# Record and brief — Carnegie-Mellon Univ. v. Cohill > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_1140%3A0 ## Record - **Collection:** Supreme Court brief - **Document type:** Record and brief - **Published:** January 1, 1988 - **Citation:** 484 U.S. 343 ## Text NOe B671U21"°CFX Title: Carnegie=-Melton University, et al., Petitioners Status: GRANTED Ve Maurice B. Cohills Jre, Judges United States District Court for the western District of Docketed: Pennsylviar et al. Jecenber 234 1986 Court: United States Court of Appeals for the Third Circuit Counsel for petitioner: DeForest III-walter P. Counsel yor respondent: Solicitor General, OpsitnicksAllan Entry Date Note Proceedings and Orders 1 Dec é3 4+ S 44D. for writ of 7iprerers filed. e ¢ dad : a a é Jane YS? KX Briet of resoondent w am arrie Boyle in opposition EDITOR'S NOTE tiles. _ : — — DY 5 Jan 28 1987 DISTRIBUTED. Fedruary 20, 1987 > aak Sak ae eee =? fat tee a 4 Fed 17 1987 K Reoly orief of petitioners Carnegie-Mellon Univer et al. ’ ; : : +: ' tiled. “meme 4 2 mr TAINE CHE BETTER COPY CAN BE OBTAINED, A NEW FICHE 5 Feo 23 1987 Petition GRANTED. WILL BE ISSUED, RRRRERRER TERRE REREEREEEERERERERRREERRE REAR ERE EERE eee ce) Apr 8 1987 JOINt apdencix filed. 7 Aor 8 1987 Sriet of petitioners Carnegie=Mellon Univers et al. filed. y Aor 23 1987 Order extending time to file brief of respondent on the merits until June 22, 1987. 1VU May 7 1987 Record filed. 17 May 7 1987 Certified copy of appendix, briefs and partial proceedings received. 12 Jun 22 1987 Briet of respondent william & Carrie Boyle filed. 15 Jun 22 1987 Brie? amicus curiae of California, et al. filed. 14 Jun 22 1987 Sriet amicus curiae of Department Of Water and Power filed. 15 Jun 29 1987 Record filed. 16 Jul 2 1987 CIRCULATED. 1¢ Aug 31 1987 SET FOR ARGUMENT. Tuesdays November 107 1987. (3re case). 18 Oct 29 1987 XK Reply oriet of petitioners Carnegie=Mellon Univer et ai. tiled. ly Nov 10 1987 ARGUED. PETITION FOR WRIT OF CERTIORARI 86-1021)[, mrs er ts DEC 23 1986 In the CLERK Supreme Court of the Umeed Seates October Term, 1986 CARNEGIE-MELLON UNIVERSITY and JOHN KORDESICH, Petitioners, Vv. HONORABLE MAURICE B. COHILL, JR.., United States District Judge, Nominal Respondent, and WILLIAM BOYLE and CARRIE BOYLE, Respondents. Petition For a Writ of Certiorari To the United States Court of Appeals For the Third Circuit *Wacter P. DeForest III W. THomMas McGouGu, Jr. Mark A. FONTANA REED SMITH SHAW & McCLAY Mellon Square 435 Sixth Avenue Pittsburgh, Pennsylvania 15219 (412) 288-3383 *Counsel of Record Counsel for Petitioners for Petitioners Carnegie-Mellon University and John Kordesich i QUESTION PRESENTED Whether a district court has authority to remand a properly removed case to state court for a reason not set forth in 28 U.S.C. § 1447(c)--i.e., elimination, by amend- ment of the complaint, of the federal claim that had formed the basis for removal--a question as to which the circuits are split and as to which the appellate court below. sitting in banc, was evenly divided. TABLE OF CONTENTS Page oh oye 8 | ee i TABLE OF AUTHORITIES............... stoneus TT PEED sccntovececicesssusteweeueet 2 PEE vecnccdvtcencvabéccsacuhbaceses 3 PPPOE. cccocsesccoceatéeseenasns 3 SEATERGEINE OF Tite CAGE... ww ccc cccees: TTT Ee REASONS FOR GRANTING THE WRIT.......... 10 I. The Third Circuit's refusal to issue a writ of mandamus, when the district court admit- tedly remanded a case for a reason not pro- vided in 28 U.S.C. § 1447(c), conflicts with decisions of other courts of appeals on this BD cocncvencadéuncheéeudunessounesnenee 10 Il. Whether a district court has the power to remand a properly removed action for rea- sons other than specified in the controlling Statute 1s an important question of federal law that should be settled by this Court ..... 16 OP ee 19 PEED ov cvcacosenssecdaneaceusnne la TABLE OF AUTHORITIES CASES Page Boelens v. Redman Homes, Inc., 759 F.2d $04 (Sth Cir. 1985).................. 13 Cook v. Weber, 698 F.2d 907 (7th Cir. 1983)............... 12. 14 Fox v. Custis, FE Cee I Gs PU ng 6 vk ccc tevccccens 11 In re Greyhound Lines, Inc., 598 F.2d 883 (Sth Cir. 1979)............... 12. 13 Hofbauer v. Northwestern Nat. Bank of Rochester, Fao F280 CEP? Gee Cie. 1963S)... . cc ccc ecneee 11 IMFC Professional Services, Inc. v. Latin American Home Health, Inc., ee GE : . 13 Naylor v. Case & McGrath, Inc., SE 11 In re Romulus Community Schools, 729 F.2d 431 (6th Cir. 1984)............... 11.14 Ryan v. State Board of Elections, 66) F.28 0450 (ree Cer. 1981)... .....2...26... 12 Shamrock Oil & Gas C orp. v. Sheets, ee ow cee sieecees 14, 16 Sheet Metal Workers International Association y. Seay, 693 F.2d 1000 (10th Cir. 1982) modified on other grounds on reh’g, 696 F.2d 780 (10th Cir. 1983)................. 13 In re Shell Oil Co.., 631 F.2d 1156 (Sth Cir. 1980)................. 13 IV Page St. Paul Mercury Indemnity Co. v. Red Cab Co., Ee Eye 17 Thermitron Products, Inc. v. Hermansdorfer, ee SD ncaa gkisdueensiewewe passim United Mine Workers y. Gibbs, PE ee 9. 11, 13. 14, 15 STATUTES Judicial Code CS EE ee ee ee ae 5 re ee 2, 3, 8, 14 ee ee passim a ene 3 Age Discrimination In Employment Act abn na wane e663 edse0n in OTHER AUTHORITIES 1985 Annual Report of the Director of the Administrative Office of the United NID LEE OE 18 eu dbo nb bead eee bnas 14 ee ee ehaeenne tne eey 14 pee No gn the Supreme Court of the Linited States October Term, 1986 CARNEGIE-MELLON UNIVERSITY and JOHN KORDESICH, Petitioners, v. HONORABLE MAURICE B. COHILL, JR., United States District Judge, Nominal Respondent, and WILLIAM BOYLE and CARRIE BOYLE, Respondents. Petition For a Writ of Certiorari To the United States Court of Appeals For the Third Circuit Carnegie-Mellon University (“C-MU”’) and John Kordesich, Petitioners,' respectfully pray that a writ of cer- tiorari issue to review the Order of the United States Court of Appeals for the Third Circuit entered in the above- entitled case on November 24, 1986. In that Order, the Third Circuit, sitting in banc upon rehearing, divided five to five and, accordingly, denied a petition for a writ of 'C-MU has no parent company, affiliates, or subsidiaries, other than wholly-owned subsidiaries. » mandamus concerning the October 10, 1985 Opinion and Order of the United States District Court for the Western District of Pennsy!vania which had permitted Respon- dents to voluntarily amend their complaint to delete the federal cause of action for age discrimination and directed the remand to state court of this case, although the district court found that this case had been removed properly and with jurisdiction under 28 U.S.C. § 1441(b). OPINIONS BELOW The November 24, 1986 Order of the Third Circuit, sitting in banc, which denied the petition for the writ of mandamus because the Third Circuit was equally divided, is not officially reported and appears as Appendix A (““App. A”) hereto. The August 29, 1986 Opinion of a panel of the Third Circuit, which had granted the petition for the writ of mandamus, is not officially reported but is unofficially reported at 41 FEP 1046 and appears as Appendix B (“App. B’’) hereto. The accompanying August 29, 1986 Order granting the petition for writ of mandamus and the August 29, 1986 writ of mandamus, itself, are not officially reported and appear as Appendix C (“App. C”) and Appendix D (“App. D’’) respectively. The September 24, 1986 Order of the Third Circuit, granting Respondents’ petition for rehearing in banc and vacating the panel opin- ion and the writ of mandamus, is not officially reported but is unofficially reported at 41 FEP 1888 and appears as Appendix E (“App. E’’) hereto. The October 10, 1985 Opinion and Order of the district court is not officially reported and appears as Appendix F (App. F’’) hereto. 3 JURISDICTION The Order of the Third Circuit, sitting in banc, upon rehearing, was entered on November 24, 1986. The juris- diction of this Court is invoked under 28 U.S.C. § 1254(1). STATUTES INVOLVED The statutes involved are 28 U.S.C. § 1441 and 28 U.S.C. § 1447. 28 U.S.C. § 1441 provides: § 1441. Actions removable generally (a) Except as otherwise expressly provided by Act of Congress, 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 defen- dant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending. (b) Any civil action of which the district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties or laws of the United States shall be removable without regard to the citizenship or residence of the parties. Any other such action shall be removable only if none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought. (c) Whenever a separate and independent claim or cause of action, which would be removabie if sued upon alone, 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 not otherwise within its original jurisdiction. (d) Any civil action brought in a State court against a foreign state as defined in section 1603(a) of 4 this title may be removed by the foreign state to the district court of the United States for the district and division embracing the place where such action is pending. Upon removal the action shall be tried by the court without jury. Where removal is based upon this subsection, the time limitations of section 1446(b) of this chapter may be enlarged at any time for cause shown. (e) The court to which such civil action is removed is not precluded from hearing and determin- ing any claim in such civil action because the State court from which such civil action is removed did not have jurisdiction over that claim. 28 U.S.C. § 1447 provides: (a) In any case removed from a State court, the district court may issue all necessary orders and pro- cess to bring before it all proper parties whether served by process issued by the State court or otherwise. (b) It may require the petitioner to file with its clerk copies of all records and proceedings in such State court or may cause the same to be brought before it by writ of certiorari issued to such State court. (c) If at any time before final judgment it appears that the case was removed improvidently and without jurisdiction, the district court shall remand the case, and may order the payment of just costs. A certified copy of the order of remand shall be mailed by its clerk to the clerk of the State court. The State court may thereupon proceed with such case. (d) An order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise, except that an order remanding a Oo 5 case to the State court from which it was removed pursuant to section 1443 of this title shall be review- able by appeal or otherwise. STATEMENT OF THE CASE William Boyle and Carrie Boyle. the plaintiffs below (collectively. the “Boyles™), commenced this action by fil- ing a four count complaint against C-MU and Kordesich in the Court of Common Pleas of Allegheny County, Penn- sylvania, on September 7, 1984. The complaint alleged various causes of action includ- ing violation of federal and state age discrimination laws. wrongful discharge in tort, wrongful discharge as breach of contract, intentional infliction of emotional distress, defa- mation, misrepresentation, and tortious interference with a contractual and/or business relationship. The claims set forth in the complaint arose out of William Boyle’s termi- nation from employment with C-MU. On September 21, 1984. C-MU and Kordesich removed the case to the United States District Court for the Western District of Pennsylvania. Ihe bases for removal were the claims in paragraphs |3 and 14 of the complaint which alleged that William Boyle’s termination by C-MU was based upon his age, 56, and “was therefore illegal and improper in violation of the laws of the United States of America and The Commonwealth of Pennsylva- nia” and that Boyle was also the victim of discrimination in not being rehired. Such claims thereby averred a cause of action subject to federal jurisdiction pursuant to 29 U.S.C. § 626(c\(1) of the federal Age Discrimination In Employment Act and 28 U.S.C. § 1331. The remova! of the case was uncontested. 6 Following its removal, this case was actively litigated. An answer was filed. C-MU and Kordesich took the depo- sitions of the Boyles. ‘They also served and obtained responses to extensive requests for production of docu- ments, deposed William Boyle’s physician. and reviewed his medical records. C-MU and Kordesich responded to the Boyles’ extensive document production requests and permitted them to review a significant amount of C-MU documents pursuant to those requests. In the course of the pretrial proceedings, the Boyles had sought and obtained several extensions of the discov- ery period and the dates for filing pretrial narratives. The district court had originally set March 15, 1985, as the date of close of discovery, with April 5 and 26, 1985, as the dates for filing of the parties’ respective pretrial narrative statements. On March 8, 1985, pursuant to the Boyles’ motion, the district court granted an extension of the dis- covery period until May 14, 1985, with a corresponding extension in the dates of filing of pretrial narratives.? On April 15, 1985, the Boyles filed a motion for leave to amend the complaint and a motion to remand with the district court. The Boyles sought leave to amend their complaint so that they could delete, inter alia, the federal age discrimination cause of action. In their motion to remand, the Boyles argued that the case was improvidently removed within the meaning of 28 U.S.C. § 1447(c) or, alternatively, that if they were permitted to amend the - complaint and delete the federal age discrimination claim, the district court should exercise its discretion and remand the case. C-MU and Kordesich opposed both motions. In “These dates were again extended by the district court pursuant to a second motion for enlargement of time by the Boyles. while their motion to remand and motion to amend the complaint were pending. , regard to the first motion, C-MU and Kordesich argued, inter alia, that any removal of such claims from this litiga- tion should only be through a dismissal with prejudice (rather than mere voluntary withdrawal) so as to bar any later reinstitution of such claims by the Boyles. C-MU and Kordesich opposed a remand to the state court because it was not authorized under the controlling statute and because they objected to the Boyles’ manipulation of the forum in which the case would be decided to the expense, delay and detriment of C-MU, Kordesich and the judicial system. On October 10, 1985, the district court issued its Opinion and Order granting the Boyles’ motion to amend the complaint, as well as their motion to remand the case to state court. App. F. Although the district court held that the case had not been removed improvidently and without jurisdiction, it nonetheless remanded the case for discre- tionary reasons not specified in the controlling statute. App. F. The district court noted that, by granting the Boyles’ amendment, the case was reduced to one involving only state law claims. App. F, at 32a. The district court held that even though the state and federal claims had arisen out of “the same nucleus of operative facts,” it would decline to exercise its jurisdiction over the state claims and would remand the case back to the state court. App. F, at 3la-32a. The district court acknowledged that the “strong implication” of this Court's decision in Thermtron Prod- ucts, Inc. vy. Hermansdorfer, 423 U.S. 336 (1976). was that district courts are limited by reasons provided in the gov- erning statutes in remanding removed cases. App. F. at 33a. Nevertheless, the district court noted that there was a split among the various courts of appeals on this issue and 8 elected to follow those courts of appeals which had permit- ted the remand of cases for discretionary reasons. App. F, at 33a-34a. The district court declined to certify the case for appeal, since it noted that the matter was reviewable under 7hermtron by means of a petition for writ of manda- mus. On November 5, 1985, C-MU and Kordesich filed a petition for writ of mandamus with the court of appeals. By Order dated December 20, 1985 (Appendix G), the court of appeals directed the Boyles to file an answer to the petition for writ of mandamus within twenty days, which they did. By Order dated January 27, 1986, the court of appeals ordered that the case be referred to a merits panel, stating that “[t}his case presents a novel and important question of federal jurisdiction.” Appendix H. By Opinion and Order dated August 29, 1986, the merits panel granted the petition for writ of mandamus and directed the district court to vacate its remand order. Appendices B, C and D. The majority opinion of the mer- its panel held that there were two statutory provisions authorizing remand after removal, neither of which per- mitted remand here. App. B, p. 10a-1 la. The panel major- ity held that 28 U.S.C. § 1441(c) did not provide a basis for remand because the state law claims were not “separate and independent” claims which could be remanded under 28 U.S.C. § 1441(c). The panel majority concurred with the district court’s finding that the federal and state claims all arose out of a common nucleus of operative fact, i.e., the circumstances of William Boyle’s termination. App. B, at 1 la-12a. The panel majority also held that the provisions of 28 U.S.C. § 1447(c) did not authorize remand because the case had not been removed improvidently and without jurisdiction. App. B, at |2a-13a. The panel majority, after 9 noting the split among the circuit courts, held that this Court’s decision in Thermiron was controlling and that remands may not be ordered on grounds not authorized by statute. App. B, at 13a-15a. The merits panel dissent did not dispute the absence of any statutory basis for the remand. Rather, the merits pane! dissent held that, because the state claims could be dismissed without prejudice under this Court’s decision in United Mine Workers v. Gibbs, 383 U.S. 715 (1966), a district court should be permitted to remand them to state court. App. B, at 18a. The merits panel dissent relied upon those courts of appeals that had so held and stated that it believed that granting the district courts a power to remand was the best way to protect plaintiffs against statute of limitations problems. App. B, at 2la-23a. The dissent stated that it believed that Congress and this Court would have pre- ferred this result if they had addressed this issue. App. B, at 19a-20a. The writ of mandamus was issued on August 29, 1986. App. D. By Order dated September 24, 1986, the court of appeals granted the Boyles’ petition for rehearing in banc and. accordingly, vacated the panel opinion of August 29, 1986, and the writ of mandamus. App. E. Argument on rehearing was held on November | 3, 1986. By Order dated November 24, 1986. the court of appeals. being equally divided, denied the petition for writ of mandamus. App. A. 10 REASONS FOR GRANTING THE WRIT 1. The Third Circuit's refusal to issue a writ of manda- mus, when the district court admittedly remanded a case for a reason not provided in 28 U.S.C. § 1447(c), conflicts with decisions of other courts of appeals on this issue. The issue of whether a district court may remand a properly removed case for reasons not authorized by 28 U.S.C. § 1447(c) has been the subject of considerable judi- cial interpretation. In Thermtron, 423 U.S. at 342, this Court held that: “Section 1446 provides the procedure for removal: and a case removed under that section may be remanded only in accordance with § 1447...” (footnotes omitted).’ In the present case, the district court acknowl- edged that remand was not authorized by the provisions of § 1447. App. F, at 3la. The reason stated by the district court for not following the Thermtron decision was that, while 7hermtron involved a removal on the basis of diver- sity of citizenship. the present case was removed on the basis of a federal claim and, thus, involved pendent juris- diction over the state law claims. While Petitioners do not agree with this purported distinction of Thermtron, the various courts of appeals have divided over the applicabil- ity of Thermtron beyond the specific factual situation involved there. ‘In Thermtron. the district court had remanded a properly removed case because it determined that, due to a congested docket, an adjudica- tion of the merits of the case would be expedited by remand. 423 US. at 339. The Sixth Circuit demed a petition for a writ of mandamus. /d. at 341-42. This Court granted a petition for a writ of certiorari and reversed the Sixth Circuit. /d. at 342. The Court of Appeals for the Sixth Circuit has inter- preted Thermtron as being prompted by the “extreme cir- cumstances of that case.” Jn re Romulus Community Schools, 729 F.2d 431, 436 (6th Cir. 1984). In this decision, the Sixth Circuit stated: “If Thermtron was intended to eliminate all discretionary, nonstatutory grounds for remands, the decision has not uniformly had that effect. Indeed, the circuits are severely split over the question.” 729 F.2d at 438. Notwithstanding the above-quoted lan- guage of this Court in the 7hermiron decision, the Sixth Circuit held that district courts do have the power to remand cases where the plaintiff voluntarily amends the complaint to delete the federal claim. 729 F.2d at 440. The Sixth Circuit, after noting that United Mine Workers vy. Gibbs, 383 U.S. 715 (1966), permits dismissal of state claims in certain circumstances, held that the district courts have the discretion to remand state claims, where deemed appropriate, even if the statutory requisites of 28 U.S.C. § 1447(c) have not been met. 729 F.2d at 439-40. The Sixth Circuit apparently concluded that if the district courts have the power to dismiss the state claims under Gibbs. they could remand them instead. 729 F.2d at 439- 40. We discuss the flaws in this theory infra at 13-15. The Fourth, Eighth and Second Circuits have also held that remands may be made for reasons not set forth in 28 U.S.C. § 1447(c). In Fox v. Custis, 712 F.2d 84, 89-90 (4th Cir. 1983) the Fourth Circuit held that the state claims should be remanded after the federal claim was dismissed (there involuntarily). Hofbauer v. Northwestern Nat. Bank of Rochester, 700 F.2d 1197, 1201 (8th Cir. 1983) was a similar holding. Naylor v. Case & McGrath, Inc., 585 F.2d 557, 561-62 (2d Cir. 1978) held that state claims should be remanded even after a voluntary dismissal of federal 12 claims. It is startling that none of these three decisions even discussed Thermtron. On the other side of the conflict, the Seventh, Fifth and Tenth Circuits have held that remands are not proper unless made for reasons set forth in 28 U.S.C. § 1447(c). In Cook v. Weber, 698 F.2d 907, 909 (7th Cir. 1983), the Seventh Circuit held that remand of the state law claims is not permitted, notwithstanding even an involuntary dis- missal of the federal claim that provided the basis for the removal. The Seventh Circuit stated: Removal jurisdiction is based entirely on statutes, which are to be strictly construed in keeping with con- gressional intent to limit the right of removal ov. of concern for state courts’ independent jurisdiction. Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-09, 61 S.Ct. 868, 872, 85 L.Ed. 1214 (1941); Lib- hart v. Santa Monica Dairy Co., 592 F.2d 1062. 1064 (9th Cir. 1979). In keeping with and in effectuation of congressional policy as to removal we hold that the basis for remanding a removed case must be grounded on federal statutory authority. 698 F.2d at 909. In Rvan v. State Board of Elections. 661 F.2d 1130, 1133-34 (7th Cir. 1981), the Seventh Circuit held that remands are not permitted for discretionary rea- sons, such as abstention, which are not authorized by 28 U.S.C. § 1447(c). In the case of Jn re Grevhound Lines, Inc., 598 F.2d 883, 884-85 (Sth Cir. 1979), the Fifth Circuit issued a writ of mandamus precluding a remand by the district court in a Situation virtually identical to the present case. Le., where the plaintiff had voluntarily dismissed the federal 13 claim and contemporaneously requested and obtained a remand of the state claims. In the case of Jn re Shell Oil Co., 631 F.2d 1156, 1158 (Sth Cir. 1980), a writ of manda- mus was issued by the Fifth Circuit where a suit had been remanded for lack of opposition to the remand, citing Thermtron as permitting remands only in accordance with 28 U.S.C. § 1447.4 In Sheet Metal Workers International Association v. Seay, 693 F.2d 1000, 1002-06 (10th Cir. 1982), modified on other grounds on reh’g, 696 F.2d 780 (10th Cir. 1983), the Tenth Circuit also held that remands could not be granted for a reason not specified in 28 U.S.C. § 1447(c) (there the district court had remanded because the state court, which could provide more complete relief, was the more equita- ble forum). Thus, the Third Circuit’s refusal to issue a writ of mandamus here, where the district court candidly admit- ted (App. F at 3la-34a) that the remand was based upon a reason not provided for in 28 U.S.C. § 1447(c). directly conflicts with the decisions of the Seventh, Fifth and Tenth Circuits. The merits panel dissent in this case concluded that “specific statutory authority is not necessary [to remand] and that this matter is governed by United Mine Workers ‘In IMFC Professional Services, Inc. vy. Latin American Home Health, Inc., 676 F.2d 152. 159-60 (Sth Cir. 1982). a panel of the Fifth Circuit held that there was discretion to decline jurisdiction over claims against non-federal defendants once all claims against a federal defen- dant (which had provided the basis for removal) were dismissed. finding that the dismissal of the federal defendant made the case one “removed improvidently and without jurisdiction” and thus subject to remand under 28 U.S.C. § 1447(c). In a subsequent opinion, the Fifth Circuit indicated that Jn re Greyhound Lines, Inc., is still good law. Boelens v. Redman Homes, Inc., 759 F.2d 504, 507 n.2 (Sth Cir. 1985). 14 v. Gibbs, 383 U.S. 715 (1964) rather than Thermtron...” App. B, at 18a. Under the Third Circuit's Orders subse- quently vacating the panel majority opinion and denying the petition for a writ of mandamus, the district court 1s, in fact, being permitted to remand this case even though there is no statutory authority permitting such action. The Sixth Circuit’s decision in Jn re Romulus Community Schools, supra, 729 F.2d at 436, also relied in part upon Gibbs. However, there are a number of reasons why this Court’s decision in Gibbs does not authorize remands absent statutory authority and does not undercut the clear import of Thermtron, which was decided ten years after Gibbs. First, it should be noted that Gibbs involved a situa- tion where there had been an involuntary dismissal of the federal claims, not a tactical dismissal by the plaintiff as we have here. In fact, Gibbs reflects an abhorrence of the notion that a plaintiff could manipulate the forum.‘ Sec- ond, Gibbs did not involve a removed case. Removal juris- diction is based entirely upon statutes which are to be strictly construed. Cook, 698 F.2d at 909, citing Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-09 (1941). Third, Gibbs involved the dismissal of an action which is a power traditionally available to the district courts. F.g., Fed. R. Civ. P. 12(b) and (h) and 41. There is no compara- ble traditional power in the federal courts to transfer or remand cases to the state courts. Fourth, remand of an action is not the functional equivalent of a dismissal. There are crucial distinctions between a remand and a ‘This Court in Gibbs noted that a plaintiff should not be permitted to “impose” upon the court a choice of forum by the nature of the pleadings (there the manipulation hypothesized was an attempt by a plaintiff to impose federal court jurisdiction by the shaping of the plead- ings). 383 U.S. at 726-27. 15 dismissal, affecting, inter alia, the application of the statute of limitations, the priority of the case upon its return to state court, and even the right to and scope of appellate review of the district court’s order. Cook, 698 F.2d at 908. Thus, this Court’s decision in Gibbs did not and could not create a power to remand a removed action, which is Statutory in nature. In this regard, it should be noted that Congress could have easily provided, through statutory language, a power to remand in specific situations, such as where the federal claim was dismissed, or even could have provided a general discretionary power to remand. In fact, Congress chose to provide language in 28 U.S.C. § 1441(c) allowing remands at the district court’s discretion in situa- tions involving state claims separate and independent from the federal claims. However, no such discretionary language was provided in 28 U.S.C. § 1447(c). The Con- gressional judgment should be respected. A district court should not be permitted to remand a case for reasons other than those specified in the controlling statute. 7hermtron, 423 U.S. at 342. The eight circuits discussed above, which have specifi- cally considered this issue, are badly divided. Four have held that the district courts can remand for reasons not specified in the controlling statute. Three circuits have held that such remands are improper. The Third Circuit has, itself, divided over this issue. Clearly, there should be a single answer to this question. Only this Court can resolve this direct conflict. 16 Il. Whether a district court has the power to remand a properly removed action for reasons other than speci- fied in the controlling statute is an important question of federal law that should be settled by this Court. The question presented for review concerns the very jurisdiction of the federal courts and their powers. It raises the issue of whether the federal district courts have some general power, not dependent upon statute, to issue orders transferring cases to state courts, and whether that power exists even in removed cases where their jurisdiction is » specially controlled by statute.® The Third Circuit explicitly recognized that this case presented an “important question of federal jurisdiction.” App. H. Unfortunately, the Third Circuit divided five to five and was unable to resolve the question. Thus, litigants and district courts in the Third Circuit are currently in a State of uncertainty as to a litigant’s rights and a district court’s powers in this area. Moreover, the existence of an option in the district court to remand a case for non-statutory reasons will not deter and may well cause the inclusion of carelessly consid- ered federal claims in state court complaints. Plaintiffs will realize that, if a case is removed to federal court, they can drop the federal claim and seek a remand, with a high level of confidence that it will be granted, because, after deletion of the federal claim, the state law claims will inevitably predominate, as was found here. Thus, the approach taken by the courts in the present case does not discourage the inclusion of poorly considered federal claims or the waste of resources of both litigants and the courts through need- less removal and remand proceedings. ‘Shamrock Oil & Gas Corp., 313 U.S. at 108-09. 17 The potential for jockeying and manipulation of forums by amendment of the complaint—which arises from a rule that permits remands for reasons not provided in the controlling statute—is also an important considera- tion that supports the review and reversal of the lower courts’ orders in this case. This Court has previously recog- nized the importance of precluding the manipulation of the forum. In St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283 (1938), which concerned the predecessor to 28 U.S.C. § 1447, the Seventh Circuit had held that a district court should have remanded to state court a prop- erly removed diversity case after the plaintiff filed a second amended complaint with an exhibit indicating that the plaintiffs damages were less than the requisite jurisdic- tional amount. 303 U.S. at 285. This Court, in reversing the Seventh Circuit, held that: If the plaintiff could, no matter how bona fide his original claim in the state court, reduce the amount of his demand to defeat federal jurisdiction the defen- dant’s supposed statutory right of removal would be subject to the plaintiff's caprice. The claim, whether well or ill founded in fact, fixes the right of the defen- dant to remove, and the plaintiff ought not to be able to defeat that right and bring the cause back to the State court at his election. 303 U.S. at 294. In the present case, the Boyles filed a motion to amend their complaint and a motion to remand wherein they explicitly requested a remand on the basis that their federal claim would be deleted by the amend- ment. This is the type of manipulation of the forum that St. Paul Indemnity Co. deplores and proscribes. A district court’s power to remand cases for reasons not specified in 28 U.S.C. § 1447(c) is neither an isolated 18 nor a rarely occurring issue as established by the number of circuit court decisions on this issue cited hereinabove. This is understandable because a significant number of cases are removed to the federal district courts each year.’ Finally, the fact that a number of the courts of appeals have failed to heed the language of the Thermtron deci- sion, in our view, makes this an important matter. The lower courts and litigants obviously need further direction from this Court upon the question of a district court's powers to remand cases. "For the twelve-month period ended June 30, 1985, there were 17.439 cases filed in the federal district courts as removals from state courts. 1985 Annual Report of the Director of the Administrative Office of the United States Courts at 136. This constituted 6.4 percent of the cases filed that year. Jd. This percentage of new filings has remained relatively constant over the past ten years. /d. 19 CONCLUSION For the foregoing reasons, it is respectfully submitted that this petition for a writ of certiorari should be granted. Respectfully submitted, *Wacrer P. DeForest Ill W. THomas McGoucu, Jr. Mark A. FONTANA REED SMITH SHAW & McCLAY Mellon Square 435 Sixth Avenue Pittsburgh, Pennsylvania 15219 (412) 288-3383 Counsel for Petitioners Carnegie-Mellon University and John Kordesich December 23, 1986 *Counsel of Record for Petitioners APPENDIX A United States Court of Appeals For THe THirpd Circuit No. 85-3619 CARNEGIE-MELLON UNIVERSITY and JOHN KORDESICH, Petitioners VS. HONORABLE MAURICE B. COHILL., JR., United States District Judge, Nominal Respondent and WILLIAM BOYLE AND CARRIE BOYLE, Respondents (W.D. Pa. Civil No. 84-2285) Argued April 29, 1986 Before: SLOVITER and STAPLETON, Circuit Judges, and LONGOBARDI, District Judge.* Argued In Banc November 13, 1986 Before: ALDISERT, Chief Judge, and SEITZ, ADAMS, GIBBONS, WEIS, HIGGINBOTHAM, SLOVITER, BECKER, STAPLETON and MANSMANN, Circuit Judges. ORDER The court in banc being equally divided, it is ORDERED AND ADJUDGED that the petition for a writ of mandamus be and is hereby denied. *Honorable Joseph J. Longobardi, United States District Judge for the District of Delaware. sitting by designation. 2a Each side to pay its own costs. DATED: NOV 24, 1986 BY THE COURT, ALDISERT . Chief Judge 3a APPENDIX B United States Court of Appeals For THe Trirp Circuit No. 85-3619 CARNEGIE-MELLON UNIVERSITY and JOHN KORDESICH, Petitioners We HONORABLE MAURICE B. COHILL, JR.., United States District Judge. Nominal Respondent and WILLIAM BOYLE and CARRIE BOYLE, Respondents ON Petition FOR Writ OF MANDAMUS ORIGINAL PROCEEDING (Revarep to W.D. Civit No. 84-2285) Argued April 29, 1986 Before: SLOVITER and STAPLETON, Circuit Judges, and LONGOBARDI, District Judge* (Opinion filed August 29, 1986) *Hon. Joseph J. Longobardi, United States District Court for the District of Delaware, sitting by designation 4a Wacrer P. Di Forest (ARGUED) Mark A. Fontana Reed, Smith, Shaw & McClay Pittsburgh. PA 15219 Attorneys for Petitioners ALLAN J. Opsitnick (ARGUED) Hickton & Opsitnick Pittsburgh, PA 15219 Attorney for Respondents OPINION OF THE COURT SLOVITER, Circuit Judge. This petition for mandamus requires us to decide whether the district court has the power to remand to state court a properly removed action after the complaint has been amended to delete all federal claims. Facts and Procedural History The facts in this case are briefly stated. William and Carrie Boyle initiated this action in the Court of Common Pleas of Allegheny County, Pennsylvania, against Carnegie-Mellon University and John Kordesich, an employee of Carnegie-Mellon, complaining of the termina- tion of William Boyle's employment. The complaint alleges William Boyle was discharged because he refused to accept blame or guilt in connection with improper billings and certain thefts at the University. In the complaint, William Boyle alleged causes of action against Carnegie-Mellon for wrongful discharge in Sa tort, intentional infliction of emotional distress, defama- tion, misrepresentation, and breach of express and implied contracts. The complaint also alleges many of these same causes of action against Kordesich, who was William Boyle’s supervisor at Carnegie-Mellon. Carrie Boyle brought suit against Carnegie-Mellon and Kordesich for loss of consortium, loss of companionship, loss of her hus- band’s household services and “income expectancy”, and “loss of life’s pleasures.” In addition to the Boyles’ state law claims, Count I| of the complaint, titled “William S. Boyle vs. Carnegie Mellon University—In Trespass,” contains the following language: Said termination [of Boyle’s employment] was also based upon Boyle's age, 56, and was therefore illegal and improper in violation of the laws of the United States of America and the Commonwealth of Pennsylvania. App. at 7a. No other portion of the complaint elaborates on this claim or makes any further reference to federal law. and it appears the parties are not diverse. . Based on the reference to age discrimination, Carnegie-Mellon and Kordesich (hereafter referred to col- lectively as Carnegie-Mellon) removed the case on Septem- ber 21, 1984 to the federal District Court for the Western District of Pennsylvania. The Boyles did not contest removal or move to remand. On April 15, 1985, after a period of discovery, which was extended by the district court at the Boyles’ request. the Boyles moved to amend their complaint to delete the causes of action for age discrimination and defamation and the request for damages for loss of consortium. The 6a Boyles gave as the reason for the proposed amendment that “certain causes of action alleged... are not tenable and [they] feel that it would be highly unlikely that they would succeed.” App. at 70a-7la. In discovery. it was dis- closed that William Boyle had never filed any age discrimi- nation charge with a federal or state agency, a prerequisite for suit under the Age Discrimination in Employment Act. See 29 U.S.C. §§ 626(d), 63d). At the same time as the motion to amend, the Boyles filed a motion to remand the case to state court because it would no longer contain any federal causes of action. The district court granted the motion to amend the complaint without discussion, and Carnegie-Mellon has not chal- lenged this ruling. The court then ordered remand to the Pennsylvania state court. The court recognized that neither 28 U.S.C. § 1447(c) nor 28 U.S.C. § 1441(c), the two statu- tory provisions authorizing remand, were applicable in this case. It nonetheless held that because it had the discre- tion to dismiss an action from which all federal claims had been deleted, it also had the discretion to remand a case under like circumstances. Carnegie-Mellon appealed this decision and also filed a petition for mandamus against the district judge, Chief Judge Cohill, who 1s the nominal respondent here. Appeals from remand orders are barred with an exception not applicable here. 28 U.S.C. § 1447(d), and the appeal was accordingly dismissed. The issue of mandamus is now before us. 7a Il. Mandamus Jurisdiction We consider first whether mandamus is an available vehicle to challenge the remand. The Boyles argue that even if the district court committed error, it is not of the “magnitude” to justify issuance of a Writ of Mandamus. Mandamus is, of course, not to be used as a substitute for appeal, or to thwart the strong congressional policy against piecemeal appeals. Parr v. United States, 351 U.S. 513, 520-21 (1956). The writ, however, is “appropriately issued . . . when there is ‘usurpation of judicial power’ or a clear abuse of discretion.” Schlagenhauf v. Holder, 379 U.S. 104, 110 (1964) (quoting Bankers Life & Casualty Co. v. Holland, 346 U.S. 379, 383 (1953)). One of its principal uses is, as in this case, to confine federal courts to the proper exercise of their limited statutory jurisdiction. See, e.2., Hoffman v. Blaski, 363 U.S. 335 (1960). The Supreme Court has made clear that “[a]bsent stat- utory prohibitions, when a remand order is challenged by a petition for mandamus in an appellate court, ‘the power of the court to issue the mandamus would be undoubted.’ ” Thermtron Products, Inc. v. Hermansdorfer, 423 U.S. 336, 353 (1976) (quoting Jn re Pennsylvania Co., 137 U.S. 451, 453 (1890)). The Thermtron Court further stated that man- damus is available ““where the district court... has remanded [a case] on grounds not authorized by the removal statutes.” Thermtron, 423 U.S. at 353; accord Levy v. Weissman, 671 F.2d 766, 768-69 (3d Cir. 1982). This is precisely the situation presented in this case, and, therefore, mandamus is available to Carnegie-Mellon to challenge the remand order. 8a Ill. Discussion A. The District Court's Jurisdiction In deciding whether the district court had authority to remand this case to state court, we must first determine whether the district court had subject matter jurisdiction over the action at all in the first instance. All parties have treated the assertion in the Boyles’ complaint that William Boyle’s discharge violated federal age discrimination laws as an attempt to state a claim under the federal Age Dis- crimination in Employment Act, 29 U.S.C. §§ 621-34 (1982) (ADEA). Thus, removal here was pursuant to 28 U.S.C. § 1441(b), which allows for removal of civil actions over which “the district courts have original jurisdiction founded on a claim or right under the Constitution, trea- ties or laws of the United States.” It has been an idiosyncrasy of federal jurisdiction that even if an action could have been filed originally in a federal court, that court does not have jurisdiction over a removed case if the state court from which it was removed did not also have jurisdiction. See Lambert Run Coal Co. v. Baltimore & Ohio Railroad Co., 258 U.S. 377, 382 (1922); 1A J. Moore & B. Ringle, Moore's Federal Practice § 0.157[3.-1] at 55-56 (2d ed. 1986). This rule stems from the derivative nature of removal jurisdiction. Recently, Congress has sensibly changed this anoma- lous situation by providing the following addition to 28 U.S.C. § 1441: (e) The court to which such civil action is removed is not precluded from hearing and determin- ing any claim in such civil action because the State 9a court from which such civil action is removed did not have jurisdiction over that claim. Judicial Improvements Act of 1985, Pub. L. No. 99-336 § 3, 100 Stat. 633 (1986). This amendment applies only to actions filed in state court after the date of its enactment, and thus in this case we must still determine if jurisdiction under the ADEA is exclusive to federal courts. If so, the Pennsylvania court did not have jurisdiction over this claim, and the district court could not have derived juris- diction on removal. The district court analogized jurisdiction under the ADEA to jurisdiction under Title VII of the Civil Rights Act of 1964, and concluded that although the courts are divided over whether jurisdiction under Title VII was exclusive to federal courts, the better view was that Title VII jurisdiction was concurrent in state and federal courts. We need not decide if the Title VII analysis is correct because the question is more easily resolved by reference to the language of the ADEA. The ADEA provides that any person may bring an action for legal or equitable relief “in any court of competent jurisdiction.”’ 29 U.S.C. § 626(c)(1). In addition, the provision of the Fair Labor Standards Act, 29 U.S.C. § 216(b), which provides that an action may be maintained “in any Federal or State court of competent jurisdiction”! is incorporated into the ADEA. 29 U.S.C. § 626(b). These provisions signify that Congress intended both State and federal courts to have jurisdiction over suits brought under the ADEA. The statutory language is clear and nothing in the legislative history is to the contrary. ' We note that by contrast, Title VII provides oniy that “{ejach United States District Court... shall have jurisdiction of actions brought under™ the Act, 42 U.S.C. § 2000e-5(f)(3). 10a This conclusion is in accord with the few federal cases we have found that have considered this question. See Bald- win v. Sears, Roebuck & Co., 667 F.2d 458, 460-61 (Sth Cir. 1982); Jacobi v. High Point Label, Inc., 442 F. Supp. 518, 519-20 (M.D.N.C. 1977). We hold, therefore, that because the Pennsylvania court had jurisdiction over the ADEA claim, the Boyles’ action was properly removed from state to federal court. B. Propriety of Remand Once the district court granted the Boyles’ motion to amend their complaint to remove the ADEA claim, only state law claims remained. The district court decided that although these claims arose out of “the same nucleus of operative facts” as the federal claim, this was not an appro- priate case to exercise pendent jurisdiction pursuant to United Mine Workers of America v. Gibbs, 383 U.S. 715, 725-27 (1966). This would ordinarily have entailed dismis- sal of the action without prejudice to the Boyles’ right to refile their claim in state court. /d. Here, because the case originally had been removed from state court, the district court decided to remand. The court acknowledged that no statute authorized the remand and that the Supreme Court's decision in Thermtron Prod- ucts, Inc. v. Hermansdorfer, 423 U.S. 336 (1976), seemed, in fact, to foreclose it, but it concluded that Thermtron was distinguishable. Carnegie-Mellon argues that Thermtron and this court’s decision in Levy v. Weissman, 671 F.2d 766 (3d Cir. 1982), preclude a district court from remand- ing on the basis of grounds not specified in the controlling Statute. There are two statutory provisions authorizing remand after removal. The district court held that neither lla authorized remand in this case, and we agree. The first, 28 U.S.C. § 1441(c), gives district courts discretion to remand “separate and independent” nonremovable claims or causes of action when those claims are joined with a removable claim.’ The district court correctly found that Boyles’ claims all arose out of a common nucleus of opera- tive fact and thus that the claims in this case were not “separate and independent” for purposes of 28 U.S.C. § 1441(c). This conclusion follows from the leading Supreme Court decision interpreting this provision, Amer- ican Fire & Casualty Co. vy. Finn, 341 U.S. 6 (1951). The Court held that, where there is a single wrong to plaintiff, for which relief is sought, arising from an interlocked series of transactions, there is no separate and independent claim or cause of action under § 1441(c). Id. at 14. Thus, §& 1441(c), as interpreted in Finn, is intended to apply to situations where the various claims in a single complaint arise from different factual bases. The application of the Finn rule has caused some diffi- culty, see 14A C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure § 3724 at 366 (2d ed. 1985), but a straightforward application of the rule demonstrates that § 1441(c) does not provide a basis for remand in this case. All the Boyles’ claims arise from William Boyle’s termina- tion by Carnegie-Mellon. This is indisputably a “single 728 U.S.C. § 1441(c) provides in full: (c) Whenever a separate and independent claim or cause of action, which would be removable if sued upon alone, 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 not otherwise within its original jurisdiction. 12a wrong”, and, therefore, § 1441(c) does not provide a basis to remand. The second provision, 28 U.S.C. § 1447(c), requires remand if the district court finds “that the case was removed improvidently and without jurisdiction.””’ Although the terms “improvidently” and “without juris- diction” are joined conjunctively, many decisions treat them as independent grounds for remand. See, e.g., Ryan v. State Board of Elections of State of Illinois, 661 F.2d 1130, 1133 (7th Cir. 1981). “Improvidently” generally refers to failure of the removing party to satisfy a statutory, nonjurisdictional requirement for removal, such as posting of a bond or removing within 30 days of the service of the initial pleading. See, e.g., In re Merrimack Mutual Fire Insurance Co., 587 F.2d 642, 645-47 & nn. 3 & 8 (Sth Cir. 1978). This term in the statute does not vest the district court with discretion to remand a properly removed case. See IMFC Professional Services of Florida, Inc. v. Latin American Home Health, Inc., 676 F.2d 152, 159 n.14 (Sth Cir. 1982). Similarly, the term “without jurisdiction” clearly refers to situations in which the district court is lacking jurisdiction over the removed case. Neither of these provisions is applicable in this case. The removal of the Boyles’ action was not legally defective in any way that the parties have identified or that we have been able to discern, and there are no discernible jurisdic- tional defects. Thus, we are squarely confronted with the ‘28 U.S.C. § 1447(c) provides: (c) If at any time before final judgment it appears that the case was removed improvidently and without jurisdiction, the district court shall remand the case. and may order the payment of just costs. A certified copy of the order of remand shall be mailed by its clerk to the clerk of the State court. The State court may thereupon proceed with such case. 13a issue whether the district court has discretion to remand a properly removed case. In Thermtron Products, Inc. v. Hermansdorfer, 423 U.S. 336 (1976), the Court held that a district judge erred as a matter of law in remanding a properly removed case to state court because his docket was overcrowded. /d. at 344-45. The Court criticized the district court’s action in strong terms, stating that, an otherwise properly removed action may no more be remanded because the district court considers itself too busy to try it than an action properly filed in the federal court in the first instance may be dismissed or referred to state courts for such reason. Id. at 344. In reaching this conclusion, the Court stated: “The District Court exceeded its authority in remanding on grounds not permitted by the controlling statute.” /d. at 345. In a footnote, the Court added: Lower federal courts have uniformly held that cases properly removed from state to federal court within the federal court’s jurisdiction may not be remanded for discretionary reasons not authorized by the con- trolling statute. Id. at 345 n.9 (citations omitted). Finally, in holding that mandamus was available to redress the district court's action, the Court stated: we are not convinced that Congress ever intended to extend carte blanche authority to the district courts to revise the federal statutes governing removal by remanding cases on grounds that seem justifiable to them but which are not recognized by the controlling Statute. Id. at 351. 4a Interpretation of Thermtron has divided the Courts of Appeals. The Seventh Circuit has held that 7Thermtron imposes a rigid rule limiting remand to those grounds specified in the statutes. See Ryan v. State Board of Elec- tions, 661 F.2d 1130, 1133-34 (7th Cir. 1981), see also Cook v. Weber, 698 F.2d 907, 909-10 (7th Cir. 1983). In a slightly different context, the Tenth Circuit has come to the same conclusion. See Sheet Metal Workers International Association v. Seay, 693 F.2d 1900 (10th Cir. 1982). Early post-7hermtron cases in the Fifth Circuit suggested that the court viewed Thermtron as laying down a hard and fast rule against non-statutory remand. See Jn re Greyhound Lines, Inc., 598 F.2d 883, 885 (Sth Cir. 1979), Jn re Merri- mack Mutual Fire Insurance Co., $87 F.2d 642 (Sth Cir. 1978). But see 1MFC Professional Services of Florida, Inc. v. Latin American Home Health, Inc., 676 F.2d 152, 159- 60 (Sth Cir. 1982). On the other hand, the Sixth Circuit has squarely held, on facts analogous to those presented here, that the district courts have discretion to remand a properly removed action when the federal causes of action have been removed from the complaint. See Jn re Romulus Commu- nity Schools, 729 F.2d 431 (6th Cir. 1984). Other circuits have come to similar results, but without discussing or even citing to Thermtron. See Fox v. Custis, 712 F.2d 84, 89-90 & n.4 (4th Cir. 1983); Hofbauer v. Northwestern National Bank of Rochester, 700 F.2d 1197. 1201 (8th Cir. 1983); Naylor v. Case & McGrath, Inc., 585 F.2d 557, 561- 63 (2d Cir. 1978). This court followed Thermtron in Levy v. i eissman, 671 F.2d 766 (3d Cir. 1982). Defendant in a properly removed action failed to comply with a local district court rule that required pro se litigants to file an address within Sa the district where documents could be served. Defendant's motion challenging the constitutionality of this rule was denied, and afier defendant failed to comply with the court's order, the court remanded the case to state court as a sanction. We granted defendant's petition for mandamus and, relying on Thermtron, stated the applicable law as follows: Where a case has not been removed improvidently or where subject matter jurisdiction exists, remand is inappropriate and a federal trial court has no jurisdic- tion to enter a remand order. Id. at 768 (footnote omitted). The holdings in Thermtron and Levy that remand may not be ordered on grounds not authorized by statute control our decision today. The district court was instead persuaded by the Sixth Circuit view that the Supreme Court’s “forceful pronouncement in Thermtron against remands unauthorized by statute were prompted by the extreme circumstances of that case.” Jn re Romulus Com- munity Schools, 729 F.2d at 436. No language in Therm- tron limits the Court's holding to the particular circum- stances of that case. With respect, we reject the reasoning of the Romulus court and Judge Stapleton that because pendent jurisdic- tion as construed in Gibbs affords clear authority for dis- muissal of a case in which all federal claims have been dropped. the district court may instead remand the remaining state claims to state court. Jd. at 436-40. We are not as “confident” as Judge Stapleton in predicting how the Supreme Court would have decided Gibbs had the case arisen in a removal context. Instead of depending on such prescience, we rely on what that Court stated in Thermtron 16a ten years after Gibbs. What it stated is directly applicable here. Moreover, the Thermtron Court's holding is merely an application of the fundamental constitutional principle that the jurisdiction of the inferior federal courts is depen- dent upor specific statutory authorization. Although the Romulus court and Judge Stapleton base their position on plausible policy reasons, primarily to insure a state forum for state claims, we believe those reasons are best addressed to Congress. If we were to hold that federal courts may remand cases to state courts for reasons not specified in federal statutes, we would nullify Congress’ effort to delineate the narrow circumstances in which remand is to be permitted. We would also frustrate Congress’ purpose in providing a right of removal, since a defendant who exercises that right might thereafter be subject to duplicative and costly subse- quent state proceedings. See Cook v. Weber, 698 F.2d at 909. Furthermore, allowing plaintiffs to obtain remands by dropping their federal claims could encourage manipula- tive and strategic remands. Indeed. in this case, Carnegie- Mellon suggests that the amendment and remand was sought because, after much effort and expense to it, the case was now ripe for summary judgment or trial. Finally, if the district court can remand solely as a matter of its discretion, as distinguished from pursuant to narrowly drawn statutory authority, there will be no effec- tive boundaries to the exercise of its discretion. “The writ of mandamus is not to be used when ‘the most thui could be claimed is that the district courts have erred in ruling on matters within their jurisdiction.” See Schliagenhauf v. Holder, 379 U.S. 104, 112 (1964) (quoting Parr v. United States, 351 U.S. $13, 520 (1956)). 17a We recognize that a most compelling case for a .emand is presented when the state claims of an innocent plaintiff will be barred by the running of the statute of limitations. The Seventh Circuit has suggested that the district courts will not be without recourse if they cannot remand since they may, in appropriate cases, retain the case or dismiss with or without prejudice. Cook v. Weber, 698 F.2d at 909. But see Tully v. Mott Supermarkets, Inc., 540 F.2d 187, 195-96 (3d Cir. 1976) (when only pendent claims remain pretrial, “court should ordinarily refrain from exercising jurisdiction in the absence of extraordi- nary circumstances”). Moreover, as Judge Stapleton acknowledges, there is no limitations problem where a state has a savings clause that would cover this situation. The serious limitations problem that he gives for encour- aging us to act where Congress has not yet chosen to can be readily ameliorated by enactment of such clauses by the remaining states. In any event, even if we were convinced that the policies supporting discretion in the district court to remand outweigh those militating against it, we would still not be free to deviate from the rule of law laid down in Thermiron and Levy v. Weissman. We will therefore «rant Carnegie-Mellon’s petition for mandamus and direc: the district court to vacate its remand order.‘ STAPLETON, Cricuit Judge, Dissenting: The court today holds that a federal district judge 1s powerless to remand a case to the state court from which it came even though he or she has properly determined that the case should not continue in a federal forum because ‘The district court will be free on remand to redetermine the appro- priate dispos:tion of the pendent claims. 18a only state claims between non-diverse parties remain to be litigated. This result is said to be mandated by the Supreme Court's Thermtron decision and our Levy deci- sion and by the fact that there is no specific statutory authority for such a remand. Because I conclude that spe- cific statutory authority is not necessary and that this mat- ter is governed by United Mine Workers v. Gibbs, 383 U.S. 715 (1966) rather than Thermtron and Levy, | respectfully dissent. When a federal judge in a suit between citizens of the same state entertains a state law claim related to a federal one, he exercises what we have come to call pendent juris- diction. When and how pendent jurisdiction will be exer- cised is a matter of trial court discretion. Gibbs, 383 U.S. at 725. That discretion is to be exercised based upon such considerations as “judicial economy, convenience, and fairness to the litigants” as well as upon comity and the desirability of avoiding unnecessary federal adjudication of state law issues. 383 U.S. at 725-26. These principles governing the exercise of pendent jurisdiction have been developed by the Supreme Court and Congress has seen fit to entrust the development of this area of the law to the courts. The judge who looks for Statutory guidance on when and how to exercise pendent jurisdiction will thus look in vain. In Gibbs, the Supreme Court instructed federal trial judges to monitor cases involving pendent claims through- out the life of those cases to ensure that a federal court remains the appropriate forum for resolving these claims. It specifically advised that, absent unusual circumstances, “if the federal claims are dismissed before trial, ... the state claims should be dismissed as well... and left for resolution to state tribunals.” 383 U.S. at 726-27. The 19a Supreme Court cited no statute or rule of court as author- ity for the proposition that dismissal of the state claims was appropriate. Indeed, there is no statute or rule of court specifically authorizing dismissal of a case in which the Court has jurisdiction over the parties and the subject mat- ter, the plaintiff is not in default. and the plaintiff's claim has not been shown to be deficiently pleaded or without merit. When the Supreme Court in Gibbs turned from the issue of when the exercise of federal pendent jurisdiction should cease to the issue of how a decision to cease should be implemented, it instructed that the dismissal of the State-law claims be without, rather than with, prejudice. This choice was informed, not by a statutory provision or rule, but by the same considerations which the Court had previously spelled out as governing the exercise of pendent jurisdiction. Based on considerations of comity and the desirability of preserving the state law issues for resolution by a state tribunal, the Court's choice of dismissal without prejudice was obvious. The Gibbs case had not been removed from a state court, accordingly, a remand was not an option for the Court in that case. If Gibbs had involved a removed case. however, | am confident that the Supreme Court would have done exactly what the district court did in this case. It would have considered the three available options - dis- missal with prejudice, dismissal without prejudice, and remand - in light of the principles which govern the exer- cise of pendent jurisdiction. I believe it would have con- cluded, as the district court did here, that where the justifi- cation for refusing to decide a pendent claim in a removed case is that the issues involved are better resolved by a 20a state tnbunal, a remand more efficiently serves the desired objective than does either of the other alternatives. Given the absence of statutory law relating to the exer- cise of pendent jurisdiction generally, it 1s not surprising that Congress has not expressly addressed the subject of remand in the context of a case in which an exercise of pendent jurisdiction has been found to be no longer appro- priate. However, one can infer from what Congress has declared that 1t would prefer the common sense result of a remand in this case. In Section 144l(c) of Title 28, Con- gress addresses the situation in which a removable claim over which a federal district court would have original jurisdiction is joined with one or more unrelated state claims which would not otherwise be removable. It provides: (c) Whenever a separate and independent claim or cause of action. which would be removable if sued upon alone, 1s joined with one or more otherwise non- removable claims or causes of action. the entire case may be removed and the distmct court ma) determine all issues therein, or, in its discretion. may remand all matters not otherwise within its orginal jurisdiction. 28 U.S.C. § 1441 ic). Section 144i(c) ts not applicable to this case because the Boyles’ state and federal claims arose from the same nucleus of operative facts and therefore are not “scparate and independent.” See American Fire & Casualty Co. v. Finn, 341 U.S. 6, 14 (1951). Nevertheless. it reflects a Congressional! policy similar to the one identified inGibbs- If removed state claims ought not to go forward in a fed- eral forum, the status quo should be restored so that these claims may be resolved by the state tribunal. 2la As earlier noted. the majority concludes that a dismis- sal rather than a remand is mandated not only by the absence of express statutory authority but also by Therm- tron Products, Inc. v. Hermansdorfer, 423 U.S. 336 (1975) and Levy v. Weissman, 671 F.2d 766 (3d Cir. 1982). Thermtron and Levy both involve a principle that is funda- mental to our jurisprudence, but which does not apply to the case at bar. When Congress has established a right to have a claim adjudicated by a federal court, a federal court may not deny a party that right. In both Thermtron and Levy the plaintiff had a right to a federal adjudication of their claims before the court. The question presented was whether a federal court, in the exercise of its discretion, could never- theless refuse to adjudicate those claims. There could, of course, be only one answer to this question. Denial of discretion to remand was necessary in order to vindicate the plaintiff's statutory mght to have his claim heard in a federal forum. As Gibbs makes clear, the parties to this action cur- rently have no right to a federal forum. 383 U.S. at 725. Congress has not provided the plaintiff or the defendant with a right to have plaintiff's state claims heard in a fed- eral court divorced from the federal claim. The district court, applying the principles laid down in Gibbs, found that it should not retain jurisdiction over these state claims. This crucial difference between the case at bar and Thermtron and Levy justifies a different approach in this case. As the majority notes, a number of other circuit courts have not considered the issue before us to be controlled by Thermtron and have recognized that remand is the more direct, economical and otherwise desirable alternative. See 22a In re Romulus Community Schools, 729 F.2d 431, 435-40 (6th Cir. 1984); Fox v. Custis, 712 F.2d 84, 89 n.4 (4th Cir. 1983); Hofbauer v. Northwestern National Bank of Roches- ter, 700 F.2d 1197, 1201 (8th Cir. 1983); IMFC Profes- sional Services of Florida v. Latin American Home Health, 676 F.2d 152, 160 (Sth Cir. 1982); Naylor v. Case & McGrath, Inc., 585 F.2d 557, 561-62 (2d Cir. 1978); Ondis v. Barrows, 538 F.2d 904, 908 (ist Cir. 1976). Several of these cases have recognized that in some circumstances a remand will be the only way to preserve claims that other- wise would be barred by limitations. Removed cases fre- quently remain pending in the federal court well past the limitations deadline. If for any reason a plaintiff's federal claim is found wanting after that deadline has passed, the majority’s approach, in states without savings statutes, will cause the plaintiff to forfeit the right to have his state claims heard in any forum. The majority's suggestion that this unfortunate potential for forfeiture may be amelio- rated by district courts’ choosing to retain and decide state claims which would be forfeited on dismissal is hardly a satisfying answer to the problem. Why, one may ask, should federal courts be compelled to litigate claims which have been initiated by the plaintiff in a state court and which, under Gibbs, belong in a state court? For me, the limitations problem is a far more serious one than those which the majority foresees resulting from permitting remands in cases of this kind. Fairness to liti- gants is one of the Gibbs factors and there is no reason to believe that district courts will be unable to protect against the manipulations which the majority fears. Moreover, while it is true that remand orders are less frequently sub- ject to appellate review than dismissals without prejudice, this is not a cause for alarm. The lessons of Gibbs and 23a Thermtron are clear enough to minimize the risk that a district court will erroneously remand to state courts despite the presence of a significant federal interest. For this reason, I regard the risk of meritorious claims being forfeited upon dismissal as too high a price to pay for automatic review of all cases of this kind. | would hold that the district court committed no error and that mandamus is, accordingly, inappropriate. A True Copy: Teste: Clerk of the United States Court of Appeals for the Third Circuit (A.O. U.S. Courts. G.M.C. Printing. Phila., Pa. 215-568-4264) 24a APPENDIX C United States Court of Appeals For THe THirpd Circuit No. 85-3619 — CARNEGIE-MELLON UNIVERSITY and JOHN KORDESICH, Petitioners VS. HONORABLE MARUICE B. COHILL, JR., United States District Judge. Nominal Respondent and WILLIAM BOYLE AND CARRIE BOYLE, Respondents Present: SLOVITER, STAPLETON, Circuit Judges, and LONGOBARDI, District Judge* ORDER Upon consideration of the Petition for Wirt of Man- damus, Respondent’s answer, the briefs of the petitioners and the respondents and after hearing oral argument by counsel April 29, 1986. It is ORDERED, ADJUDGED and DECREED by this Court that the prayer of petitioners is hereby granted and the Clerk of this Court is directed to issue a writ of mandamus in accordance with the opinion of this Court. Each party to bear its own costs. Do.ores K. SLOVittr August 29, 1986 Circuit Judge *Honorable Joseph J. Longobardi. United States District Court for the District of Delaware, sitting by designation. 25a APPENDIX D United States Court of Appeals For THe THirp Circuit No. 85-3619 CARNEGIE-MELLON UNIVERSITY and JOHN KORDESICH, Petitioners VS. HONORABLE MAURICE B. COHILL, JR.. United States District Judge, Nominal Respondent and WILLIAM BOYLE and CARRIE BOYLE, Respondents WRiT OF MANDAMUS UNITED STATES OF AMERICA, THIRD JUDICIAL CIRCUIT: SS To the Honorable Maurice B. Cohill, Chief Judge of the United States District Court for the Western District of Pennsylvania, GREETINGS: Wuereas, the Honorable Maurice B. Cohill by order entered October 10, 1985, in W.D. Civil No. 84-2285 remanded that case to the Court of Common Pleas of Allegheny County, Pennsylvania from which it had been removed; and, 26a Wuereas, Carnegie-Mellon University and John Kordesich filed a petition for writ of mandamus from that order requesting this Court to direct the said Honorable Maurice B. Cohill to enter an order vacating the said Octo- ber 10, 1985, order and to proceed with the case and in support of said petition the petitioners filed a brief on February 11, 1986, and a reply brief on March 5, 1986: and, Wuereas, the respondents filed a brief on February 25, 1986; and, Wuereas, this Court having heard oral argument by counsel April 29, 1986. and having rendered its opinion and the same being filed on this date, in which the Court having directed that the prayer of the petitioners for a writ of mandamus be granted: and Wuereas, the Court on this date has entered an order directing the Clerk of this Court to issue a writ of manda- mus im accordance with its opinion; Now Tuererore the Honorable Maurice B. Cohill is hereby REQUIRED and DIRECTED, immediately after receipt of this writ, and without unreasonable delays. to vacate the said order entered October 10, 1985. Francis R. Marysik Dated: August 29, 1986 Acting Clerk, United States Court of Appeals for the Third Circuit 27a APPENDIX E United States Court of Appeals For THe THixrp Circuit No. 85-3619 CARNEGIE-MELLON UNIVERSITY and JOHN KORDESICH, Petitioners Vv. HONORABLE MAURICE B. COHILL, JR.., United States District Judge, Nominal Respondent and WILLIAM BOYLE and CARRIE BOYLE, Respondents (W.D. Civil No. 84-2285) PRESENT: ALDISERT, Chief Judge, SEITZ. ADAMS, GIBBONS, WEIS. HIGGINBOTHAM, SLOVITER, BECKER, STAPLETON and MANSMANN, Circuit Judges. ORDER A majority of the active judges of the circuit in regular active service having voted for rehearing by the court in banc, it is hereby ORDERED that the petition for rehearing filed by William Boyle and Carne Boyle in the above 1s granted. 28a | It us Further ORDERED that the Clerk of this Court list the above case for rehearing before the Court in banc at the convenience of the Court. and It is Further ORDERED that the opinion and writ of mandamus be and are hereby vacated. BY THE COURT, Dated: September 24. 1986 Circuit Judge 29a APPENDIX F In THE Unitep States District Court For tHe Western District oF PENNSYLVANIA WILLIAM BOYLE and CARRIE BOYLE, Plaintiffs, Civil Action No. 84-2285 Vv. CARNEGIE-MELLON UNIVERSITY and JOHN KORDESICH, Defendants. OPINION COHILL, C.J. Presently before us is Plaintiffs’ Motion to Amend the Complaint, and, additionally, to remand this action to the Court of Common Pleas of Allegheny County, Pennsylvania. This action was originally brought by Plaintiffs in state court, asserting claims for wrongful! discharge, intentional! infliction of emotional distress, defamation, misrepresen- tation, age discrimination, breach of contract, tortious interference with contractual relations, and loss of consor- tuum. The Complaint alleges that Plaintiff, William Boyle. an employee of Carnegie Mellon University (“CMU”), was wrongfully discharged in connection with alleged improper billings and theft, and because of age discrimination. Com- plaint, #9 10-12,13. The Complaint also alleges “discrimi- nation in rehiring.” Jd. q 14. Defendants removed the case to this Court, basing removal on “Plaintiffs’ assertion of age discrimination” in 30a violation of the laws of the United States of America.” Complaint, 913. The Age Discrimination in Employment Act ““ADEA”), 29 U.S.C. §621 ef seg. prohibits such discrimination. Plaintiffs have moved to dismiss from the complaint, by way of amendment, claims for defamation, age discrim- ination under both state and federal law, and interference with marital relations. Motion to Amend, 99 5,6. We will grant the motion. Plaintiffs have, in addition, moved for remand of the remaining claims to state court, based on two arguments. First, Plaintiffs assert that remand is appropriate under 28 U.S.C. § 1447(c), providing for remand of cases improvi- dently removed. Alternatively, it would appear, Plaintiffs argue that where a narrowing of issues results in the dis- missal of the sole federal claim after removal, the Court should exercise its discretion to remand the pendent state claims. Defendants oppose remand. DISCUSSION Improvident Removal Removal jurisdiction is derivative in nature. “If the State court lacks jurisdiction of the subject matter or of the parties, the Federal court acquires none, although it might in a like suit, originally brought there, have had jurisdic- tion.” Lambert Run Coal Co. v. Baltimore & Ohio R.R., 258 U.S. 377, 382, 42 S.Ct. 349, 351, 66 L.Ed 671 (1922). Whether removal was proper or “improvident™ in the instant case depends on whether the ADEA is enforceable in state as well as federal courts. If a federal statute is enforceable in both state and federal courts, the action would clearly be removable under 28 U.S.C. § 1441(b). 3la In Kremer Chemical Construction Corp., 456 U.S. 461. 102 S.Ct. 1883, 72 L.Ed.2d 262 (1982), the Supreme Court left open the question of whether jurisdiction to entertain title VII cases is limited to federal courts. /d. at 479 n.20, 102 S.Ct. at 1896 n.20, 72 L.Ed.2d 262 (1982). The Court of Appeals for the Third Corcuit has not. to our knowledge, addressed this question. While courts have come to opposite conclusions on this question, we adopt the reasoning of those courts which have held that nothing in the language or structure of title VII mandates a conclu- sion that jurisdiction is exclusive. See, e.g., Patzer v. Board of Regents, 577 F.Supp. 1553, 1559 (W.D. Wis. 1984), rev d on other grounds, 763 F.2d 851 (7th Cir. 1985), Greene v. County School Board, 524 F.Supp. 43, 44-45 (E.D. Va. 1981); Bennum v. Board of Governors, 413 F.Supp. 1274, 1280 (D.N.J. 1976). We believe this reasoning is equally persuasive in cases brought under the ADEA. But see Dyer v. Greif Bros., Inc., 755 F.2d 1391, 1393 (9th Cir. 1985); Valenzuela v. Kraft, Inc., 739 F.2d 434, 435-36 (9th Cir. 1984), Dickinson v. Chrysler Corp., 456 F.Supp. 43, 45-48 (E.D. Mich. 1978). Thus, we hold that removal in this case was proper, and do not find section 1447(c) a proper ground for remanding the case. Other Grounds for Remand In the case at bar, the state and federal claims arise out of the same nucleus of operative facts. Thus, even after dismissal of the federal claim, (on motion of the Plaintiffs) we continue to have jurisdiction over the remaining state claims pursuant to the doctrine of pendent jurisdiction. See In re Carter. 618 F.2d 1093, 1104 (Sth Cir. 1980) (citing United Mine Workers v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 1138, 16 L.Ed.2d 218 (1966)), cert. denied sub nom. Sheet Metal Workers Int'l Ass'n v. Carter, 450 32a U.S. 949, 101 S.Ct. 1410, 67 L.Ed.2d 378 (1981); Naylor v. Case & McGrath, $85 F.2d $57, 562 (2d Cir. 1978). Pendent jurisdiction, however, is a doctrine of discre- tion. “Its justification lies in considerations of judicial economy, convenience, and fairness to the litigants... .” Gibbs, 383 U.S. at 726, 86 S.Ct. at 1139, 16 L.Ed.2d 218 (1966). The factors courts are to consider in deciding whether or not to exercise pendent jurisdiction are |) whether the federal claims were dismissed before trial: 2) whether state claims predominate, 3) whether the state claims are closely tied to questions of federal policy; and 4) whether a jury 1s likely to be confused by divergent legal theories of relief. /d. at 726-27, 86 S.Ct. at 1139-40, 16 L.Ed.2d 218. In considering these factors in the case at bar, we find that state claims predominate; the present action is not ai the point of tral, and that the state claims implicate no important questions of federal policy. Based on these considerations, we decline to exercise pendent jurisdiction. Applying the Gibbs analysis. however, does not resolve the question of whether a federal court should dis- miss or remand in such a case as this. As one court has stated, “[t}he issue can be of substantial importance: it affects the application of the statute of limitations, the priority of the case upon its return to the state court, and the reviewability of the district court's order itself.” Salveson v. Western States Bankcard Ass'n, 525 F Supp. 566, 581 n.17 (N.D. Calif. 1981). afd in part, rev'd in part on other grounds, 73) F.2d 1423 (9th Cir. 1984). We recognize, of course, that remand is a creature of Statute, provided for in 28 U.S.C. §§ 1441 (c) and 1447(c). We have previously discussed the inapplicability of 1447(c) as authority for remanding this case, since it was properly removed. Section 1441(c) is also inapplicable 33a because it refers to “separate and independent” claims. It thus does not apply in a case where the claims arise out of a common nucleus of operative facts. American Fire & Casualty Co. v. Finn, 341 U.S. 6, 14, 71 S.C. 534, 540, 95 L.Ed. 702 (1951); Salveson, $25 F.Supp. 566, 580 0.17; C. Wright, Law of Federal Courts, § 39, at 219-25 (4th ed. 1983). In Thermtron Products, Inc. v. Hermansdorfer, 423 U.S. 336, 96 S.Ct. 584, 46 L.Ed.2d 542 (1976), the Supreme Court held that a district court had exceeded its authority in remanding a properly removed case because of docket congestion. 46 L.Ed.2d at 550. The strong implication of the Court's opimion was that district courts are limited by reasons provided in the governing statutes in remanding removed cases. Accord. Levy v. Weissman, 671 F.2d 766, 769 (3d Cir. 1982) (district court erred in remanding prop- erly removed case as sanction for failure to comply with local rule: Thermtron prohibits remand for reasons not recognized by controlling statute). See also Boelens v. Redman Homes, Inc., 789 F.2d 504, S07 n= *s Car. 1985): Cook v. Weber. 698 F.2d 907. 909 (7th Cir. 1983). Since Thermitron, a significant number of appellate opimons have approved remand after dismissal of a fed- eral claim, where, for discretionary reasons, a district court decides not to retain jurisdiction of pendent state claims. The leading case, /n re Romulus Community Schools, 729 F.2d 431 (6th Cir. 1984) discusses these and conflicting cases. We find Romulus persuasive, and adopt its rationale in remanding the present case. See a/so Kazor v. General Motors Corp., 585 F.Supp. 62 (E.D. Mich. 1984) for an excellent review of this issue which 1s consistent with our result. We also recognize that this decision may conflict with Levy v. Weissman (supra). However, we believe that ida remand is appropriate in situations involving pendent junsdiction, and that the procedure has been approved by several courts of appeals. See ¢.¢.. Fox v. Custis, 712 F.2d 84, 89-90 (4th Cir. 1983): Hofhauer v. Northwestern National Bank of Rochester, 700 F.2d 1197, 1201 (8th Cir. 1983). Brough v. United Steelworkers of America, 437 F.2d 748. 750 (ist Cir. 1971). The question of remand in this situation was not addressed in Levy Since, under Thermiron, our order is appealable by petinon for wrt of mandamus. we need not certify the issue for appeal pursuant to 28 U.S.C. §1292(b). San appropriate order will follow. 35a IN THE UNiteD States District Court For THE WESTERN District OF PENNSYLVANIA WILLIAM BOYLE and CARRIE BOYLE, Plaintiffs, Civil Action No. 84-2285 Vv. CARNEGIE-MELLON UNIVERSITY and JOHN KORDESICH, Defendants. ORDER AND NOW, to-wit, this 10th day of October, 1985, for the reasons stated in the foregoing opinion, it is hereby ORDERED, ADJUDCED and DECREED that 1) Plaintiffs’ Motion to Amend the Complaint in the abuve-captioned matter be and hereby is GRANTED: 2) Plaintiffs’) Motion to Remand be and hereby 1s GRANTED: the Clerk is directed to remand the above-captioned action to the Court of Common Pleas of Allegheny County forthwith. Maurice B. Cowiie, Jr. Chief Judge ce: 36a ALLAN J. Opsitnick, Esa. HICKTON & OPSITNICK 527 Second Avenue Pittsburgh. PA 15219 Water P. DeForest, Eso. Rosert E. Sueeper, Eso. REED. SMITH. SHAW & McCLAY 847 Two Mellon Bank Center Pittsburgh, PA 15219 37a APPENDIX G United States Court of Appeals For THE THIRD CIRCUIT No. 85-3619 November 7, 1985 CARNEGIE-MELLON UNIVERSITY and JOHN KORDESICH, Petitioners vs. HON. MAURICE B. COHILL, JR., U.S.D_J., Nominal Respondent and WILLIAM BOYLE and CARRIE BOYLE, Respondents (Related to W.D.Pa. Civil No. 84-2285) Present: WEIS, SLOVITER and STAPLETON, Circuit Judges. 1. Petition for Writ of Mandamus and Appendix in support of petition, in the above-entitled case. Respectfully, DeNIse TROTTIE enc. Deputy Clerk 7-1092 dt Respondents Boyle et al are directed to file an answer to the petition for mandamus within 20 days of the date of this order. By the Court, Dated: December 20, 1985 dt/ec: (WPDeF, MAF) AJO 38a APPENDIX H United States Court of Appeals For Tue THirp Circuit No. 85-3619 CARNEGIE-MELLON UNIVERSITY. and JOHN KORDESICH, Petitioners Vv. HONORABLE MAURICE B. COHILL, JR.. United States District Judge, Nominal Respondent and WILLIAM BOYLE AND CARRIE BOYLE. Respondents Related to (W.D. Pa. Civ. No. 84-2285) Present: WEIS, SLOVITER and STAPLETON. Circuit Judges ORDER This case presents a novel and important question of federal jurisdiction. See 28 U.S.C. § 1441(c), 28 U.S.C. § 1447(c). Thermatron Products, Inc. vy. Hermansdorfer, 423 U.S. 336 (1976), Levy v. Weissman, 671 F.2d 766 (3d Cir. 1982). In re Romulus Community Schools, 729 F.2d 431 (6th Cir. 1984), Fox v. Custis, 712 F.2d 84 (4th Cir. 1983), JMFC Professional Services of Florida, Inc. v. Latin 39a American Home Health, Inc., 676 F.2d 152 (Sth Cir. 1982), Ryan v. State Bd. of Elections of State of Ill., 661 F.2d 1130 (7th Cir. 1981), Cook v. Weber, 698 F.2d 907 (7th Cir. 1983), Jn re Grevhound Lines, Inc., 598 F.2d 883 (Sth Cir. 1979). See also 42 Pa. Cons. Stat. Ann. § 5103 (Purdon Supp. 1985), Weaver v. Marine Bank, 683 F.2d 744 (3d Cir. 1982), McLaughlin v. ARCO Polymers, Inc., 72\ F.2d 426 (3d Cir. 1983). Accordingly, it is ORDERED that this matter is referred to a merits panel. The Clerk of Court shall fix a briefing schedule. BY THE COURT, Circuit Judge DATED: January 27. 1986 dt/cc: (Walter P. DeForest, Esq. (Mark A. Fontana, Esq. Allan J. Opsitnick, Esq. Hon. Maurice B. Cohill, Jr. OPPOSITION BRIEF Supreme Court, US, ~ FILED >) JAN 23 967 No, 86-1021 ANIOL, JR, RK In the Supreme Court of the United States October Term, 1986 CARNEGIE-MELLON UNIVERSITY and JOHN KORDEISCH, Petitioners, v. HONORABLE MAURICE B. COHILL, JR., United States District Judge, Nominal Respondent. and WILLIAM BOYLE and CARRIE BOYLE, Respondents Brief in Opposition to Petition for a Writ of Certiorari to the * ALLAN J. OPSITNICK HICKTON & OPSITNICK $27 Court Place Pittsburgh, PA 15219 (412) 471-1511 i. TABLE OF CITATIONS Cook v. Weber, 698 F.2d 907 (7th Cir. 1983) 4 In Re: Carter, 618 F2.d 1093 (Sth Cir. 1980) 4 Ryan v. State Board of Elections, 661 F.2d 1130 (7th Cir. 1981) 4 Sheet Metal Workers International Association v. Seay, 693 F.2d 1000 (1982), modi- fied on other grounds on rehearing, 696 F.2d 780 (LOth Cir. 1983) 4 Thermtron Products Inc. v. Hermansdorfer, 423 U.S. 336 (1976) 3 United Mine Workers v. Gibbs, 383 U.S. 715 (1966) 3 No. 86-1021 In the Supreme Court of the United States October Term, 1986 CARNEGIE-MELLON UNIVERSITY, and JOHN KORDESICH, Petitioners, Vv. HONORABLE MAURICE B. COHILL, JR., United States District Judge, Nominal Respondent, and WILLIAM BOYLE and CARRIF BOYLE, Responcents. BRIEF IN OPPOSITION TO PETITION “oR A WRIT OF CERTIOPARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT I. INTRODUCTION Respondents, William Boyle and Carrie Boyle (Boyle) are in substantial agreement with the Statement of the Case set forth by Petitioners. However, Petitioners attempt to create the infer- ence that there was bad faith on the part of Boyle and that pre-trial discovery and other motions were vir- tually completed. This is untrue. For the reasons set forth below, it is respectfully requested that this Honorable Court deny a Writ of Certiorari. II. REASONS FOR DENYING THE WRIT A. There is no conflict among Circuits regarding this issue of law. 3 There is no conflict among Circuits regarding this issue of law. The District Court, in its Order, uti- lized the doctrine of pendent jurisdic- tion as promulgated by this Honorable Court in United Mine Workers v. Gibbs, 383 U.S. 715 (1966), in a manner con- sistent with the holding of this Honorable Court in Thermtron Products, Inc., v. Hermansdorfer, 423 U.S. 336 (1976). Petitioners indicate that remand of removed cases has been permittea in the Second, Fourth, Sixth, and Eighth Circuits, but has not been permitted in the Fifth, Seventh, and Tenth Circuits. This is untrue. In the Fifth Circuit, remand of a removed case pursuant to pendent 4 jurisdiction is permitted, In Re: Carter 618 F.2d 1093 (1980). Carter was cited before the Third Circuit for this very proposition, but has not been dis- cussed or distinguished by Petitioners. The Seventh Circuit cases of Cook v. Weber 698 F.2d 907 (1983) and Ryan v. State Board of Elections 661 F.2d 1130 (1981) are distinguishable in that remand had occurred without any authority. Cook and Ryan are not pendent jurisdiction cases. Likewise, the Tenth Circuit case of Sheet Metal Workers International Association v. Seay 693 F.2d 1000 (1982), modified on other grounds on rehearing, 696 F.2d 780 (1983) is not a pendent jurisdiction case. 5 B. There is no important question of federal law. There is no important question of federal law that requires attention by this Honorable Court. Because there is no conflict among circuits, there is no issue to be settled by this Honorab’e Court. Assuming arguendo that there is an inter circuit conflict, the conflict is not of such a magnitude as to create an important question of federal law. This situation is a limited one and Petitioners' fear of “manipulation" of the federal court system is unfounded. While it is clear that the rema.d to State Court in *his case is not ounded in statute, it is based on 6 clear authority and, as such, is con- sistent with the abovementioned holdings of this Honorable Court and indicates that there is no conflict among circuits on this narrow point. -II. CONCLUSION For the reasons set forth above, the Petition for Certiorari should be denied. Respectfully submitted, *ALLAN J. OPSITNICK HICKTON & OPSITNICK 527 Court Place Pittsburgh, PA 15219 (412)471-1511 *Counsel for Respondents January 28, 1987 Supreme Court, U.S. | : FILED ey FEB 17 198 . _ SPANIOL, JR. ttt, ms gn the Supreme Court of the United States October Term, 1986 CARNEGIE-MELLON UNIVERSITY and JOHN KORDESICH, Petitioners, Vv. HONORABLE MAURICE B. COHILL, JR., United States District Judge, Nominal Respondent, and WILLIAM BOYLE and CARRIE BOYLE, Respondents. On Petition For a Writ of Certiorari To the United States Court of Appeals For the Third Circuit PETITIONERS’ REPLY BRIEF *Wacter P. DeForest III W. THomas McGouau, Jr. Mark A. FONTANA REED SMITH SHAW & McCLAY Mellon Square 435 Sixth Avenue Pittsburgh, Pennsylvania 15219 (412) 288-3383 *Counsel of Record Counsel for Petitioners for Petitioners Carnegie-Mellon University and John Kordesich | No. 86-1021 Jn the Supreme Court of the Limeted States October Term, 1986 CARNEGIE-MELLON UNIVERSITY and JOHN KORDESICH, Petitioners, v. HONORABLE MAURICE B. COHILL, JR., United States District Judge, Nominal Respondent, and WILLIAM BOYLE and CARRIE BOYLE, Respondents. On Petition For a Writ of Certiorari To the United States Court of Appeals For the Third Circuit Petitioners’ Reply Brief The Brief in Opposition to Petition for a Writ of Certi- orari submitted by Respondents William Boyle and Carrie Boyle (“Brief in Opposition’’) asserts that there is no con- flict among the Circuits regarding the issue presented for review. In addition to the discussion in the Petition for a Writ of Certiorari to the United States Court of Appeals for the Third Circuit (“Petition”) on this point, Petitioners 2 simply note that both the Third Circuit majority opinion and the district court recognized the existence of this con- flict in the Circuits over whether a district court has the authority to remand a properly removed case to state court for a reason not set forth in 28 U.S.C. § 1447(c). Petition App. B, at 14a; App. F, at 33a. Contrary to the assertion in the Brief in Opposition at 4, the Seventh Circuit's decision in Cook v. Weber, 698 F.2d 907, 909 (7th Cir. 1983), did involve the disposition of pendant state law claims. More- over, the question presented by this case—whether a prop- erly removed case may be remanded for a reason not speci- fied in the controlling statute—is not limited to situations of pendent state law claims. The Fifth Circuit's decision in In re Carter, 618 F.2d 1093 (Sth Cir. 1980), cert. denied, sub nom., Sheet Metal Workers Int'l Ass'n v. Carter, 450 U.S. 949 (1981), did not direct a remand of pendent state claims to the state court. The discussion at the conclusion of that opinion suggests that the district court’s choice on remand from the Fifth Circuit was to either dismiss or retain the state law claims. 618 F.2d at 1105. In any event, as explained at pp. 12-13 and n.4 of the Petition, the Fifth Circuit’s decision in Jn re Greyhound Lines, Inc., 598 F.2d 883 (Sth Cir. 1979), is still good law. Boelens v. Redman Homes, Inc., 759 F.2d 504, 507 n.2 (Sth Cir. 1985). 3 Further, the importance of this issue was acknowl- edged explicitly by the Third Circuit in its order accepting the matter for mandamus review of this issue. Petition App. H. It was also implicitly acknowledged by the even- tual scheduling of this case for argument in banc by the Third Circuit. Petition App. E. Respectfully submitted, *Wartter P. DeForest Ill W. THomas McGouGn, Jr. Mark A. FONTANA REED SMITH SHAW & McCLAY Mellon Square 435 Sixth Avenue Pittsburgh, Pennsylvania 15219 (412) 288-3383 Counsel for Petitioners Carnegie-Mellon University and John Kordesich February 16, 1987 *Counsel of Record for Petitioners JOINT APPENDIX FiLLED | sPR 6 ISET 7 ScpH © SPANIOL, JR. ; TLERK No. 86-1021 aa gn the Supreme Court of the United States October Term, 1986 CARNEGIE-MELLON UNIVERSITY and JOHN KORDESICH, Petitioners, Vv. HONORABLE MAURICE B. COHILL, JR.., United States District Judge, Nominal Respondent, and WILLIAM BOYLE and CARRIE BOYLE, Respondents. On WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT JOINT APPENDIX *ALLAN J. OPSITNICK *Wa ter P. DeForest III HIcKTON & OPSITNICK MarK A. FONTANA 527 Court Place REED SMITH SHAW & McCLAY Pittsburgh, PA 15219 Mellon Square (412) 471-1511 435 Sixth Avenue Counsel for Respondents Pittsburgh, PA 15219 (412) 288-3383 Counsel for Petitioners *Counsel of Record PETITION FOR CERTIORARI FILED DECEMBER 23, 1986 CERTIORARI GRANTED FEBRUARY 23, 1987 TABLE OF CONTENTS Chronological List of Docket Entries, United States District Court for the Western District of Pennsylvania in William Boyle, et al. v. Carnegie-Mellon University, et al., No. 84-2285. . . Chronological List of Docket Entries, United States Court of Appeals for the Third Circuit in Carnegie-Mellon University, et al., v. Honorable Maurice B. Cohill, Jr., et all, March 8, 1985 Order of Court, filed March 8, 1985... Motion to Remand, filed April 15, 1985 51 The following opinions, orders and writ of mandamus have been omitted in printing this Joint Appendix because they appear on the following pages of the Petition for Writ of Certiorari: Opinion and Order of the United States District Court for the Western District of Pennsylvania in Civil Action No. 84-2285, dated October 10, Order of the United States Court of Appeals for the Third Circuit in No. 85-3619 directing Respondents to file an answer to the petition for mandamus, dated URS Ge, Ge oocecesssekin Pet. App. G, 37a Order of the United States Court of Appeals for the Third Circuit in No. 85-3619 referring matter to merits panel and fixing a briefing schedule, dated OD GS Ea Pet. App. H, 38a Opinion of the United States Court of Appeals for the Third Circuit in No. 85-3619, dated August 29, 1986............. Pet. App. B, 3a Order of the United States Court of Appea!s for the Third Circuit in No. 85-3619 directing the issuance of a writ of mandamus, dated August 29, 1986............ Pet. App. C, 24a Writ of Mandamus of the United States Court of Appeals for the Third Circuit in No. 85-3619, dated August 29, 1986............ Pet. App. D, 25a Order of the United States Court of Appeals for the Third Circuit in No. 85-3619 granting rehearing in banc, dated September 24, 1986......... Pet. App. E, 27a Order of the United States Court of Appeals for the Third Circuit in No. 85-3619 denying petition for wnt of mandamus, dated November 24, 1986......... Pet. App. A, la DATE 1984 Sept 21 Oct 10 Oct 15 Nov 14 1985 Mar 7 l UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA William Boyle and Carrie Boyle Vv. Carnegie-Mellen University NR. and John Kordesich Civil Action No. 84-2285 PROCEEDINGS Notice and Petition for Removal from Court of Common Pleas filed by Carnegie-Mellon University and John Kordesich with copy of complaint; $250.00 removal bond filed—receipt No. 46992. ANSWER filed by deft. Not of Dep of William Boyle on 10/30/84 at 9:00 AM , Not of Pretrial Procedure stating Rule SII is invoked; discovery ends 3/15/85; Pltfs pretrial due 4/5/85: defts pretrial due 4/26/85; stip of counsel 5/15/85 Notice and motion for enlargement of discovery period filed by plitfs with a proposed order. Mar 8 Mar 7 Apr 15 May 2 May 7 w/5 10 2 Opposition by defts to pitfs motion for enlargement of discovery time filed. Order entered directing that the par- ties are permitted to conduct discov- ery in this case for an add’l 60 days from 3-15-85; discovery shall end on 5-14-85; the date of the pretrial sub- missions of the parties and the stipu- lations of the parties shall be adjusted accordingly (Cohii, J.) Notice and motion to remand from the U.S. District Court for the West- ern District of Penna to the court of Common Pleas of Allegheny County filed by pitfs with a proposed order. Notice and motion for leave to amend complaint filed by pitfs with a pro- posed order. Notice for motion for enlargement of time filed by pltfs with proposed order. Deft’s response in opposition to pltf’s motion for enlargement of time filed. May 8 May 9 w/9 11 3 Order entered directing that the par- ties shall complete discovery by 45 days from the date of deposition of pltfs motion for remand and motion for leave to amend complaint; pltfs pretrial shall be filed by 21 days from the date of discovery shall end; defts pretrial shall be filed by 21 days from the date pltfs pretrial is due and stipu- lation of counsel shall be filed by 21 days from the date defts pretrial is due. (Cohill, J.) Stipulation filed with a proposed order. May 9 Oct 10 w/11 4 Order entered directing that pltfs, any counsel for pltfs and any other indi- viduals who are or become associated with the preparation of pltfs claims shall not disclose any of the informa- tion rec’d in discovery from defts or any personnel or representatives of defts, except for the sole purposes of the above captioned lawsuit and for no other purpose; defts and counsel for defts and any other individuals who are or become associated with the preparation or trial of deft’s de- fense shall not disclose any informa- tion rec’d in discovery from pltfs or any representatives of pltfs, except for the sole purposes of if the above cap- tioned lawsuit and for no other pur- poses; further pltfs and counsel for pltfs and any other individuals who are or become associated with the preparation or trial of pitfs claim shall return to counsel for defts all records, files and documents rec’d in discovery from defts or any personnel or repre- sentatives of defts. (Cohill, J.) Opinion filed and order entered that Pitfs’ motion to amend complaint is granted; Pitf's motion to remand be and hereby is granted; the clerk is di- rected to remand the case to the Court of Common Pleas of Allegheny Coun- ty forthwith COHILL, J. Oct 10 Oct 10 Oct 10 Nov | Nov | Nov 6 Nov 6 Nov 12 Nov 12 13 14 5 Pursuant to order entered this case is hereby remanded to Ct. of Common Pleas. of Alleg. County, and mot. to amend complaint is granted. Gilbert W. Conley, Clerk Notices mailed. Transmittal letter and CC of order sent to John P. Joyce, Prothonotary of Alleg. County Ct. Notice of appeal filed by deft from or- der dated 10-10-85. (USCA $65.00- CA $5.00 paid) Cc of notice of appeal, cc of order dat- ed 10-10-85, cc of docket entries mailed to the U.S. Ct. of Appeals; copy of notice to Judge Cohill, No Ct. Reporter. Transcript purchase order filed by ap- pellants advising that a transcript is not need; statement of the issues at- tached thereto. Record complete for appeal purposes 3 copies of docket entries 1 cert mailed to the U.S. Ct. of Appeals. Letter received and filed from the Ct. of Appeals advising that the case is docketed at No. 85-3620. Certified list in lieu of record received from Ct. of appeals as to 85-3620. Dec 24 1986 Sept 2 Sept 26 Nov 26 Nov 26 15 16 17 6 Certified copy of order issued 12-20- 85 in the Ct. of Appeals and filed; di- recting that the foregoing appeal is dismissed. Order rec’d and filed from the Ct. of Appeals, directing that the petition is hereby granted and the Clerk of that Court is directed to issue a writ of mandamus in accordance with the opinion of the court; each party to bear its own costs; writ of mandamus attached and filed. Certified copy of order issued 9-24-86 in the Ct. of Appeals rec’d and filed; directing that the Clerk of that court list the above case for rehearing before the Court in banc at the convenience of the court; further ordered that the opinion and writ of mandamus be and are hereby vacated. Certified copy of order issued 11-24- 86 rec’d and filed from the Ct. of Ap- peals directing that the petition for a writ of mandamus be and is hereby denied; each side to pay its own costs; Receipt for same mailed to the U:S. Ct. of Appeals. TT Nov 26 18 1986 Dec 4 19 1987 Jan 16 20 7 Motion of defts for stay pending ap- plication to the United States Su- preme Court filed with a proposed order. Response by defts to pltfs reply to mo- tion by defts for stay filed. Information sheet on post decision matter rc’d from Ct. of Appeals advis- ing writ of certiorari was filed 12/24/ 86 in Supreme ct at 86-1021 DATE 1985 Nov 6 Nov 6 Nov 6 Nov 7 Nov 7 UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT CARNEGIE-MELLON UNIVERSITY and JOHN KORDESICH, Petitioners vs. HONORABLE MAURICE B. COHILL, JR.., United States District Judge, Nominal Respondent and WILLIAM BOYLE and CARRIE BOYLE, Respondents DOCKET No. 85-3619 FILINGS—PROCEEDINGS Petition for writ of mandamus, filed. Appendix in support of petition for writ of man- damus, w/svc., filed. (mgp) Motion by pets/applts to consolidate appeal in 85-3620 and petition for writ of mandamus in 85-3619, w/sve, filed. (Cv. 85-3619/20) (dt) Submitted on petition for writ of mandamus. Coram: Weis, Sloviter and Stapleton, C.J. (dt) Submitted on pets/applits’ motion to consoli- date. Coram: Weis, Sloviter and Stapleton, C.J. (dt) Dec 20 Jan 9 Jan 27 Jan 27 Aug 29 9 Order (Weis, Sloviter and Stapleton, C.J.) di- recting respondents Boyle, et al., to file an answer to the petition for mandamus within 20 days of the date of this order, filed. (dt) Answer of respondents to petition for writ of mandamus, recd at the direction of the Court, filed. (dt) Order (Weis, Sloviter and Stapleton, C.J.) refer- ring the petition for writ of mandamus to a merits panel. The Clerk of Court shall fix a briefing schedule, filed. (dt) Order (Clerk) directing the parties to abide by the following briefing schedule: |. Brief for petitioners and the appendix shall be filed and served on or before 2/11/86; 2. Brief for re- spondents shall be filed and served on or before 2/26/86; 3. RB for petitioners, if any, shall be filed and served on or before 3/5/86; and it is further ordered that the Clerk shall list this case for disposition at the earliest con- venience of the Court, filed. (dt) Writ of Mandamus by the Acting Clerk of Court of Appeals filed. (sa) VACATED Aug 29 Order (Sloviter, Stapleton, Cir. Judges and Lon- Aug 29 gobardi, Dist. Judge) ordering and adjudging and decreed by this Court the prayer of part- ner is granted. The Clerk of Ct. directed to issue writ of mandamus. Each party to bear its own costs. (sa) VACATED Certified copy of writ of mandamus and order sent to the Clerk of D.C. (sa) Sept 24 Nov 13 Nov 24 Nov 24 Dec | 10 Order (Aldisert, Ch Judge Seitz Adams Gibbons, Weis Higginbotham Sloviter Becker Stapleton and Mansmann, Cir. Judges.) granting pet. for rehg. Further ordering that the Clerk list case for rehg. before the Ct in banc at the conve- nience of the Ct. & Further ordering that the opinion and writ of mandamus be vacated. filed (sa) Reargued In Banc. Coram: Aldisert, Ch.J., Seitz, Adams, Gibbons, Weis, Higginbotham, Sloviter, Becker, Stapleton & Mansmann, CJ. (ab) Order (Aldisert, Chief Judge, Seitz, Adams, Gib- bons Weis, Higginbotham Sloviter Becker Stapleton and Mansmann, Cir. Judges) Or- dering and adjudging that the pet. for writ of mandamus be and is hereby denied. Each side to pay its own csts. (sa) Certified copy of above order sent to the Clerk of the D.C. (sa) Receipt of 11/24/86, order received from C. of D.C., filed. (mgp) UNiTeD States District COURT FOR THE WESTERN DisTRICT OF PENNSYLVANIA WILLIAM BOYLE and CARRIE BOYLE, Plaintiffs, v. Civil Action CARNEGIE-MELLON No. 84-2285 UNIVERSITY and JOHN KORDESICH, Defendants. ; NOTICE TO: Prothonotary Court of Common Pleas of Allegheny County, Pennsylvania Allan J. Opsitnick Hickton & Opsitnick 527 Second Avenue Pittsburgh, Pennsylvania 15219 Please take notice that a Petition for Removal and Cash Bond were filed in the United States District Court for the Western District of Pennsylvania on September 21, 1984. We hereby certify that the Petition for Removal attached hereto is a true and correct copy of the original as filed in Federal Court. Walter P. DeForest Robert E. Sheeder Reed Smith Shaw & McClay 847 Two Mellon Bank Center Pittsburgh, Pennsylvania 15219 Counsel to Defendants 12 UnNitep States District COURT FOR THE WESTERN DisTRICT OF PENNSYLVANIA WILLIAM BOYLE and CARRIE BOYLE, Plaintiffs, v. Civil Action CARNEGIE-MELLON No. - UNIVERSITY and JOHN KORDESICH, Defendants. | PETITION FOR REMOVAL TO: The Judges for the United States District Court for the Western District of Pennsylvania Petitioners Carnegie-Mellon University and John Kordesich (hereafter “Petitioners”), hereby petition as follows: 1. On or about September 13, 1984, a Complaint against Petitioners was filed in the Court of Common Pleas of Allegheny County, Pennsylvania. A copy of said Com- plaint is attached hereto as Exhibit |. 2. In said Complaint, Plaintiffs William Boyle and Carrie Boyle allege that in September 1983, at the age of 56, William Boyle was discharged from his employment with Petitioner Carnegie-Mellon University. 3. In Count I of the Complaint, Plaintiffs allege, inter alia, that William Boyle was wrongfully discharged and denied employment by Carnegie-Mellon University because of his age. 13 4. At Paragraph 13 of the Complaint, Plaintiffs specifi- cally aver that these alleged discriminatory actions by Peti- tioner Carnegie-Mellon University were in violation of the laws of the United States of America. 5. At Paragraph 14, Plaintiffs aver that William Boyle was also discriminatorily denied rehire by Carnegie-Mel- lon University because of his age. 6. Paragraphs 13 and 14 clearly aver a cause of action arising under Federal law, specifically the Federal Age Dis- crimination in Employment Act, 29 U.S.C. §§621 ef seq.; and therefore aver a cause of action subject to federal juris- diction without regard to the amount in controversy or the citizenship of the parties, pursuant to 29 U.S.C. §626(c\1) of the Federal Age Discrimination in Employment Act and 28 U.S.C. §§1331 and 1343. 7. Count I of the Complaint also purports to raise an action under Pennsylvania statutory law and a common law tort based upon the same alleged operative facts as underlie the averments of Paragraphs 13 and 14. 8. These additional claims in Count I, arising from the same alleged operative facts as Plaintiff's Federal claims, are subject to pendent Federal jurisdiction. 9. Count II of the Complaint avers a common law Assumpsit action against Petitioner Carnegie-Mellon Uni- versity, which is based on the same alleged operative facts as underlie Plaintiffs’ Federal claims, and over which there is clearly pendent Federal jurisdiction. 10. Count III of the Complaint avers a common law tort claim against Petitioner John Kordesich which is 14 based on the same alleged operative facts as underlie Plain- tiffs’ Federal claims, and over which there is also pendent Federal jurisdiction. 11. Count IV of the Complaint avers a common law tort claim against both Petitioners Carnegie-Mellon Uni- versity and John Kordesich by Plaintiff Carrie Boyle, which is based on the same alleged operative facts as underlie Plaintiffs’ Federal claims, and over which there is also pendent Federal jurisdiction. 12. Petitioners have filed a cash bond with good and sufficient surety as required by 28 U.S.C §1446(d). Wuererore, for the above reasons, Petitioners request that the above-described action, pending in the Court of Common Pleas of Allegheny County, Pennsylvania be removed therefrom to this Court. Walter P. DeForest Robert E. Sheeder Reed Smith Shaw & McClay 847 Two Mellon Bank Center Pittsburgh, Pennsylvania 15219 Counsel to Petitioners Dated: September 21, 1984 IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA WILLIAM BOYLE and CARRIE BOYLE, Plaintiffs, vs. CARNEGIE-MELLON UNIVERSITY and JOHN KORDESICH, Defendants. | CERTIFY THIS TO BE A TRUE AND CORRECT COPY OF THE ORIGINAL FILED IN THIS CASE. /s/ Avan J. Orsitnick ATTORNEY FOR PLAINTIFF DIVISION-CIVIL No. GD 84-16147 Issue No. Pleading— COMPLAINT IN CIVIL ACTION Code—001 ASSUMPSIT/ TRESPASS Filed on behalf of: Counsel of Record for this Party: Allan J. Opsitnick Pa. I.D. #28126 HICKTON & OPSITNICK Firm #707 527 Second Avenue Pittsburgh, PA 15219 (412) 471-1511 16 NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this com- plaint and notice are served, by entering a written appear- ance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE OR KNOW A LAWYER OR CANNOT AFFORD ONE, THEN YOU SHOULD GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP: LAWYER REFERRAL SERVICE ALLEGHENY COUNTY BAR ASSOCIATION 920 CITY-COUNTY BUILDING PITTSBURGH, PA 15219 TELEPHONE: (412) 261-2088 17 COMPLAINT IN TRESPASS & ASSUMPSIT AND Now, come Plaintiffs William S. Boyle and Carrie Boyle, his wife, by their attorneys, Allan J. Opsitnick, Esq., Hickton & Opsitnick, and bring this cause of action against Defendants as set forth more fully below: 1. Plaintiff William S. Boyle is an adult individual residing at 6523 Leechburg Road, Penn Hills, Allegheny County, Pennsylvania. 2. Plaintiff Carrie Boyle is an adult individual, and the wife of William S. Boyle, residing at 6523 Leechburg Road, Penn Hills, Allegheny County, Pennsylvania. 3. Defendant, Carnegie-Mellon University, is a corpo- ration with its principal place of business located at 5000 Forbes Avenue, Pittsburgh, Allegheny County, Pennsylvania. 4. Defendant, John Kordesich, is an adult individual employed by defendant, Carnegie-Mellon University, with his business address at 5000 Forbes Avenue, Pittsburgh, Allegheny County, Pennsylvania. 5. William §S. Boyle (hereinafter referred to as “Boyle”’) had been an employee of defendant, Carnegie- Mellon University (hereinafter referred to as ““University”) from June, 1967 through and including September 9, 1983. 6. In September, 1983, Boyle was discharged from his employment by the University. Said discharge was illegal, improper, and otherwise wrongful, and in violation of con- tractual obligations on the part of the University and tor- tious as to be both the University and Defendant Kordesich (hereinafter referred to as “Kordesich’’). 18 Count I—William S. Boyle vs Carnegie-Mellon University—In Trespass 7. Paragraphs | through 6, above, are hereby incorpo- rated by reference. 8. The discharge of Boyle by the University and subse- quent failure to rehire Boyle constitutes a tortious and improper discharge under the laws of the Commonwealth of Pennsylvania. 9. More specifically, the discharge of Boyle by the University was wrongful in that: (a) The discharge was contrary to public policy; (b) The discharge was contrary to all generally accepted principles of fairness, good faith and equity; (c) The conduct of the University in discharging Boyle was outrageous and constitutes intentional infliction of emotional distress; (d) The University has published defamatory state- ments regarding Boyle; (e) The University has made certain misrepresenta- tions to and regarding Boyle. 10. Said discharge is in violation of the public policy of this Commonwealth since Boyle was discharged because he refused to accept any form of blame or guilt in a scheme involving improper billings and theft of property by a cer- tain member of the Locksmith Department of the University. 11. Furthermore, Boyle drew attention to, and tried to correct instances of theft of University property. 19 12. Said discharge of Boyle was without any founda- tion and a competent, industrious and loyal employee was terminated as a scapegoat after the abovementioned theft scheme was discovered. 13. Said termination was also based upon Boyle’s age, 56, and was therefore illegal and improper and in violation of the laws of the United States of America and the Com- monwealth of Pennsylvania. 14. Boyle was also the victim of discrimination in rehiring. Norman Gerlach, an air conditioning foreman, was fired at almost the same time as Boyle, but was rehired thereafter. Boyle has requested rehiring on a number of occasions, but has not been rehired. In fact, the University has stated that it shall not rehire Boyle. 15. The conduct of the University and its agents, ser- vants and employees, in discharging a long term, compe- tent, industrious and loyal employee, without any founda- tion and without economic reason, and more specifically, discharging Boyle after conjuring up improper reasons for the discharge constitutes outrageous conduct which led to the intentional infliction of emotional distress upon Boyle. 16. Said conduct has caused Boyle severe emotional distress, more specifically, anxiety and other nervous dis- orders; high blood pressure and nervousness; and interfer- ence with his heretofore well balanced relationship with his wife and family. 17. Boyle has been defamed by the University in that the false statements regarding Boyle that constituted the basis for his discharge have been communicated to other members of the University, former fellow employees of Boyle and prospective employers. 20 18. These defamatory statements impugn Boyle’s character generally, and his ability to work as an electrician and deal with others on the job, more specifically. 19. The publication of defamatory comments has caused Boyle damage through humiliation and embarrass- ment in the community and the inability to obtain employment since his wrongful discharge. 20. The University has engaged in misrepresentation to both Boyle and to others inside and outside of the Uni- versity community in that the grounds allegedly the basis of Boyle’s discharge were communicated to these other people and said persons have relied on these misrepresentations. 21. The reliance upon the abovementioned misrepre- sentations by said third persons have damaged Boyle. 22. The abovementioned tortious conduct by the Uni- versity is the direct and proximate cause of serious injury and damage to Boyle. 23. Boyle has suffered injury and damage as follows: (a) Severe emotional distress; (b) Anxiety; (c) Nervous disorders; (d) High blood pressure; (e) Interference with a heretofore well balanced rela- tionship with wife and family; (f) Embarrassment and humiliation; (g) Ruination of reputation; 21 (h) Loss of income from employment, both wages and benefits; (i) Expenditures of monies on medical services: (j) Loss of expected income in promotions, raises and improvement in benefits: (k) Pain, suffering and inconvenience. 24. Boyle also demands reinstatement to his former position as well as punitive damages and counsel fees. WHEREFORE Boyle respectfully requests that judgment be entered in his favor and against Defendant University in an amount exceeding twenty thousand dollars ($20,000.00). A JURY TRIAL IS DEMANDED. Count II—William Boyle vs Carnegie-Mellon University—In Assumpsit 25. Paragraphs | through 24 above are hereby incor- porated by reference. 26. Boyle was discharged by the University in viola- tion of both express and implied contracts of employment which prohibited said termination. 27. An express contract between Boyle and the Uni- versity was formed through certain provisions of the “Staff Handbook” distributed by the University to all employees. More specifically, the following contractual terms were breached by the University: (a) The failure to terminate for one of the specified grounds that are the sole reason for a “cause” termination. These grounds are (1) chronic absenteeism; 22 (2) theft; (3) unauthorized use or removal of property; (4) neglect of duty; (5) unlawful use of dangerous drugs or alcohol on the job; (6) intoxication on the job; (7) immoral conduct; (8) absence without notice; (9) insubordination; (10) destruction of CMU property; (b) Failure to adhere to the grievance procedure as outlined in the “Staff Handbook”; (c) Failure to adhere to the progressive discipline provisions as outlined by the “Staff Handbook”. The applicable provisions of the “Staff Handbook” are attached hereto, labelled Exhibit | and are incorporated by reference. 28. An implied contract existed between Boyle and the University which was breached by the University. More specifically, this implied contract arose out of Boyle’s long service with the University and was reaffirmed when Boyle took a position as acting Maintenance Manager until a ARTES GOS US SN, SHS CD SEES EP Se as job as Electrical Foreman. 29. Boyle relied on the implied contractual relation- ship that he would continue his employment as long as he would perform his work properly. Boyle did so through and including the date he was fired. 23 30. Because of the abovementioned contractual breaches by the University, Boyle has sustained the follow- ing items of damage: (a) Separation from employment: (b) Loss of income from employment, both wages and benefits; (c) Loss of expected income in promotions, raises and improvements in benefits; (d) The expenditure of funds to renew Boyle's electri- cian’s license, necessary for his employment. _ WHEREFORE Boyle respectfully requests that judgment be entered in his favor and against Defendant University in an amount exceeding twenty thousand dollars ($20,000.00). A JURY TRIAL IS DEMANDED. Count II1I—William S. Boyle vs John Kordesich— In Trespass 31. Paragraphs | through 30 above are hereby incor- porated by reference. 32. Defendant Kordesich (hereinafter referred to as “Kordesich”) was, by nature of his position as Boyle's immediate supervisor, in a position to affect Boyle's employment relationship with the University. _ 33. Kordesich did fabricate grounds to implement the discharge of Boyle and in doing so, acted in a negligent, willful, wanton and reckless fashion. More specifically, Kordesich acted so as to commit the following torts: (a) Tortious interferen [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_1140%3A0. Public record. Not legal advice.