposition to the Motion to Remand. (Doc. # 9). On September 10, 2007, Plaintiff filed a Reply to Defendant's Opposition to the Motion to Remand, which requested for the first time that the Court remand the Complaint's sixth cause of action in addition to the third, fourth and fifth causes of action. (Doc. # 11). On November 29, 2007, the Court granted Defendants leave to file any response to Plaintiff's request to remand the sixth cause of action by December 10, 2007. (Doc. # 19). On December 10, 2007, Defendants filed a Reply to Response to Motion re Motion for Partial Remand, which opposed Plaintiff's request to remand the Complaint's sixth cause of action. (Doc. # 22).

Standard of Review

Under 28 U.S.C. section 1441(a), "any civil action brought in a State court of which the district 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 . . . ." 28 U.S.C. § 1441(a). Pursuant to 28 U.S.C. section 1367, "in a civil action of which the district courts have original jurisdiction, 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." 28 U.S.C. § 1367(a).

Federal courts have broad authorization under 28 U.S.C. section 1367 to assert supplemental jurisdiction over state law claims when the state and federal claims derive from a "common nucleus of operative fact," the claims are such that the plaintiff "would ordinarily be expected to try them all in one judicial proceeding," and the federal issues are substantial. Executive Software North America, Inc. v. Jensen, 24 F.3d 1545, 1552 (9th Cir. 1994).However, "[i]t has consistently been recognized that [supplemental] jurisdiction is a doctrine of discretion." Id. at 1556.

Under section 1367(c), a court can decline to assert supplemental jurisdiction over a pendant claim if one of the following four categories applies:

(1) the claim raises a novel or complex issue of State law,

(2) the claim substantially predominates over the claim or claims over which the district court ...


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