Shekoyan, Vladmir v. Sibley Intl

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 15, 2005 Decided June 3, 2005

No. 04-7040

VLADIMIR SHEKOYAN,

APPELLANT

v.

SIBLEY INTERNATIONAL,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 00cv02519)

Dawn V. Martin argued the cause for the appellant.

Kathy M. Banke argued the cause for the appellee. Laura J.

Oberbroeckling was on brief.

Before: SENTELLE, HENDERSON and ROGERS, Circuit Judges.

Opinion filed for the court by Circuit Judge HENDERSON.

KAREN LECRAFT HENDERSON, Circuit Judge: Vladimir

Shekoyan, a lawful permanent resident of the United States

2

during all times relevant to this case, filed a suit against his

former employer, Sibley International, alleging employment

discrimination under Title VII of the Civil Rights Act of 1984

(Title VII), 42 U.S.C. §§ 2000e et seq., and retaliation under the

False Claims Act (FCA), 31 U.S.C. §§ 3729–3733. Shekoyan

also asserted state tort and breach of contract claims whose

merits are not before us. The district court dismissed

Shekoyan’s Title VII claim for lack of subject matter

jurisdiction, Shekoyan v. Sibley Int’l Corp., 217 F. Supp. 2d 59

(D.D.C. 2002). The court subsequently granted summary

judgment in favor of Sibley on the FCA claim while dismissing

Shekoyan’s pendent state law claims for lack of supplemental

jurisdiction. Shekoyan v. Sibley Int’l Corp., 309 F. Supp. 2d 9

(D.D.C. 2004). Shekoyan appeals these rulings, as well as two

unpublished orders issued by the district court related to

Shekoyan’s attempt to submit non-standard affidavits in

opposition to Sibley’s motion for summary judgment. Because

the district court correctly interpreted Title VII not to apply to

an alien employed outside the United States and properly

applied the summary judgment standard in finding for Sibley on

Shekoyan’s FCA claim, we affirm the judgment of the district

court.

I.

Vladimir Shekoyan immigrated to the United States from his

native Armenia in 1994 and was granted “lawful permanent

resident” (LPR) status in 1996.1 Shekoyan has a Ph. D. in

Finance and Economics from the University of Moscow and has

worked for Armenia’s Ministry of Economics as well as for the

1

The Immigration and Nationality Act (INA) imposes a five-year

waiting period after acquiring LPR status before an alien may apply

for U.S. citizenship. 8 U.S.C. § 1427(a). Shekoyan applied for

citizenship in 2001 and became a naturalized American citizen in

January 2003.

3

World Bank. Sibley International is a consulting firm

headquartered in Washington, D.C. that “assists foreign

governments in implementing accounting reform.” Def.’s

Statement of Material Facts Not in Dispute, Case No. 00-2519

(Apr. 28, 2003).

This lawsuit stems from Shekoyan’s employment with Sibley

from January 1998 until October 1999. Shekoyan was hired as

a “Training Advisor” on the Georgia Enterprise Accounting

Reform (GEAR) project for which Sibley had been awarded a

contract (called a “task order”) by the U.S. Agency for

International Development (USAID). The parties signed an

employment letter contract that spelled out a 21-month term of

employment with the “hope that this will be the beginning of a

longer association.”2 The contract stated Shekoyan’s place of

employment as “Tbilisi, Republic of Georgia,” and noted his

eligibility for “USAID benefits for long-term personnel living

in Georgia.” Shekoyan claims that Sibley “committed to

maintaining its employment relationship with [him] beyond the

21-month contract” and that he was to “be employed by Sibley

back in Washington, D.C.” This claim is disputed by Donna

Sibley, the president of Sibley International, who stated in her

deposition that Shekoyan’s employment beyond the GEAR

project was never discussed in more definite terms than the

“hope” expressed in the employment contract.

The hoped-for ongoing relationship never came about.

Despite a second USAID task order for Sibley to continue the

GEAR project, Shekoyan was terminated as of October 31,

1999—the end date of the original task order. The letter of

termination, dated October 20, 1999 and sent to Shekoyan’s

2

The copy of the letter contract dated January 15, 1998 contained in

the Exhibits to the Joint Appendix is not signed by Shekoyan but the

parties do not dispute that the text of the letter constitutes a valid

employment contract.

4

Washington, D.C. residence, cites “a change in staffing

requirements” as the reason Shekoyan was not rehired.

According to Sibley’s brief, the available positions under the

new task order required a degree in public accounting, which

Shekoyan did not have.

Shekoyan tells a different story. He claims that his working

relationship with his immediate supervisor Jack Reynolds

deteriorated as a result of Reynolds’s discrimination based on

Shekoyan’s national origin. Shekoyan claims that Reynolds

made statements that Shekoyan was not a “real American,”

mocked his accented English and made racist comments about

people from former Soviet states. Shekoyan also alleges

financial misconduct by Sibley staff on the GEAR project,

including use of the offices and equipment paid for by USAID

to run a private audit practice, payment of full time salaries to

individuals who were employed full time by other organizations,

use of resources supplied by USAID to develop unrelated

business for Sibley and diversion of project vehicles and staff

members by Jack Reynolds and his wife for personal tasks.

Shekoyan claims to have alerted his superiors at Sibley in

Washington regarding Reynolds’s harassment and misuse of

project resources—a claim Sibley denies—and that, as a result,

he was fired for insubordination rather than because of any

change in staffing requirements.

Shekoyan filed a lawsuit in federal district court on October

20, 2000 alleging: discrimination on the basis of national origin,

a violation of Title VII, 42 U.S.C. §§ 2000e et seq., and the

District of Columbia Human Rights Act (DCHRA), D.C. Code

§ 2-1402.11; retaliation for his investigation into the misuse of

federal funds by GEAR employees in violation of the FCA, 31

U.S.C. §§ 3729–3733; and other state law torts and breaches of

contract. Sibley moved to dismiss Shekoyan’s Title VII claim

under FED . R. CIV. P. 12(b)(1) on the ground that Title VII

protections do not extend to non-U.S. citizens working abroad

5

and to dismiss his FCA claim under FED. R. CIV. P. 12(b)(6) for

failure to allege facts sufficient to make out a whistleblower

claim. Sibley also moved to dismiss the pendent state law

claims for lack of supplemental jurisdiction. The district court

granted Sibley’s motion to dismiss the Title VII claim, finding

that because “the plaintiff is a permanent resident alien, who

was employed extraterritorially, he is outside the scope of the

protections of Title VII.” Shekoyan v. Sibley Int’l Corp., 217 F.

Supp. 2d 59, 68 (D.D.C. 2002) (Shekoyan I). Accordingly, the

district court held that it lacked subject matter jurisdiction over

the Title VII claim. Id. Turning to Shekoyan’s FCA claim, the

district court found that the complaint, which had been filed pro

se, failed to satisfy FED . R. CIV. P. 9(b), which requires that “[i]n

all averments of fraud or mistake, the circumstances constituting

fraud or mistake shall be stated with particularity.” Shekoyan I,

217 F. Supp. 2d at 73. Nevertheless, the district court granted

Shekoyan leave to amend his complaint because “‘leave to

amend is “almost always” allowed to cure deficiencies in

pleading fraud.’” Id. at 74 (quoting Firestone v. Firestone, 76

F.3d 1205, 1209 (D.C. Cir. 1996) (in turn quoting Luce v.

Edelstein, 802 F.2d 49, 56 (2d Cir. 1988))). Moreover, in

Shekoyan’s opposition to Sibley’s motion to dismiss, he set

forth 22 instances of fraud, leaving the court unable to “‘say

with assurance that … it appears beyond doubt that the plaintiff

can prove no set of facts in support of his claim which would

entitle him to relief.’” Shekoyan I, 217 F. Supp. 2d at 75

(quoting Haines v. Kerner, 404 U.S. 519, 520–21 (1972)

(internal quotation omitted) (omission in Shekoyan I). Because

Shekoyan’s state law claims derived from the same “common

nucleus of operative fact,” United Mine Workers of Am. v.

Gibbs, 383 U.S. 715, 725 (1966), as his FCA claim, the district

court chose to exercise supplemental jurisdiction and denied

Sibley’s motion to dismiss those claims. Shekoyan I, 217 F.

Supp. 2d at 75–76.

6

Shekoyan filed his first amended complaint on September 2,

2002 with the assistance of counsel. Sibley filed an answer

denying all wrongdoing and a counterclaim for the value of

certain equipment it alleged Shekoyan took from the GEAR

project site. Following discovery, on April 28, 2003, Sibley

moved for summary judgment on Shekoyan’s FCA claim. As

part of the filing in opposition, Shekoyan’s lawyer signed and

submitted an unnotarized “affidavit” that recounts the purported

substance of her telephone interviews with former Sibley

employees, including Sibley’s former Chief Financial Officer,

David Bose. Shekoyan’s filing also included an unsigned draft

declaration by Gary Vanderhoof, a former Vice President and

Project Advisor at Sibley, corroborating Shekoyan’s version of

events on the GEAR project. Sibley challenged the accuracy of

the affidavit and draft declaration and moved to strike both. In

support, Sibley submitted signed, notarized affidavits by Bose

and Vanderhoof stating that Shekoyan’s lawyer had

misrepresented their conversations and that they could not

substantiate any harassment claims. Sibley also pointed to the

transcript of the telephone conversation between Shekoyan’s

lawyer and Bose, which in several places had Bose denying any

knowledge of harassment before Shekoyan’s return to the

United States. Shekoyan countered with a Rule 11 motion for

sanctions against Sibley’s lawyers. The district court denied

Shekoyan’s Rule 11 motion and granted Sibley’s motion to

strike in part, striking from the record the unnotarized affidavit

of Shekoyan’s lawyer and the unsigned Vanderhoof declaration.

While the dispute over Shekoyan’s submissions in opposition

to Sibley’s motion for summary judgment was playing out, on

January 30, 2004, Shekoyan moved to file his own motion for

summary judgment out of time. In an unpublished order dated

February 3, 2004, the district court denied the request, noting

that all dispositive motions were required—per court order—to

be filed by April 28, 2003. On March 19, 2004, the district

7

court granted Sibley’s motion for summary judgment and

dismissed Shekoyan’s remaining state law claims and Sibley’s

remaining counterclaims. Shekoyan v. Sibley Int’l Corp., 309 F.

Supp. 2d 9, 22 (D.D.C. 2004) (Shekoyan II). The district court

found that Shekoyan failed to raise “a genuine issue as to any

material fact,” FED. R. CIV. P. 56(c), because he could show

neither that he was engaged in “protected activity” nor that he

had suffered an adverse employment action as a result thereof.

Shekoyan II, 309 F. Supp. 2d at 14, 20. Having disposed of the

last of Shekoyan’s federal claims, the district court declined to

exercise jurisdiction over the remaining District of Columbia

claims, noting that 28 U.S.C. § 1367(d) provides for the tolling

of a state’s statute of limitations when a federal court exercises

supplemental jurisdiction over state claims and concluding,

therefore, that dismissing the claims “will not adversely impact

plaintiff’s ability to pursue his District of Columbia claims in

the local court system.” Shekoyan II, 309 F. Supp. 2d at 22.

Shekoyan timely filed his notice of appeal on April 6, 2004.

Pursuant to the district court’s order in Shekoyan II, Shekoyan

filed his state and common law claims in the District of

Columbia Superior Court. Shekoyan v. Sibley Int’l Corp., C.A.

No. XX-XXXXXXX (D.C. Sup. Ct. 2004). Those proceedings are

stayed pending the outcome of this appeal.

II.

A. The Title VII Claim

Title VII of the Civil Rights Act of 1964 prohibits

discrimination in employment based on, inter alia, race or

national origin. Title VII provides that “[i]t shall be an unlawful

employment practice for an employer … to fail or refuse to hire

or to discharge any individual, or otherwise to discriminate

against any individual … because of such individual’s race,

color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a).

An “employee” is defined by Title VII, in circular fashion, as

8

“an individual employed by an employer.” Id. § 2000e(f). The

parties do not dispute that Shekoyan was “employed” by Sibley

International nor do they dispute that Sibley meets the statutory

definition of an “employer.” See id. § 2000e(b).

Shekoyan contends that the district court erred in two ways in

dismissing his Title VII claim for lack of subject matter

jurisdiction: first, by holding that Title VII does not extend to a

non-U.S. citizen employed overseas; and second, by holding

that, for Title VII purposes, Shekoyan’s place of employment

was the Republic of Georgia rather than the United States.

Shekoyan I, 217 F. Supp. 2d at 67–68. We review de novo a

district court’s dismissal of a claim under FED. R. CIV. P.

12(b)(1). Macharia v. United States, 334 F.3d 61, 64 (D.C. Cir.

2003).

The United States Supreme Court took up the issue of Title

VII’s extraterritorial application in Equal Employment

Opportunity Comm’n v. Arabian Am. Oil Co., 499 U.S. 244

(1991) (ARAMCO). In ARAMCO, the Court held that the

protections of Title VII do not extend to citizens employed by

U.S. companies overseas. It relied on the “longstanding

principle of American law ‘that legislation of Congress, unless

a contrary intent appears, is meant to apply only within the

territorial jurisdiction of the United States.’” Id. at 248 (quoting

Foley Bros., Inc. v. Filardo, 336 U.S. 281, 285 (1949)). It

explained that because the Court “assume[s] that Congress

legislates against the backdrop of the presumption against

extraterritoriality,” it will not read extraterritorial jurisdiction

into a statute “unless there is the affirmative intention of the

Congress clearly expressed.” Id. (internal quotation marks

omitted). If the statutory language is “ambiguous” or “does not

speak directly to the question presented,” the Court will not infer

9

extraterritorial jurisdiction. Id. at 250.3 The Court thus

concluded that “Congress’ awareness of the need to make a clear

statement that a statue applies overseas” combined with its use

of “more limited, boilerplate … language” manifested that the

Congress never “intended Title VII to apply abroad.” Id. at 252,

258-59.

In response to ARAMCO, the Congress amended Title VII to

extend its protections to U.S. citizens working overseas. The

statute now reads: “With respect to employment in a foreign

3

Shekoyan argues that the presumption against extraterritoriality

should not apply here because “the interests of the U.S. are clearly

affected by the assertion of Title VII jurisdiction over Sibley.” Pet’r

Br. at 22. In support he cites Envt'l Def. Fund, Inc. v. Massey, 986

F.2d 528 (D.C. Cir. 1993), which involved the extraterritorial

application of the National Environmental Policy Act, 42 U.S.C. §§

4321 et seq., to a federal agency, the National Science Foundation for

failing to prepare an Environmental Impact Statement (EIS) before

incinerating food waste in Antartica. 986 F.2d at 529. In Massey, we

first noted that the presumption against extraterritoriality “is generally

not applied where the failure to extend the scope of the statute to a

foreign setting will result in adverse effects within the United States.”

Id. at 531. The court named U.S. antitrust law, 15 U.S.C. §§ 1 et seq.,

and trademark law, 15 U.S.C. §§ 1051 et seq., as examples of statutes

enforced extraterritorially in order to avoid “negative economic

consequences” domestically. Massey, 986 F.2d at 531. Shekoyan lists

lost tax revenues to the federal government as well as the cost of

unemployment benefits paid to him as sufficient adverse consequences

to negate the presumption of territoriality. But Massey was not

decided on the “adverse consequences” exception. Rather, the court

found that “[b]ecause the decisionmaking processes of federal

agencies take place almost exclusively in this country and involve the

workings of the United States government, they are uniquely

domestic.” Id. at 532 (citation omitted). Moreover, the Massey court

expressly noted that the presumption against extraterritoriality did

apply to Title VII. Id. at 533 (citing ARAMCO, 499 U.S. at 255).

10

country,” the term “employee” “includes an individual who is a

citizen of the United States,” 42 U.S.C. § 2000e-1(f). The

Congress also retained section 2000e-1(a), which specifies that

Title VII does not apply “to an employer with respect to the

employment of aliens outside any State.” Id. § 2000e-1(a).

Shekoyan argues that his LPR status makes him a U.S. national,

thereby placing him in statutory limbo between a protected

citizen and an excluded alien. Pet’r Br. at 11. Shekoyan relies

on the Immigration and Nationality Act, 8 U.S.C. § 1101, which

defines “alien” to include “any person not a citizen or national

of the United States,” id. § 1101(a)(3), to support his

interpretation that a national should not fall within Title VII’s

“alien” exclusion for overseas employees. Yet even assuming,

arguendo, that a lawful permanent resident qualifies as a U.S.

national—a matter the parties dispute—Shekoyan faces a

significant problem: Title VII does more than merely exclude an

alien employed overseas from protection; it affirmatively grants

protection only to “a citizen of the United States.” 42 U.S.C. §

2000e(f). Especially in light of the presumption against

extraterritoriality, the Congress’s express language extending

the extraterritorial reach of Title VII only to American citizens

controls. “‘[W]hen the statute’s language is plain, the sole

function of the courts … is to enforce it according to its terms.’”

United States ex rel. Totten v. Bombardier Corp., 380 F.3d 488,

494 (D.C. Cir. 2004) (quoting Lamie v. United States Tr., 540

U.S. 526 (2004) (alteration in Bombadier) (omission added)).

The Congress is under no obligation to extend the protection

of its laws extraterritorially to every individual to whom it could

do so and courts have read Title VII’s extraterritorial jurisdiction

provision narrowly. See, e.g., Iwata v. Stryker Corp., 59 F.

Supp. 2d 600, 603 (N.D. Tex. 1999) (Title VII has “limited

extraterritorial reach”); Russell v. Midwest-Werner & Pfleiderer,

Inc., 955 F. Supp. 114, 115 (D. Kan. 1997) (“Title VII applies

only to American citizens employed abroad….”). Courts have

11

also read similar provisions in analogous statutes narrowly. See,

e.g., Reyes-Gaona v. N.C. Growers Ass’n, 250 F.3d 861, 865

(4th Cir. 2001) (interpreting Age Discrimination in Employment

Act to have “limited extra-territorial application”); Hu v.

Skadden, Arps, Slate, Meagher & Flom LLP, 76 F. Supp.2d 476,

477 (S.D.N.Y. 1999) (extraterritorial application of ADEA

“clearly limited”); O’Laughlin v. The Pritchard Corp., 972 F.

Supp. 1352, 1364 (D. Kan. 1997) (finding that “intent of

Congress” was to make “ADEA inapplicable to non-citizens of

the United States working abroad”). Moreover, the Congress

has explicitly chosen to extend extraterritorial coverage to an

LPR in other statutes. See, e.g., Arms Control Export Act, 22

U.S.C. § 2778(b) (coverage includes “every person” who

engages in brokering activities with respect to defense articles;

limited by International Traffic in Arms Regulation, 22 C.F.R.

§ 129.3(a), to apply only to a “U.S. person,”which includes an

LPR. 22 C.F.R. § 120.15). Accordingly, we hold that Title VII

does not extend extraterritorially to any person who is not an

American citizen.

Shekoyan’s alternative argument, that he was not employed

“in a foreign country” within the meaning of Title VII, 42

U.S.C. § 2000e(f), is based on the facts that he was hired and

trained in the United States, that many decisions related to his

employment were made in the United States and that his letter

of termination was sent to his Washington, D.C. residence.

Because the employment letter contract between Sibley and

Shekoyan stated Shekoyan’s place of employment as “Tbilisi,

Republic of Georgia” and classified him as “long-term personnel

living in Georgia” and because Shekoyan resided and worked

in Georgia throughout his employment with Sibley, however, we

agree with the district court that Shekoyan was engaged in

“employment in a foreign country.”

12

B. The FCA Claim

The False Claims Act, 31 U.S.C. §§ 3729-3733, imposes a

civil penalty and treble damages on any individual who, inter

alia, “knowingly presents, or causes to be presented, to an

officer or employee of the United States Government … a false

or fraudulent claim for payment or approval.” Id. § 3729(a).

The FCA permits a private party—a “relator”—to initiate a qui

tam action on behalf of the government. Id. § 3730(b). The

government has the option of taking over the suit or leaving it to

the relator to prosecute. Id. In either case, the relator is entitled

to a percentage of any recovery resulting from a successful suit.

Id. § 3730(d)(1)-(2).

The FCA also contains a “whistleblower” protection provision

which can give rise to a retaliation claim. The statute provides

that:

[a]ny employee who is discharged, demoted, suspended,

threatened, harassed, or in any other manner discriminated

against in the terms and conditions of employment by his or

her employer because of lawful acts done by the employee

… in furtherance of an action under this section … shall be

entitled to all relief necessary to make the employee whole.

Id. § 3730(h). To assert such a retaliation claim, the employee

must show: (1) that he engaged in protected activity (“acts done

… in furtherance of an action under this section”); and (2) that

he experienced discrimination “because of” his protected

activity. Id. To establish the second element, the employee

must demonstrate that the employer had knowledge of the

employee’s protected activity and that the retaliation was

motivated by the protected activity. See United States ex rel.

Yesudian v. Howard Univ., 153 F.3d 731, 736 (D.C. Cir. 1998)

(citing S. REP . NO. 99-345).

Shekoyan argues on appeal that the record raises a genuine

13

issue of material fact regarding whether he engaged in

“protected activity” under the FCA and therefore the district

court erred in granting summary judgment to Sibley. Under

FED . R. CIV. P. 56, summary judgment is appropriate only if

there is no genuine issue of material fact and the moving party

is entitled to judgment as a matter of law. Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 247–48 (1986). We review a grant

of summary judgment de novo, applying the same standards as

the district court, Tao v. Freeh, 27 F.3d 635, 638 (D.C. Cir.

1994), drawing all inferences from the evidence in favor of the

non-movant. Reeves v. Sanderson Plumbing Prods., 530 U.S.

133, 150 (2000).

We have held that the language of the FCA “manifests

Congress’ intent to protect employees while they are collecting

information about a possible fraud, before they have put all the

pieces of the puzzle together.” Yesudian, 153 F.3d at 740

(emphasis in original). Thus, while the employee “must be

investigating matters which are calculated, or reasonably could

lead, to a viable FCA action,” United States ex rel. Hopper v.

Anton, 91 F.3d 1291, 1269 (9th Cir. 1996); see also Neal v.

Honeywell Inc., 33 F.3d 860, 864 (7th Cir. 1994), it is not

necessary for a plaintiff “to ‘know’ that the investigation …

could lead to a False Claims Act suit.” Yesudian, 153 F.3d at

741. Nevertheless, “[m]ere dissatisfaction with one’s treatment

on the job is not … enough. Nor is an employee’s investigation

of nothing more than his employer’s non-compliance with

federal or state regulations.” Id. at 740. An employee does not

engage in protected conduct if he “merely inform[s] a supervisor

of the problem.” Zahodnick v. IBM Corp., 135 F.3d 911, 914

(4th Cir. 1997).

Determining whether an employee has engaged in protected

conduct under the FCA is a “fact specific inquiry.” Hutchins v.

Wilentz, Goldman & Spitzer, 253 F.3d 176, 187 (3d Cir. 2001).

Shekoyan has alleged several acts that could constitute fraud,

14

including payment of full-time salaries to persons receiving full-

time salaries from other employers and use of project resources

for personal benefit—such as project vehicles and GEAR-

financed private residences. Shekoyan reported his concerns to

one of his supervisors and asked whether he should raise them

with USAID; he was told to let Sibley investigate first. The

district court found, however, that the basis of Shekoyan’s

complaints “was because the plaintiff was apparently denied the

use of such vehicles and not that the conduct was fraudulent.”

Shekoyan II, 309 F. Supp. 2d at 18. Particularly significant is

Shekoyan’s own deposition testimony, to wit: “I have never

concluded that there was corruption. I thought that there are

some issues that need to be kind of addressed or corrected or

fixed or I don’t know, worked out, but I did not conclude that

there was a [sic] corruption.” Shekoyan’s own statement

manifests that he did no more than “inform[] a supervisor of [a]

problem,” Zahodnick, 135 F.3d at 914, and thus did not engage

in “protected activity” under the FCA.

C. The Pendent Claims

Shekoyan contends that the district court erred when, after

disposing of all of the federal claims upon which the court had

exercised supplemental jurisdiction, it dismissed his pendent

claims under District of Columbia law. Whether to retain

jurisdiction over pendent state and common law claims after the

dismissal of the federal claims is “a matter left to the sound

discretion of the district court” that we review for abuse of

discretion only. Edmondson & Gallagher v. Alban Towers

Tenants Ass’n, 48 F.3d 1260, 1265–66 (D.C. Cir. 1995).

“[P]endent jurisdiction is a doctrine of discretion, not a

plaintiff’s right.” United Mine Workers Ass’n v. Gibbs, 383

U.S. 715, 726 (1966). A district court may choose to retain

jurisdiction over, or dismiss, pendent state law claims after

15

federal claims are dismissed. 28 U.S.C. § 1367(c)(3).4

Edmondson & Gallagher, 48 F.3d at 1265–66. “[I]n the usual

case in which all federal-law claims are dismissed before trial,

the balance of factors to be considered under the pendent

jurisdiction doctrine—judicial economy, convenience, fairness,

and comity—will point toward declining to exercise jurisdiction

over the remaining state-law claims.” Carnegie-Mellon Univ.

v. Cohill, 484 U.S. 343, 350 n.7 (1988).

Shekoyan argues that this is not “the usual case,” id., because

the litigation proceeded for four years in the district court prior

to the dismissal of the last of his federal claims and because the

district judge was familiar with District of Columbia law, having

served previously for 18 years as a D.C. Superior Court judge.

Yet judicial economy is not the only relevant factor and the

district court properly considered comity as well as fairness to

the plaintiff in concluding that its rejection of his non-federal

claims would “not adversely impact plaintiff’s ability to pursue

4

The statute provides that a district court

may decline to exercise supplemental jurisdiction … if:

(1) the claim raises a novel or complex question of

State law,

(2) the claim substantially predominates over the claim

or claims over which the district court has original

jurisdiction,

(3) the district court has dismissed all claims over

which it has original jurisdiction, or

(4) in exceptional circumstances, there are other

compelling reasons for declining jurisdiction.

28 U.S.C. § 1367(c). In exercising its discretionary authority to retain

or dismiss pendent claims, the district court is to be “guided by

consideration of the factors enumerated in 28 U.S.C. § 1367(c).”

Edmondson & Gallagher, 48 F.3d at 1266.

16

[those] claims in the local court system.” Shekoyan II, 309 F.

Supp. 2d at 22. We find no abuse of discretion in the district

court’s dismissal of Shekoyan’s pendent claims.

D. Contested Procedural Orders

Shekoyan also contests two procedural orders issued by the

district court during the course of the litigation. The first is the

district court’s refusal to permit Shekoyan to file a motion for

summary judgment after the deadline for filing dispositive

motions. Order, Case No. 00-2519 (February 3, 2004)

(summary judgment order). The second is the district court’s

denial of Shekoyan’s motion for Rule 11 sanctions against

Sibley’s lawyers. Order, Case No. 00-2519 (February 17, 2004)

(Rule 11 Order). We review both orders for abuse of discretion.

See Atchinson v. District of Columbia, 73 F.3d 418, 424 (D.C.

Cir. 1996) (reviewing denial of motion to amend complaint for

abuse of discretion); Cooter & Gell v. Hartmax Corp., 496 U.S.

384, 405 (1990) (“[A]n appellate court should apply an abuse-

of-discretion standard in reviewing all aspects of a district

court’s Rule 11 determination.”). In the Rule 11 context, we

note that a district court “would necessarily abuse its discretion

if it based its ruling on an erroneous view of the law or on a

clearly erroneous assessment of the evidence.” Id.

Rule 16 of the Federal Rules of Civil Procedure instructs the

district court to “enter a scheduling order that limits the time …

to file motions [and] to complete discovery.” FED. R. CIV. P.

16(b). On December 6, 2002 the district court issued a

scheduling order that required all dispositive motions to be filed

by March 28, 2003. Order, Case No. 00-2519 (December 6,

2002) (Scheduling Order I). This deadline was later extended to

April 28, 2003. Order, Case No. 00-2519 (February 24, 2003)

(Scheduling Order II). Shekoyan filed his “Motion to File

Motion for Summary Judgment Out of Time” on January 30,

2004—more than nine months after the deadline set by

17

Scheduling Order II. Shekoyan’s explanation for the delayed

filing is that he had finally obtained an eyewitness declaration

corroborating his allegations of discrimination at Sibley. Yet

Shekoyan had earlier filed a motion to supplement his

opposition to Sibley’s motion for summary judgment with the

newly obtained declaration, which allowed the district court to

consider the material in evaluating whether summary judgment

was warranted. See Summary Judgment Order. Moreover,

corroboration of Shekoyan’s version of the facts was irrelevant

to the summary judgment analysis. At the summary judgment

stage, all inferences from the evidence are to be drawn in favor

of the non-movant. Reeves, 530 U.S. at 150. Thus, the district

court was already under an obligation to accept as true

Shekoyan’s allegations of discrimination in ruling on Sibley’s

motion for summary judgment. We therefore conclude that the

district court did not abuse its discretion in denying Shekoyan’s

motion.

Rule 11 of the Federal Rules of Civil Procedure provides for

sanctions for filing a paper with the court “for any improper

purpose,” including harassment, delay or increasing the costs of

an opponent in litigation. FED. R. CIV. P. 11(b)(1). Likewise, all

legal and factual allegations made by a litigant before the court

must be made in good faith. Id. Shekoyan filed his motion for

Rule 11 sanctions in response to Sibley’s motion to strike from

the record the disputed unsigned and unnotarized affidavits

submitted by Shekoyan’s lawyer. Rule 11 Order at 11.

Shekoyan accused Sibley’s lawyers of bad faith in filing the

motion to strike, eliciting perjured testimony and manipulating

witnesses, and violating the district court’s Local Rule 7(m),

which requires counsel to confer with opposing counsel before

filing non-dispositive motions. See Rule 11 Order at 11–12;

LCvR 7(m). In particular, Shekoyan claimed to have an audio

recording of his lawyer’s conversation with David Bose that

verified the content of the draft declaration and established

18

Sibley’s witness manipulation. The district court found that the

motion to strike was justified but that Sibley had violated Local

Rule 7(m) by failing to discuss the motion with Shekoyan.

Despite being “troubled” by the competing claims of inaccuracy

with respect to the Bose and Vanderhoof declarations, the court

refused to “sift through” the audio recording in order to

determine which party’s account was accurate. Rule 11 Order

at 12–13. Instead, it ruled that Shekoyan could use the

recording to impeach Sibley’s witnesses at trial. Id. at 13. The

Supreme Court has instructed that: “[t]he district court is best

acquainted with the local bar’s litigation practices and thus best

situated to determine when a sanction is warranted to serve Rule

11’s goal[s].” Cooter & Gell, 496 U.S. at 404. We ordinarily

find that “decisions concerning Rule 11 sanctions are better left

to the discretion of the district court which has a bird’s eye view

of the actual positions taken by the litigants,” Corley v.

Rosewood Care Ctr., Inc., 388 F.3d 990, 1013 (7th Cir. 2004)

(citing Brandt v. Schal Assocs., Inc., 960 F.2d 640, 645 (7th Cir.

1992)), and will not second guess the factual determinations

integral to the district court’s decision not to impose Rule 11

sanctions.

For the foregoing reasons, the decision of the district court is

affirmed.

So ordered.