# McCarthy v. Mayo > Court of Appeals for the Ninth Circuit · September 14, 1987 · 827 F.2d 1310 URL: https://www.frixlaw.com/law-library/cases/8953067 ## Case - **Full name:** Michael F. McCARTHY v. Stephen A. MAYO, individually, and in his capacity as Special Deputy Attorney General for the State of Hawaii and as Special Assistant U.S. Attorney William J. Eggers, III, individually, and in his capacity as Special Deputy Attorney General for the State of Hawaii Roy Y. Yempuku, individually, and in his capacity as attorney for Pacific Loan and for Thrift Guaranty Susan Ichinose, individually, and in her capacity as attorney for Pacific Loan and for Thrift Guaranty Corporation Mary Bitterman, individually, and as Director of Regulatory Agencies for the State of Hawaii and in her capacity as head of the Bank Examiner Division of that body Tany S. Hong, individually, and as former Director of the Department of Regulatory Agencies for the State of Hawaii and in his capacity as Attorney General for the State of Hawaii Lester Wee, individually, and in his capacity as Bank Examiner for the State of Hawaii Edward R. Lebb, individually, and in his capacity as Attorney for the Bank Examiner for the State of Hawaii - **Court:** Court of Appeals for the Ninth Circuit - **Decided:** September 14, 1987 - **Citations:** 827 F.2d 1310 - **Precedential status:** Published - **Opinion:** Dissent by Skopil - **Judges:** Farris, Scannlain, Skopil - **Cited by:** 132 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8953067 ## How later opinions describe it (automated extraction) - stating that a notice 26 of appeal from the denial of a Civil Rule 60(b) motion extended to underlying judgment where district court incorporated 27 underlying judgment in Civil Rule 60(b) order, appellant’s opening brief addressed the propriety of the underlying judgment 28 a… - stating that a notice of appeal from the denial of a Rule 60(b) motion extended to underlying judgment where district court incorporated underlying judgment in Rule 60(b) order, appellant’s opening brief addressed the propriety of the underlying judgment and the defendant full… - stating that a timely Rule 59(e) motion tolls the time period for filing a notice of appeal and that the thirty-day time period for filing the notice of appeal begins when the district court denies the Rule 59(e) motion - stating that it could be fairly inferred that the appellant intended to appeal the original summary judgment against him “when he designated the denial of his post-judgment motions as the order being appealed” - explaining that a grand jury determines whether probable cause exists in a federal prosecution, and affirming dismissal of malicious prosecution claim in light of grand jury’s determination of probable cause ## Opinion text SKOPIL, Circuit Judge, dissenting in part: I concur in all but part 4(B) of the majority’s opinion. I disagree with the majority’s conclusion that the district court did not abuse its discretion in reaching the merits of thirteen pendent state claims. Of the fourteen pendent state claims alleged in McCarthy’s amended complaint, only the claim for malicious prosecution was argued and briefed by the parties. The remaining thirteen claims were neither briefed by the parties nor argued orally to the district court. The district court did not specifically refer to these claims in either its decision from the bench or in the judgment. “When federal claims are dismissed before trial, the question whether pendent state claims should still be entertained is within the sound discretion of the district court.’’ Schultz v. Sundberg, 759 F.2d 714, 718 (9th Cir.1985) (per curiam). Dismissal of federal claims before trial generally dictates dismissal of the pendent state claims. Id.; accord Gaff v. Fed. Deposit Ins. Corp., 814 F.2d 311, 319 (6th Cir.1987); Baltimore Orioles v. Major League Baseball Players Assoc., 805 F.2d 663, 682 (7th Cir.1986), cert. denied, — U.S.-, 107 S.Ct. 1593 , 94 L.Ed.2d 782 (1987). The district court may retain jurisdiction to decide state claims if the record shows that the court and litigants have expended considerable time on the pendent claims before the claims were dismissed. Aydin Corp. v. Loral Corp., 718 F.2d 897, 904 (9th Cir.1983); see also Arizona v. Cook Paint & Varnish Co., 541 F.2d 226, 227-28 (9th Cir.1976) (not an abuse of discretion to refuse to vacate judgment on claims which had already been decided on the merits), cert. denied, 430 U.S. 915 , 97 S.Ct. 1327 , 51 L.Ed.2d 593 (1977). In the case before us it was within the district court’s discretion to retain jurisdiction over the malicious prosecution claim. That claim had been briefed by the parties and considered by the district court. I can only conclude, however, that the court abused its discretion in dismissing with prejudice the thirteen remaining pendent state claims. The district court had ex *1319 pended no effort in considering these claims. They were not contained in the original complaint, but only in the amended complaint filed the same day the dismissal was granted. The majority’s assumption that the propriety of the pendent state claims turns on questions about the federal indictment is simply premature. The claims were never addressed. I would remand to the district court with instructions to dismiss all the pendent state claims, except the claim for malicious prosecution, without prejudice. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8953067. Public record. Not legal advice.