Petition for Writ of Certiorari — Greene v. Benfield

—

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1992

JAMES GREENE, LOU BYRON, AND THE

JEFFERSON COUNTY SHERIFF’S OFFICE

Petitioners

Vv.

JOYCE BENFIELD, et al, Respondents

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE SIXTH CIRCUIT

DOUGLAS H. MORRIS

Oldfather & Morris

1 Mezzanine, Morrissey Bldg

304 West Liberty Street

Louisville, Kentucky 40202

(502) 589-5500

Counsel of Record

JAMES QO. BARRETT

Oldfather & Morris

1 Mezzanine, Morrissey Bldg

304 West Liberty Street

Louisville, Kentucky 40202

(502) 589-5500

Counsel for Petitioners

QUESTIONS PRESENTED

1) Whether the Sixth Circuit may

refuse to consider the merits of a petition

for mandamus seeking to vacate a federal

district court’s order remanding an action

to state court when the action was provi-

dently removed under federal question

jurisdiction.

2) Whether a federal district court

may remand a case providently removed from

state court under federal question

jurisdiction, when the plaintiffs dismissed

their Title VII claims while retaining

their substantially identical state Civil

Rights Act claims, without recognizing that

forum manipulation is a legitimate counter-

vailing factor in considering whether to

remand.

LIST OF PARTIES

The parties to the proceedings below

were the Petitioners (Defendants) James

Greene, Lou Byron, and the Jefferson County

Sheriff’s Office and the Rbepondents

(Plaintiffs) Joyce Benfield, Tina Gibbs,

Betty Waldridge, Joan Ball, Gloria

Mattingly, who are also Respondents before

this Court. (Defendant Ronnie Wall was not

a party to the proceedings in the Sixth

Circuit and is not a party to the proceed-

ings before this Court.)

ii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED .... + «© «© «© «© «© 2

Ri@t OF PARIIBS «© «© «© «+ © © © © © eo ii

Omemrome BELOW . 2. we tl tl hl hl hl hl hl lCl

JURISDICTION Pee es . cs ee eh lle

STATUTE INVOLVED .....+-e+ +++ 3

STATEMENT OF THE CASE .....-+-+-+s+ 4

REASONS FOR GRANTING THE WRIT ..... 7

I. The Sixth Circuit’s refusal to con-

sider a mandamus petition seeking to

vacate the remand of a providently

removed action and the Sixth Circuit

policy of remand conflicts with the

decisions of this Court ..... 7

II. Both the Magistrate Judge’s refusal to

consider forum manipulation as a coun-

tervailing factor in remanding and the

Sixth Circuit’s positions regarding

review present important questions for

the orderly administration of justice

and the viability of the right of

federal question removal... . 10

CONCLUSION ees 6 € £ © 8s 6 8 6 8 13

APPENDIX << « & = & © # © © @ 1-A

District Court Order remanding 1-A

Memorandum Opinion remanding . . 3-A

Sixth Circuit Order .... . 2i~a

iil

TABLE OF CASES AND AUTHORITIES

Cases Cited

Carnegie-Mellon University v. Cohill,

484 U.S. 343 (1988) ;

Kentucky Commission on Human Rights v.

Commonwealth of Kentucky, 586

S.W.2d 270 (Ct. App. 1979)

Mine Workers v. Gibbs, 383 U.S. 715

(1966) ee op er

Service Hospital Nursing Home and

Public Employees Union, Local No.

47 v. Commercial Properties Ser-

vices, Inc., 755 F.2d 499 (6th

Cir. 985)

Thermtron Products, The. Wi

Hermansdorfer, 423 u.8. 336

(1976) : - - s

S u .

28 U.S.C. § 636(d)(1)(A)

28 U.S.C. § 1254(1) ‘

20 0.6.0. & 2468 >

28 U.S.C. § 1447 —_

28 U.S.C. § 636(d)(1)(A)

26 U.S.C. § 1254(1) - »

28 U.S.C. § 1446 - *

ae Uce.ts | i967

lv

WNN &ONND S

No.

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1992

JAMES GREENE, LOU BYRON, AND THE

JEFFERSON COUNTY SHERIFF’S OF-

FICE, Petitioners

JOYCE BENFIELD, et al, Respondents

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE SIXTH CIRCUIT

OPINIONS BELOW

The opinion of the Court of Appeals

for the Sixth Circuit has not_ been

reported, and is reprinted in the Appendix

hereto, p. 21-A, infra.

The memorandum opinion of the United

States District Court for the Western

District of Kentucky (Gambill, M.J.) has

not been reported, and is reprinted in the

Appendix, hereto, p. 3-A, infra.

JURISDICTION

Respondents filed suit in Kentucky

state court claiming violation of Title

VII, the Kentucky Civil Rights Act, and

intentional infliction of emotional

distress. Petitioners removed the action

to federal district court under federal

question jurisdiction pursuant to 28 U.S.C.

§ 1446. The Western District of Kentucky

remanded the action to Kentucky state

court. Petitioners’ mandamus petition to

the Sixth Circuit was denied on December

18, 1992. No rehearing was sought.

The jurisdiction of this Court to

review the judgment of the Sixth Circuit is

invoked under 28 U.S.C. § 1254(1).

STATUTE INVOLVED

28 U.S.C. § 1447. Procedure after

removal generally.

(a) In any case removed from a state

court, the district court may issue all

necessary orders and process 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 jurisdic-

tion, 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 case to

the state court from which it was removed

pursuant to section 1443 of this title

shall be reviewable by appeal on otherwise.

ee ee

STATEMENT OF THE CASE

Petitioner Lou Byron is a former

deputy sheriff of Jefferson County,

Kentucky. “Petitioner James Greene is the

Sheriff of Jefferson County, Kentucky.’

Respondents are employees of the Jefferson

County Sheriff’s office.

Respondents’ complaint alleged sexual

harassment in violation of Title VII, the

Kentucky Civil Rights Act, and intentional

infliction of emotional distress. On July

2, 1992, Defendants removed the action to

federal district court. The action was

assigned to a Magistrate Judge for

determination of all non-dispositive

matters pursuant to 28 U.S.C. § 636(d)

(1)(A) and (B).

On July 14, 1992, Plaintiffs moved the

district court to remand to state court,

ralsing several arguments alleging improvi-

' Defendant Ronnie Wall is a deputy

sheriff, a defendant in the action below,

who has not joined in this Petition.

4

dent removal. However, the Magistrate

Judge held that the action was providently

removed. (Appendix, pp. 5-A to 8-A).

Alternatively, Plaintiffs conditionally

offered to dismiss their Title VII harass-

ment claim (while retaining their Kentucky

Civil Rights Act harassment claim) if the

district court would agree to- remand.

Petitioners opposed this, arguing that the

Plaintiffs’ dismissal of one, and retention

of the other, substantially identical state

claim was forum manipulative on its face.”

The Magistrate Judge agreed to the

Plaintiffs’ arrangement and ordered remand

conditional upon the Plaintiffs’ dismissal

The dispositive provisions of the Ken-

tucky Act and Title VII are so similar that

the Kentucky courts have stated:

United States Supreme Court decisions

regarding the federal provisions are

most persuasive, if not controlling,

in interpreting the Kentucky statute.

Kentucky Commission on Human Rights v.

Commonwealth of Kentucky, 586 S.W.2d

270, 271 (Ct. App. 1979).

5

of their Title VII claim, concluding that

“it is no more manipulation to argue for

remand than it is to originally remove the

action from state court to federal court."

The Magistrate Judge also found that the

Sixth Circuit "has moved away from the

position that the court has discretion to

retain jurisdiction over a pendent state

Claim where the federal claim has been

dismissed before trial," citing, Service

Hospital Nursing Home an ub Lc mployees

Union, Local No. 47 Vv. Commercial

Properties Services, Inc., 755 F.2d 499,

506, n. 9 (6th Cir. 1985), cert. denied 474

U.S. 850 (1985). The Magistrate Judge

concluded that this policy and the applica-

tion of the traditional balancing factors

required remand. (Appendix, p. 19-A).

Petitioners’ mandamus petition sought

to vacate the remand order. The Sixth

Circuit, by order entered December 18,

1992, held that review of the merits of the

mandamus petition was unavailable because

mandamus “cannot be used to control a

district court in the exercise of its

discretionary duties. (Appendix, pp. 25-A

to 26-A).

REASONS FOR GRANTING WRIT

I.

The Sixth Circuit’s refusal to

consider a mandamus petition seeking

to vacate the remand of a providently

removed action and the Sixth Circuit

policy of remand conflicts with the

decisions of this Court.

The Sixth Circuit declined to address

the merits of the Petitioners’ mandamus

petition, stating that:

The remedy of mandamus is a drastic

one, to be invoked only in extra-

ordinary situations where the

petitioner can show ae clear and

indisputable right to the relief

sought. It cannot be used to control

a district court in the exercise of

discretionary duties. The Defendants

have not demonstrated a clear and

indisputable right to the relief they

seek. The Court, therefore, concludes

that mandamus relief is not warranted.

[citations omitted] (Appendix pp. 24-

A to 25A).

In contrast, in Thermtron Products,

S. wv. m , 423 U.S. 336 (1976)

this Court held that mandamus was

appropriate to review the remand of

providently removed actions, stating that:

"There is nothing in our later cases

dealing with the extraordinary writs

that leads us to question the

availability of mandamus in

circumstances where the district court

has refused to adjudicate a case; and

has remanded it on- grounds not

authorized by the removal statues. On

the contrary, these cases would sup-

port the use of mandamus to prevent

nullification of the removal statutes

by remand orders resting on grounds

having no warrant in the law." [cita-

tions omitted) Id, at 352-53.

The removal statute, 28 U.S.C. § 1447,

cnly authorizes remand if the action was

improvidently removed. It is well settled

that the 28 U.S.C. § 1147(d) prohibition

against the review of remand orders only

applies to the remand of cases which were

improvidently removed. Thermtron, supra,

423 U.S. @t 353-353. It is indisputable

that this case was providently removed.

neglie- ] Univ Vv ‘

484 U.S. 343 (1988), narrowed Thermtron by

holding that a district court has

discretion to remand pendent claims where

the federal claim is dismissed,” impliedly

affirming the availability of mandamus to

review such a remand by the very fact that

the judgment reviewed in Carnegie-Mellon

was the disposition of a petition for

mandamus.

The conflict created by the Sixth

Circuit’s refusal to follow Thermtron is

exacerbated by its "policy" of remanding--

by its having “moved away from the position

that the court has discretion to retain

jurisdiction over a pendent state claim

where the federal claim has been dismissed

before trial." Service Hospital] Nursing

;

That discretion is guided by the diver-

sity pendent claims factors of Mine Workers

v. Gibbs, 383 U.S. 715 (1966). However,

Carnegie-Mellon cautioned that federal

question cases require consideration of an

additional factor: forum manipulation.

Carnegie-Mellon, 484 U.S. at 357.

9

Supra, 755 F.2d at 506, n. 9.

The result is that the Sixth Circuit

has created a presumption of remand, ar-

guably mandatory, in either event a

presumption in derogation of the Carnegie-

Mellon test and it cloaks the presumption

in non-reviewability--in derogation of both

Thermtron and Carnegie-Mellon.

II

Both the Magistrate Judge’s refusal to

consider forum manipulation as a coun-

tervailing factor in remanding and the

Sixth Circuit’s positions regarding

review present important questions for

the orderly administration of justice

and the viability of the right of

federal question removal.

If the Magistrate Judge is correct

that it is no more manipulation to argue

for remand than to remove to federal court,

ipso facto, no remand can be manipulative.

This result is plainly contrary to

Carnegie-Mellon's admonition to guard

against forum manipulation by refusing to

10

remand pendent claims where appropriate,

(although it is worth noting that no

precedent defines forum manipulation).

If forum manipulation is ever to be

considered as a factor, it should be in

this case, where the Respondents admitted

they were motivated by forum preference.”

No other rationale can explain the dismis-

sal of one sexual harassment claim and the

retention of another, where the elements of

proof of both are substantially identical.

Several factors bear emphasis as to

the importance of a resolution of these

issues. First, the frequency in which this

situation can arise is significant. Every

federal statute under which state courts

have concurrent jurisdiction, when the

state has an analogous statute (Title VII

4 In their motion to remand they stated

that they preferred a state forum because

of the congestion of the federal court

docket (a consideration specifically con-

demned by Thermtron) and they felt the

voters of Jefferson County should hold

their own elected official accountable.

11

and the Age Discrimination in Employment

Act to name a few) creates the potential

for this kind of abuse.

Second, if these Plaintiff’s tactics

are permissible, all such litigants, as

well as the state and federal court sys-

tems, are exposed to extraordinarily was-

teful and unnecessary manipulations."

Finally, these maneuvers are demeaning

to the litigants and the courts. Bartering

Claims for forums legitimizes the use of

legal process as a ploy and renders federal

question removal jurisdiction a sham. It

Gives plaintiffs an unrestricted (appar-

ently unreviewable) right to litigate

federal claims only in state court, as they

may file charges of violation of federal

s

In this case alone, 35 pleadings and

Orders were filed in federal court after

removal, none of which would have been

necessary had the Respondents either an-

ticipated their forum preference by omit-

ting the Title VII claim from their origi-

nal complaint or resigned themselves to

removal.

12

and state statutes, then discard the

federal question and remand whenever an

action is removed and they perceive a

tactical advantage in the state forum.

CONCLUSION

For the reasons stated above this

petition should be granted. If this

Petition is granted, Petitioners will

respectfully request the matter be remanded

to the Sixth Circuit with directions to

enter mandamus requiring the district court

to vacate its order remanding the action to

state court.

s tfully submitted,

DOUGLAS H. MORRIS

Oldfather & Morris

1 Mezzanine, Morrissey Bldg

304 West Liberty Street

Louisville, Kentucky 40202

(502) 589-5500

Counsel of Record

JAMES O. BARRETT

Oldfather & Morris

1 Mezzanine, Morrissey Bldg

304 West Liberty Street

Louisville, Kentucky 40202

(502) 589-5500

13

Counsel for Petitioner Lou Byron

RONALD L. COOK

619 Marion E. Taylor Building

Louisville, Kentucky 40202

(502) 583-2646

Counsel for Petitioner Jefferson

County Sheriff's Office

GEORGE SALEM, JR.

Kentucky Home Life Building

Louisville, Kentucky 40202

(502) 583-4881

Counsel for Petitioner James

Greene

14

APPENDIX

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF KENTUCKY

AT LOUISVILLE

CIVIL ACTION NO. C-92-0380-L(M)

JOYCE BENFIELD, ET AL. PLAINTIFFS

Vv.

JAMES GREEN, ET AL. DEFENDANTS

ORDER

The plaintiffs having timely filed

their motion to dismiss their Title VII

claim and the Court being otherwise

sufficiently advised,

IT IS HEREBY ORDERED that the

plaintiffs Title VII claim be and hereby is

dismissed.

IT IS FURTHER ORDERED that the action

be and hereby is remanded to state court

and the Clerk of the Court is directed to

notify the Jefferson Circuit Court of the

remand.

Dated this 21st day of September

1992.

{ SIGNED l

CHARLES M. ALLEN, SENIOR JUDGE FOR

RONALD E. MEREDITH, CHIEF JUDGE

UNITED STATES DISTRICT COURT

cc: Counsel of Record

ENTERED

SEPT 21 1992

JESSE W. GRIDER, CLERK

By DEPUTY CLERK, L. GRIMES

| a

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF KENTUCKY

AT LOUISVILLE

JOYCE BENFIELD, ET AL. PLAINTIFFS

vs. CIVIL ACTION NO. C92-0380-L(M)

JAMES GREENE, ET AL. DEFENDANTS

ORDER

This matter is before the

Magistrate Judge on the motion of the

plaintiffs pursuant to 28 U.S.C. § 1447(C)

to remand this action to the Jefferson

Circuit Court (Docket No. 11). Defendants

have responded (Docket Nos. 18, 19).

Plaintiffs have replied (Docket No. 21).

Accordingly, the motion is now ripe for

consideration.

The motion of the plaintiffs to

remand is based on two factors: (1) tne

plaintiffs desire for a prompt judicial

resolution of their allegations; and (2)

their belief that the issues raised in

3-A

their suit “should be resolved by a jury of

Jefferson County voters who will hold the

elected and appointed officials of the

Jefferson County Sheriffs office

accountable for their conduct." (Docket No.

Aly Pe ij.

Plaintiffs argue in support of

their motion that the defendants have

failed to comply with the jurisdictional

requirements of 28 U.S.C. § 1446(a) by

their failure to attach a copy of the

temporary restraining order entered by

Judge Ken Corey on June 5, 1992, to their

petition for removal. Alteratively,

plaintiffs argue that the District Court

has discretion to remand the entire case,

Or the pendent state claims, pursuant to

Carnegie - lll, 484

U.S. 343 (1988). Plaintiffs also offer to

dismiss their federal claim pursuant to 42

Si betes § 2000(e) to eliminate the

jurisdictional ground for removal (Docket

No. 11, p. 3).

Upon consideration, the

Magistrate Judge grants the motion of the

plaintiffs to remand. While neither of the

two factors mentioned by the plaintiffs is

persuasive, and the failure of the

defendants to attach a:copy of the state’s

temporary restraining order is not a

jurisdictional defect, the Magistrate Judge

concludes that the traditional criteria of

fairness, judicial economy, convenience and

comity, require remand following dismissal

of the federal claim.

The first question is whether the

defendants’ failure to attach a copy of the

restraining order to the petition for

removal requires remand. The removal

procedural requirements of 28 U.S.C. §

1446(a) require only that the petition have

attached “a copy of all process, pleadings

and orders served upon him or them in such

action." 28 u.8.¢€. § 1446(a) (1973)

(emphasis added). The restraining order

was entered ex parte, and apparently, was

not served. Therefore, the literal

language of the statute does not require

that the order accompany the petition for

removal. to 4

Nicaraguenses, 768 F.2d 1285 (llth Cir.

1985) because motion to quash service of

process in state court was not served on

defendant who sought removal, there was no

requirement defendant file motion with the

district court).

More significantly, the omission

of the order is not a jurisdictional

defect. The purpose of the statute is to

ensure that the District Court has before

it all documents essential to determining

its jurisdiction at the time of removal.

See Pennsylvania v. Leeman, 66 N.E. 48

(Ind. 1903). A temporary restraining order

is not a pleading that establishes the

6-A

jurisdiction of the federal courts.

Therefore, while a plaintiff may move to

remand for a procedural irregularity in the

removal process; in general, such defect,

if it does not lead to doubt of federal

jurisdiction, is curable. Brown Bros. Cypen

Corp. v. Carner Bank of Miami Beach, Pia...

287 F.Supp. 700 (S.D. N.Y. 1968); Kramer v.

Jarvis, 81 F.Supp. 360 (D.C Neb. 1948).

See also First National City Bank v. Nanc,

Inc., 437 F.Supp. 184 (S.D. N.Y. 1975)

(failure of defendants to include with

their petition exhibits to the complaints,

including the loan agreement with its forum

selection clause, was not 4 jurisdictional

defect and did not warrant remand).

The restraining order in question

has been put before the Court by the

plaintiff. The Magistrate Judge has ruled

that this restraining order remains in

effect. 28 U.S.C. § 1450.! Therefore, any

defect is cured.

The next question involves the

discretion of the District Court to remand

the present action. Plaintiffs argue that

even if their Title VII claim is not

dismissed, this Court has discretion

pursuant to Carnegie -Mellon, Supra, to

remand their federal and pendent state

Claims. The Magistrate Judge disagrees.

Carnegie- Mellon does not hold that a

federal district court has unbounded

discretion to remand otherwise properly

removed federal claims. The decision,

instead, addresses those actions in which

the federal claim has been dismissed, and

Only the pendent state claims remain.

‘ The Magistrate Judge previously

directed the parties to address the

question of whether 28 U.S.C. § 1450

required the district court to continue to

Give effect to the state restraining order.

No legal memoranda were filed on this

issue. Accordingly, the Magistrate Judge

rules for the plaintiffs on this point.

8-A

———— OE EEEEAALLj>___--—-—-S

ne

In such situations, the district

court has discretionary jurisdiction over

the removed state law claims, and may chose

not to exercise its jurisdiction.

Carnegie-Mellon, 484 U.S. at 355. see

Hughes v. Ohjo Bel] Tele. Co., 916 F.2d

367, 372 (6th Cir. 1990). ("Cohill simply

gives the district court discretion to

remand a case if the federal claim is

dismissed and only the pendent state claims

remain." )

Further, the same argument was

specifically rejected in Thermtron

Products, Inc, v. Hermansdorfer, 423 U.S.

336 (1976). In Thermtron Products, the

Supreme Court held that a district court

may not remand a removed case without

specific statutory authorization. The

facts of Thermtron are particularly

+ a

relevant. In Thermtron, the district court

remanded an action due to its congested

docket (one of the two reasons suggested by

the present plaintiffs). The question at

issue was whether the district court could

remand an otherwise properly removed case

for reasons not authorized by federal

Statute. The Supreme Court held that:

“Because the district judge remanded a

properly removed case on grounds that he

had no authority to consider, he exceeded

his statutorily defined power and issuance

of the writ of mandamus was not barred.

Beard v. Carrollton RR, 893 F.2d i227,

121 (6th Cir. 1989) (citing Thermtron

Products, 423 U.S. at 351). In short, the

district court has no discretion Simply to

remand an otherwise properly removed

federal claim. Neither congestion of the

court docket, nor a desire for a state

Jury, is a proper basis for remand.

This conclusion brings us to the

final issue. Plaintiffs have offered to

dismiss their federal claim, and argue that

dismissal of this claim justifies remand to

10-A

the state court pursuant to Carnegie-

Mellon. Defendants respond that while

Carnegie-Mellon gives this Court’ the

discretion to remand, the plaintiffs’

attempt to remand is merely a bald attempt

to manipulate the jurisdiction of the

federal courts. Defendants support this

argument by pointing out that although the

plaintiffs have offered to dismiss their

federal Title VII claim, they have not

offered to dismiss the state counterpart

under the Kentucky Civil Rights Act, KRS

Chapter 344, et seq. Defendants also argue

that even if this Court does not find any

attempt by the plaintiffs to manipulate

federal jurisdiction, a weighing of the

traditional criteria for remand requires

the Magistrate Judge to deny the plain-

These arguments compel the

Magistrate Judge to return to Carnegie-

Mellon v. Cohill. The import of Carnegie-

11-A

Mellon was recently discussed in Monks v.

Marlinga, 923 F.2d 423 (6th Cir. 1991),

wherein the Sixth Circuit explained:

([I]n Carnegie-Mellon v. Cohill,

484 U.S. 343, 108 S.Ct. 614, 98 L.Ed

-2d 720 (1988), the Supreme Court

ruled that a federal court need not

dismiss state claims when all federal

claims have been eliminated. Although

the federal court may decline to

exercise jurisdiction, the rule is not

mandatory, but, instead, may be

applied flexibly in all cases. Id. at

350, 108 S.Ct. at 618-19. The federal

court must balance concerns of

judicial economy, convenience,

fairness and comity. Id.

Monks, 923 F.2d at 426.

Although the Carnegie-Mellon

decision indicates that remand upon

dismissal of the federal claim is

discretionary, it should be noted that the

case law of this Circuit strongly favors

remand when the basis of federal

jurisdiction no longer exists.

For example, in Servjce Hospital Nursing

Home and Public Employees Union, Local No.

47 v. Commercial Properties Services, Inc.,

735 F.2d 499, $06,.n.9 €608 Git.) oe

12-A

den., 474 U.S. 850 (1985), the Sixth

Circuit held that: “This Circuit has moved

away from the position that the court has

discretion to retain jurisdiction over a

pendent state claim where the federal claim

has been dismissed before trial." See also

Henry v. Metro. Sewer District, 922 F.2d

332, 335, n.2 (6th Cir. 1990).

Keeping in mind the policy of the

Sixth Circuit, and the traditional

balancing test, the Magistrate Judge

concludes that upon dismissal of the plain-

tiffs’ federal claim, remand of this action

is necessary, as well as appropriate. The

Magistrate Judge reaches this conclusion

for several important reasons. First, all

factors of the traditional balancing test

favor remand. Judicial economy will not be

thwarted by remand. The present case was

removed to federal court only one month ago

on June 30, 1992. The District Court has

not yet invested substantial judicial

resources in the action. Second, remanding

the action to state court will not

inconvenience any party. All parties to

this action are located in Louisville,

Kentucky. A remand, in practical terms,

Simply means a_ shorter walk to the

courthouse. Third, fairness is not

thwarted by a remand. There is absolutely

no suggestion in the record that the

parties cannot obtain an equally fair trial

before the Jefferson Circuit Court. This

case does not present the typical concerns

of a case which arises from diversity

Jurisdiction where often one party is

justifiably concerned about being “home

towned" in a state court.

Comity is the final factor to be

weighed. Defendants’ arguments

notwithstanding, this factor weighs heavily

in favor of remand. Defendants argue that

the plaintiffs’ state claim pursuant to KRS

Chapter 344, involves the same legal

14-A

analysis ordinarily involved in the plain-

tiffs’ Title VII claim. Accordingly,

defendants conclude that there are not

concerns of comity. In other words, the

federal court will not be intruding on the

traditional role of the state courts by

deciding the plaintiffs’ state claim for

sexual discrimination.

The Magistrate Judge does not

disagree with this argument insofar as the

plaintiffs’ state and federal civil rights

claims are concerned. However, the

argument ignores the plaintiffs’ proposed

Claim pursuant to Kentucky’s "“whistle-

blower" statute, KRS 61.101, et seg. The

“whistleblower” statute was recently

enacted in 1986. The Magistrate Judge is

unaware of any published Kentucky cases

which interpret its terms. Therefore, the

whistleblower claim raises potential

questions of first impression under state

law which are obviously better left to the

Kentucky courts.’

This conclusion is reinforced by

the decision of the Sixth Circuit in

Wi lams _v , 909 F.2d

151, 157 (6th Cir. 1990). In Williams, a

city attorney was dismissed due to his

political and personal incompatibility with

a newly-elected mayor. He filed suit

pursuant to 42 U.S.C. § 1983 alleging a

> The whistleblower claim is raised by

the plaintiffs in their tendered

amended/supplemental complaint (Docket No.

14), along with a claim for defamation.

The Sheriff's office has filed a response

to the motion for leave to file an amended

supplemental complaint in which it objects

primarily on the grounds that the

defamation claim is untimely under state

law (Docket No. 20). Although the

Magistrate Judge has yet to grant leave to

the plaintiff to file their

amended/supplemental complaint, Rule 15(a)

clearly provides that leave to file amended

pleadings shall be “liberally granted when

justice so requires." Further, defendants

have not challenged the whistleblower claim

as such in their response. Accordingly,

the Magistrate Judge considers st

appropriate to weigh the impact of this

claim as it relates to the plaintiffs’

motion to remand.

violation of his civil rights. The

district court held that the attorney’s

dismissal did not violate the First

Amendment and continued to grant summary

judgment to the defendant - city on the

attorney’s pendent state contract claims.

On appeal, the Sixth Circuit affirmed the

dismissal of tthe federal civil rights

claim, but reversed the grant of summary

judgment to the defendants. After finding

that genuine issues of material fact

existed, the Sixth Circuit reversed and

remanded the state contract claims with

instructions to the district: court to

dismiss the contract claims without

prejudice.

In so doing, the Sixth Circuit

held that:

Where an action in federal court

includes both federal and pendent

State claims and the court dismisses

the federal claims before trial on a

motion for summary judgment, the

pendent state claims are ordinarily

dismissed as well... Pendent

jurisdiction is a doctrine of

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discretion. Gibbs, 383 U.S. at 726,

6. S.Ct... et. 14399. In this case, the

federal constitutional claims which

form the basis for federal

jurisdiction over the case, were

properly dismissed by summary judgment

before trial. Consequently, the

contract claims will be dismissed.

Moreover, the contract claims require

interpretations of the city charter of

River Rouge and of Michigan contract

law, questions more properly addressed

by the Michigan courts.

Williams, 909 F.2d at 157 (numerous

citations omitted).

If simple state contract claims

such as those in Williams are more properly

left to the state courts, then it

necessarily follows that claims under a

recently enacted and uninterpreted state

Statute such as KRS 61.101 must be remanded

to state court as well. This is dictated

by the policy of the Sixth Circuit and the

traditional balancing test.

In concluding, the Magistrate

Judge addresses the question of

manipulation. Defendants argue at length

that the plaintiffs are simply attempting

to manipulate the federal courts. The

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Magistrate Judge does not share this view.

It is no more manipulation to argue for

remand than it is to originally remove the

action from state court to federal court.

Both situations obviously involve some

tactical advantage for one party or the

other. Accordingly, the Magistrate Judge

accords little weight to this argument. It

is the policy of the Sixth Circuit and the

application of the traditional balancing

test which require remand.

Accordingly, the Magistrate Judge

orders that this action be remanded to

State court following the timely filing by

the plaintiffs of a motion to dismiss their

Title VII claim. See Acme Elec. Corp. v.

Sigma Instruments, Inc., 122 F.R.B. 26,20

(W.D. N.Y. 1988). (A magistrate judge has

authority pursuant to 28 U.S.C. § 636(b)

(1)(A) to enter a nondispositive order

remanding an action to state court. Such

order may be reviewed by the district court

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pursuant to the clearly erroneous

standard. )

IT IS SO ORDERED THIS 10TH DAY OF

AUGUST, i992.

ENTERED AUG 10 1992

JESSIE W. GRIDER, CLERK

BY [SIGNED]

DEPUTY CLERK

. [SIGNED }

C. Cleveland Gambill

United States Magistrate Judge

Copies to:Counsel of Record

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Nos. 92-6266/6284/6340

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

JOYCE BENFIELD;

Plaintiff-Appellee,

TINA GIBBS; BETTY WALDRIDGE;

JOAN BALL; GLORIA MATTINGLY

Intervening Plaintiffs-

Appellees,

V.

JAMES GREENE;

Defendant-Appellant,

(92-6284)

LOU BYRON; JEFFERSON COUNTY

SHERIFF'S OFFICE

Defendants-Appellants.

(92-6266)

In re: LOU BYRON; JAMES GREENE

JEFFERSON COUNTY SHERIFF'S

OFFICE

Petitioners.

(92-6340)

we Wek tase Salt eat a Ces Ca Sa A a at EP A AP A OE A OP Te A EE

ORDER

FILED DEC 18 1992, LEONARD GREEN, CLERK

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NOT RECOMMENDED FOR FULL-TEXT

PUBLICATION

Sixth Circuit Rule 24 limits citation

to specific situations. Please see

Rule 24 before citing in a proceeding

in a court in the Sixth Circuit. If

cited, a copy must be served on other

parties and the Court.

This notice is to be prominently

displayed if this decision is

reproduced.

BEFORE: GUY and NELSON, Circuit Judges;

and BROWN, Senior Circuit Judge.

The defendants in this sexual

harassment case appeal a district court

order granting the plaintiffs’ motion to

voluntarily dismiss their federal claim

under Title VII and remanding the plain-

tiffs’ state claims back to the state court

from which they were removed. In the

alternative, the defendants seek a writ of

mandamus directing the district court to

vacate its order of remand. The district

court has submitted a copy of its docket

sheet in response to the petition for

mandamus. The plaintiffs now move to

dismiss the defendants’ appeals in Cases

Nos. 92-6266/6284 and for sanctions. The

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defendants have filed a response in

Opposition to the motions. The defendants

move to stay the district court’s order of

remand pending’ eppeal or review in

mandamus. The district court has denied a

Similar motion.

In Regis Associates v. Rank Hotels,

Ltd., 894 F.2d 193, 194 (6th Cir. 1990)

this court held that “a remand order is

reviewable on appeal when it is based on a

Substantive decision on the merits of a

collateral issue as opposed to just a

matter of jurisdiction." In the present

case, however, the district court’s remand

Order is not based on a_- substantive

decision, but rather on the granting of a

motion by the plaintiffs to voluntarily

dismiss their federal cause of action.

Under these circumstances, we conclude that

review, if available, may only be had

pursuant to a petition for a writ of

mandamus. 7. oe Jn}

23

>

school Dist. 11, 909 F.2d 267, 271 (7th

Cir. 1990). Consequently, the defendants’

appeals in Cases Nos. 92-6266/6284 must be

dismissed for lack of appellate

jurisdiction.

If a court of appeals determines that

an appeal is frivolous, Rule 38, Fed. R.

App. P., permits the court to “award just

damages and single or double costs to the

appellee." "An appeal is frivolous if it is

obviously without merit and is prosecuted

for delay, harassment, or other improper

purposes.” Dallo v. INS, 765 F.2d 581, 589

(6th Cir. 1985). Upon consideration, the

court concludes that sanctions are not

appropriate in these cases.

“The remedy of mandamus is a drastic

one, to be invoked only in extraordinary

Situations where the petitioner can show a

clear and indisputable right to the relief

sougnt. It cannot be used to control a

district court in the exercise of

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discretionary duties." JIn re American

President Lines, Ltd., 929 F.2d 226, 227

(6th Car. 1991) (order) (citations

omitted). A district court’s order

Granting voluntary dismissal is reviewed

for an abuse of discretion. See American

Nat. Bank and Trust Co. v. Bic Corp., 931

F.2d 1411, 1412 (10th Cir. 1991). The

defendants have not demonstrated a clear

and indisputable right to the relief they

seek. The court, therefore, concludes that

mandamus relief is not warranted.

It is therefore ORDERED that the

defendants’ appeals in Cases Nos. 92-6266

and 92-6284 are dismissed for the reasons

set forth herein. To the extent that the

plaintiffs’ motions to dismiss advance

other grounds for dismissal, those motions

are rendered moot. The plaintiffs’ request

for sanctions is denied. It is further

ORDERED that the defendants’ petition for

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a writ of mandamus is denied. The defen-

dants’ motion for a stay is denied as moot.

ENTERED BY ORDER OF THE COURT

Leonard Green

Clerk

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