United States Court of Appeals,

Eleventh Circuit.

No. 95-6878.

In re CITY OF MOBILE, Petitioner.

Jan. 31, 1996.

On Petition for Writ of Mandamus to the United States District

Court for the Southern District of Alabama. (No. CV 95-0509-CB-C),

Charles R. Butler, Jr., Chief Judge.

Before HATCHETT, COX and BIRCH, Circuit Judges.

HATCHETT, Circuit Judge:

This case is before the panel on a petition for writ of

mandamus. We direct the district court to reconsider its decision.

BACKGROUND

On June 29, 1993, Melvin Thornton, Sr. sustained serious

injuries when a vehicle driven by Michael Kahalley struck his car.

At the time of the collision, officers of the Mobile, Alabama

Police Department were engaged in a high-speed chase of Kahalley.

On September 20, 1993, Thornton and family members (respondents)

filed suit in Alabama state court against Kahalley, the City of

Mobile, Police Officer David Preston and various fictitious

parties. The suit alleged negligence, wantonness, and dram shop

liability causes of actions under Alabama state law. On June 14,

1995, respondents filed a fourth amended complaint adding a cause

of action under 42 U.S.C. § 1983 for violation of rights under the

Fourth, Eighth, and Fourteenth Amendments to the United States

Constitution. Originally, the case was set for trial in state

court on June 26, 1995; it was continued, however, until November

5, 1995. On June 27, 1995, petitioners, with the exception of
Kahalley, removed the case to federal court pursuant to 28 U.S.C.

§ 1441(b) and (c).

Respondents moved to remand the entire case to state court.

The district court in the Southern District of Alabama granted the

motion remanding the entire case, including the section 1983 claim,

to state court. In support of its order, the district court relied

on 28 U.S.C. § 1367(c)(2) and (c)(4). Petitioners request that

this court issue a writ of mandamus ordering the district court to

retain and hear the entire case.

CONTENTIONS

Petitioners contend that the district court erred in remanding

the entire case to state court and assert that the district court

should have retained all of the claims. Petitioners contend that

the language of 28 U.S.C. § 1367(c) is clear and unequivocal and

only empowers a district court to decline supplemental

jurisdiction. Petitioners argue that this court should adopt the

reasoning of Borough of West Mifflin v. Lancaster, 45 F.3d 780 (3d

Cir.1995), which prohibited a district court from remanding a

properly removed federal claim to state court.

Respondents contend that remanding an entire case, including

a properly removed federal claim, is appropriate under section

1367(c)(2) where the state claims substantially predominate over

federal claims. Respondents argue that the district court

correctly found that the state law issues substantially

predominated over the federal issues. Respondents also contend

that under section 1367(c)(4), the district court properly remanded

the entire case to state court because other compelling reasons
exist to remand. Alternatively, respondents contend that the

district court could have remanded the entire case under section

1441(c).

ISSUE

The sole issue we address is whether, under 28 U.S.C. §

1367(c), a district court has discretion to remand to state court

a case that includes a properly removed federal claim.

DISCUSSION

 Initially we note that when a district court remands a case

based on reasons not authorized in 28 U.S.C. § 1447(c), we have

jurisdiction to review such an order on a petition for writ of

mandamus. In re Surinam Airways Holding Co., 974 F.2d 1255, 1257

(11th Cir.1992).

 Section 1367(c) cannot be fairly read as bestowing on

district courts the discretion to remand to a state court a case

that includes a properly removed federal claim. Borough of West

Mifflin v. Lancaster, 45 F.3d 780, 787 (3d Cir.1995). According to

section 1367(a), "in any civil action of which the district courts

have original jurisdiction, the district courts shall have

supplemental jurisdiction over all other claims that are so related

to the claims in the action within such original jurisdiction that

they form part of the same case or controversy." 28 U.S.C.A. §

1367(a) (West 1993). Under section 1367(c), district courts have

the discretion to refuse to exercise supplemental jurisdiction.

The section provides that

district courts may decline to exercise supplemental

jurisdiction over a claim under subsection (a) if—

(1) the claim raises a novel or complex issue of state law;
(2) the claim substantially predominates over the claim or

claims over which the district court has original

jurisdiction;

(3) the district court has dismissed all claims over which it

has original jurisdiction; or

(4) in exceptional circumstances, there are other compelling

reasons for declining jurisdiction.

28 U.S.C.A. § 1367(c) (West 1993) (emphasis added).

 In this case, the district court acknowledged that the terms

of section 1367(c) do not expressly authorize it to remand a

federal claim to state court, but the court found support for doing

so in the doctrine of pendent jurisdiction as construed in Carnegie

Melon Univ. v. Cohill, 484 U.S. 343, 108 S.Ct. 614, 98 L.Ed.2d 720

(1988). While we accept the district court's conclusion that

section 1367 is rooted in the doctrine of pendent jurisdiction, we

reject its interpretation of Carnegie Melon as allowing federal

courts to remand properly removed federal claims to state courts.

In Carnegie Melon, the Court addressed the issue of "whether a

federal district court has discretion under the doctrine of pendent

jurisdiction to remand a properly removed case to state court when

all federal-law claims in the action have been eliminated and only

pendent state-law claims remain." Carnegie Mellon, 484 U.S. at

345, 108 S.Ct. at 616. The Court concluded that a district court

has discretion to remand pendent claims to state court when doing

so furthers the principles of judicial economy, convenience,

fairness, and comity. Carnegie Mellon, 484 U.S. at 357, 108 S.Ct.

at 622-23. The district court in this case relied upon sections

1367(c)(2) and (c)(4) in concluding that it could remand the entire

case including the federal claim to state court.
 1

For example, in deciding to remand the entire case, the

district court placed great emphasis on the state court's

expenditure of its judicial resources during a two-year period in

pre-trial matters in preparation for the case. 

The district court exceeded its discretionary authority in

remanding the entire case pursuant to section 1367(c)(2) and (c)(4)

because it remanded the case on grounds not provided for in the

controlling statute. See Thermtron Products v. Hermansdorfer, 423

U.S. 336, 351, 96 S.Ct. 584, 593, 46 L.Ed.2d 542 (1976) (finding

that a district court exceeded its authority in remanding a case

for reasons not provided for in 28 U.S.C. § 1447(c)). While the

district court in this case outlined ostensibly compelling reasons

for remanding the entire case, we find no support for the district

court's decision in section 1367(c), its legislative history, or

relevant case law.1

 As the Supreme Court stated in Thermtron

Products, "we are not convinced that Congress ever intended to

extend carte blanche authority to 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." Thermtron Products, 423 U.S. at 351, 96

S.Ct. at 593. Accordingly, we hold that the district court must

retain jurisdiction over the properly removed federal claim.

 Respondents urge this court to find, as an alternative to

section 1367(c), that the district court had authority under 28

U.S.C.A. § 1441(c) to remand the entire action. We need not

consider this suggestion because we agree with the district court's

conclusion that no separate and independent cause of action exists

under these facts. Under section 1441(c),
[w]henever a separate and independent claim or cause of action

within the jurisdiction conferred by section 1331 of this

title 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 in which State law

predominates.

28 U.S.C.A. § 1441(c) (West 1994). The district court correctly

found that the claims here were not separate and independent.

Where both federal and state causes of actions are asserted as a

result of a single wrong based on a common event or transaction, no

separate and independent federal claim exists under section

1441(c). American Fire & Casualty Co. v. Finn, 341 U.S. 6, 14, 71

S.Ct. 534, 540, 95 L.Ed. 102 (1951). In this case, a single

accident occurred, and state and federal claims were filed based on

that accident. Therefore, section 1441(c) is not applicable

because no separate and independent claim exists.

CONCLUSION

Because the district court exceeded its authority in remanding

the properly removed federal claim, we direct the district court to

reconsider its decision to remand the entire case to the state

court.

REMANDED.

BIRCH, Circuit Judge, dissenting:

Because I believe that the district court correctly remanded

the entire underlying case to state court, albeit under the wrong

reasoning and statutory authority, I dissent. I agree with the

majority that 28 U.S.C. § 1367(c) was the improper basis to support

remand of the entire underlying case, which includes a 42 U.S.C. §

1983 claim, because section 1367(c) accords a district court
 1

28 U.S.C. § 1367(c); see Palmer v. Hospital Auth., 22 F.3d

1559, 1563 (11th Cir.1994) ("Section 1367 codifies the concepts

previously known as pendent and ancillary jurisdiction," and it

retains the dichotomy formerly derived from United Mine Workers

of America v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218

(1966), for accepting or declining supplemental jurisdiction). 

discretion to decline supplemental jurisdiction over state law

claims in definitive situations.1 I disagree, however, with the

majority and the district court's dismissal of 28 U.S.C. § 1441(c)

as the basis for remanding the entire underlying case because the

federal claim was not separate and independent from the state law

claims. My review of the legislative history for the applicable

1990 amendment to section 1441(c) convinces me that the district

court was authorized under this statute to remand the entire

underlying case to state court.

I. THE "SEPARATE AND INDEPENDENT CLAIM" LANGUAGE OF SECTION

1441(c)

The amendment of 28 U.S.C. § 1441(c) in 1990 resulted from the

recommendation of the Federal Courts Study Committee ("Committee"),

which was created by the Judicial Improvements and Access to

Justice Act of 1988 to study and report to Congress on certain

issues relating to the federal courts. The Committee's

recommendations are contained in the Report of the Federal Courts

Study Committee ("Report"), dated April 2, 1990. The Committee

recommended repeal of section 1441(c), "concerning removal of

separate and independent claims," because of the problems

encountered in the interpretation of "separate and independent"

claims in administering this statute by the federal courts. Report

at 94, 95.
The Committee recognized that the "separate and independent

claim or cause of action" language of former section 1441(c)

related to diversity cases "when the separate claim is against

another, non-diverse party." Id. The former doctrine of ancillary

jurisdiction, now subsumed by supplemental jurisdiction, codified

in 28 U.S.C. § 1367, allowed unrelated claims to be joined in a

single lawsuit and occurred in diversity, not federal question,

cases. Clearly, diversity jurisdiction was where "most of the

difficulties with § 1441(c)" arose as courts and parties attempted

to decipher the separateness or relatedness of claims. Id. at 95.

Congress, however, did not repeal section 1441(c), but

"modified" the statute "so as to eliminate most of the problems

that have been encountered in attempting to administer the

"separate and independent claim or cause of action' test" as

described by the Report. H.R.Rep. No. 101-734, 101st Cong., 2d

Sess., at 22-23 (1990) (Federal Courts Study Committee

Implementation Act of 1990). In a manifest attempt to restrict the

application of section 1441(c) to federal question jurisdiction, as

opposed to diversity jurisdiction, and to clarify the remand

discretion given to district courts, Congress amended the statute

in 1990 to provide:

Whenever a separate and independent claim or cause of action

within the jurisdiction conferred by section 1331 of this

title 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 in which State law

predominates.

28 U.S.C. § 1441(c) (emphasis added). Thus, Congress recognized

that the "separate and independent claim" problem arose in
diversity cases, where the "plaintiff could easily bring a single

action on a federal claim and a completely unrelated state claim."

H.R.Rep. No. 101-734, at 23 (emphasis added). In contrast,

Congress acknowledged that federal question jurisdiction,

associated with the former doctrine of pendent jurisdiction,

involves related claims. This relatedness of state and federal

causes of action is so implicit that Congress determined that the

amendment of section 1441(c) "would avoid the need to decide

whether there is pend[e]nt jurisdiction" in removal and remand.

Id.

Since amended section 1441(c) concerns only federal question

jurisdiction and deletes diversity jurisdiction, now covered by

section 1441(b), Congress undertook to relieve federal judges from

determining whether the state and federal causes of action are

related or unrelated. In federal question cases, these causes of

action are related. "The further amendment to Sec. 1441(c) that

would permit remand of all matters in which state law predominates

also should simplify administration of the separate and independent

claim removal." Id. (emphasis added). Indeed, the congressionally

edited version of section 1441(c), showing the deleted and added

wording makes plain that a deliberate choice has been made from

allowing a district court to remand "all matters not otherwise

within its original jurisdiction" to " may remand all matters in

which State law predominates." Id. at 50. Whereas the district

court formerly had no choice in retaining a federal claim, it now

may remand an entire case, including the federal question claim, if

state law predominates. See Maine v. Thiboutot, 448 U.S. 1, 3 n.
 2

In reversing the Fifth Circuit and remanding the case with

instructions that it be remanded to state court, the Supreme

Court concluded: "In this case, however, the District Court

would not have had original jurisdiction of the suit, as first

stated in the complaint, because of the presence on each side of

a citizen of Texas." Finn, 341 U.S. at 17, 71 S.Ct. at 541-42

(citing 28 U.S.C. § 1332). 

1, 100 S.Ct. 2502, 2503 n. 1, 65 L.Ed.2d 555 (1980) (recognizing

that federal courts do not have exclusive jurisdiction to

adjudicate section 1983 claims, since state courts have concurrent

jurisdiction (citing Martinez v. California, 444 U.S. 277, 283-84

n. 7, 100 S.Ct. 558, 558 n. 7, 62 L.Ed.2d 481 (1980))); see also

13B Charles A. Wright, Arthur R. Miller & Edward H. Cooper, Federal

Practice and Procedure § 3573, at p. 196 (1984) (acknowledging that

"it is now settled" that federal and state courts have concurrent

jurisdiction in section 1983 cases). Accordingly, "separate and

independent claim or cause of action" in section 1441(c) means a

legitimate basis of federal jurisdiction apart from jurisdiction

under state law claims.

In view of this legislative history, the majority's use of

American Fire & Casualty Co. v. Finn, 341 U.S. 6, 71 S.Ct. 534, 95

L.Ed. 702 (1951), for the proposition that no separate and

independent cause of action can exist under section 1441(c) where

federal and state causes arise from a common event is unpersuasive

in the context of a federal question case. Finn is a diversity

case, and it was remanded to state court because of the lack of

complete diversity, the basis of federal jurisdiction.2

 Indeed,

the Court defined a controversy between citizens of different

states as " "separable.' " Id. at 10, 71 S.Ct. at 538. That is,
 3

In Carnegie-Mellon, the "single federal-law claim in the

action was eliminated at an early stage of the litigation" giving

the district court "a powerful reason to choose not to continue

to exercise jurisdiction." 484 U.S. at 351, 108 S.Ct. at 619. 

In contrast, the underlying case in this petition had been

pending for two years in state court, discovery was completed,

and the case was set for trial before removal to federal court. 

The pivotal issue in Carnegie-Mellon was whether the district

court should relinquish jurisdiction by dismissing the case,

consisting of the pendent state law claims, without prejudice or

by remanding it to the state court. Id. In confirming the

judicial economy and comity principles of Gibbs, the Court

concluded that remand was preferable to dismissal, which might

preclude a plaintiff from litigating claims because of the

expiration of a state statute of limitations. Id. at 351-53, 108

S.Ct. at 619-20. 

the "single wrong" that is the basis of the diversity case is

separate and independent from an unrelated or ancillary claim that

destroys complete diversity. Id. at 14, 71 S.Ct. at 540. Noting

the difficulty in interpreting the meaning of " "separate and

independent claim or cause of action,' " the Court found that an

"important purpose" in the then-operative revision of § 1441(c) was

"to limit removal from state courts." Id. at 9-10, 71 S.Ct. at

538. Thus, Finn addresses diversity jurisdiction and not federal

question jurisdiction, where the claims are intertwined.

In Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 108 S.Ct.

614, 98 L.Ed.2d 720 (1988), decided on principles of pendent

jurisdiction because the federal claims had been eliminated and

only state law claims remained,3

 the Court explained that

"[s]ections 1441(c) and 1447(c) ... do not apply to cases over

which a federal court has pendent jurisdiction. Thus, the remand

authority conferred by the removal statute and the remand authority

conferred by the doctrine of pendent jurisdiction overlap not at

all." Id. at 355 n. 11, 108 S.Ct. at 621 n. 11. The presently
applicable 1990 amendment to section 1441(c), which followed the

Carnegie-Mellon decision, gives district courts the ability to

remand "all matters," or the entire case, to state court if state

law predominates.

II. STATUTORY INTERPRETATION AND APPLICATION

A. Principles of Statutory Construction

We review a district court's interpretation and application of

a statute de novo. International Union v. Jim Walter Resources,

Inc., 6 F.3d 722, 724 (11th Cir.1993). When statutory language is

clear and unambiguous, the language controls "absent a legislative

intent to the contrary." United States v. Chandler, 996 F.2d 1073,

1084 (11th Cir.1993) (citing United States v. Turkette, 452 U.S.

576, 580, 101 S.Ct. 2524, 2527, 69 L.Ed.2d 246 (1981)) (emphasis

added), cert. denied, --- U.S. ----, 114 S.Ct. 2724, 129 L.Ed.2d

848 (1994). Only when the statutory language is unclear do we

resort to legislative history. United States v. Rojas-Contreras,

474 U.S. 231, 235, 106 S.Ct. 555, 557, 88 L.Ed.2d 537 (1985); see

United States v. Castro, 829 F.2d 1038, 1049 (11th Cir.1987) ("Our

objective when interpreting a statute is to determine the drafters'

intent."), modified on other grounds, 837 F.2d 441 (11th Cir.1988).

"In determining the meaning of the statute we look not only to the

particular statutory language, but to the design of the statute as

a whole and to its object and policy." Crandon v. United States,

494 U.S. 152, 153, 110 S.Ct. 997, 1001, 108 L.Ed.2d 132 (1990)

(emphasis added); accord McCarthy v. Bronson, 500 U.S. 136, 139,

111 S.Ct. 1737, 1740, 114 L.Ed.2d 194 (1991); Chandler, 996 F.2d

at 1084. Thus, statutory language must be interpreted in context,
and not in isolation, to effectuate the statutory purpose.

Department of Revenue v. ACF Indus., Inc., --- U.S. ----, ----, 114

S.Ct. 843, 848, 127 L.Ed.2d 165 (1994); see City of Jamestown v.

James Cable Partners, L.P. (In re James Cable Partners, L.P.), 27

F.3d 534, 537 (11th Cir.1994) (per curiam) (holding that statutory

language should not be construed separately or in a vacuum, but

within the meaning of the whole statute).

Accordingly, courts cannot pronounce a statutory

interpretation that would thwart the legislative purpose of a

particular statute. In re Trans Alaska Pipeline Rate Cases, 436

U.S. 631, 643, 98 S.Ct. 2053, 2061, 56 L.Ed.2d 591 (1978). "A

change of [statutory] language is some evidence of a change of

purpose...." Johnson v. United States, 225 U.S. 405, 415, 32 S.Ct.

748, 751, 56 L.Ed. 1142 (1912); accord McElroy v. United States,

455 U.S. 642, 650-52 n. 14, 102 S.Ct. 1332, 1337 n. 14, 71 L.Ed.2d

522 (1982). An interpretation of statutory language that causes

other language within the statute to be meaningless contravenes the

" "elementary canon of construction that a statute should be

interpreted so as not to render one part inoperative.' " Mountain

States Tel. & Tel. Co. v. Pueblo of Santa Ana, 472 U.S. 237, 249,

105 S.Ct. 2587, 2594, 86 L.Ed.2d 168 (1985) (quoting Colautti v.

Franklin, 439 U.S. 379, 392, 99 S.Ct. 675, 684, 58 L.Ed.2d 596

(1979)).

B. Judicial Interpretation

The congressional amendment of section 1441(c) in 1990

resulted from problematic judicial interpretations of "separate and
 4

Despite congressional efforts at clarifying § 1441(c), it

is manifest that reasonable jurists continue to differ concerning

the interpretation of this statute evidenced by the district

court in the underlying case and the majority's view versus mine. 

See Burnett v. Birmingham Bd. of Educ., 861 F.Supp. 1036, 1038-39

(N.D.Ala.1994) (listing district courts that have followed the

interpretation of § 1441(c) by the district courts in our circuit

permitting remand of a case containing a federal cause of action

where state law claims predominate, which is my interpretation,

and district courts that would agree with the district court in

the underlying case and the majority's interpretation). 

 5

"Prior to its amendment, section 1441(c) permitted a

district court to remand any separate and independent matter "not

otherwise within its original jurisdiction.' In other words, a

district court could remand the state law claims not within its

original jurisdiction but was required to retain the federal law

claims." Moore v. DeBiase, 766 F.Supp. 1311, 1320 (D.N.J.1991)

(citations omitted) (emphasis added). 

independent claim" in the former version of the statute.4

Therefore, the legislative history addressed in the previous

section is crucial to our understanding of the meaning of "separate

and independent claim" within the context of section 1441(c) as

amended. Because present section 1441(c) is limited to federal

question jurisdiction, state law claims will be related to the

federal claim(s). Thus, "separate and independent claim" cannot

mean that the federal claim is unrelated to the state claims.

Furthermore, amended section 1441(c) now authorizes the district

court to remand all matters in which state law predominates; it no

longer is required to retain the federal claim as it was in the

previous version of the statute.5

 See Johnson, 225 U.S. at 415, 32

S.Ct. at 751 (determining that a legislative change in statutory

language constitutes evidence of a change in the statutory

purpose).

To focus on the "separate and independent claim" language of
 6

District courts have been the primary federal courts to

interpret and to apply § 1441(c) since its amendment in 1990. 

Even the Third Circuit, which addresses amended § 1441(c), adopts

the rationale of a Southern District of Ohio case, Kabealo v.

Davis, 829 F.Supp. 923 (S.D.Ohio 1993), aff'd mem., 72 F.3d 129

(6th Cir.1995); Borough of West Mifflin v. Lancaster, 45 F.3d

780, 786 (3d Cir.1995). Lancaster also cites Buchner v.

F.D.I.C., 981 F.2d 816 (5th Cir.1993), which presents the

opposite factual and legal scenario from the underlying case in

this petition. Under § 1441(c), the Fifth Circuit concluded that

federal, not state law claims, predominated because, "[a]s the

FDIC is a party to the present suit, all of the component claims

are conclusively deemed to have arisen under federal law." Id.

at 819. Accordingly, Buchner is not analogous to the underlying

case in this petition. Furthermore, the Fifth Circuit in Buchner

did not consider the legislative history behind the 1990

amendment of § 1441(c). 

section 1441(c), as the majority and the district court have done,

fails to view the statute in context or to give meaning to the

ability now accorded a district court to remand "all matters in

which State law predominates." 28 U.S.C. § 1441(c). Under the

majority and the district court's interpretation, which is the

former interpretation and application of section 1441(c), the

district court cannot remand the 42 U.S.C. § 1983 claim, but must

retain that claim in federal court because the federal claim is not

separate and independent from the state law claims. This former

interpretation, however, would subvert amended section 1441(c) of

its present meaning by precluding the remand of all matters in

which state law predominates. See Mountain States Tel. & Tel. Co.,

472 U.S. at 249, 105 S.Ct. at 2594 (holding that specific statutory

language cannot be interpreted so as to render other language

within the same statute inoperative or meaningless).

Since the 1990 amendment of section 1441(c), district courts6

in our circuit uniformly have interpreted the revised statute to
 7

Martin was the first federal court to interpret § 1441(c)

following its amendment in 1990. District courts nationwide have

relied on Martin and its progeny in our circuit and followed its

reasoning. See, e.g., Bodenner v. Graves, 828 F.Supp. 516, 519

(W.D.Mich.1993); Lang v. American Elec. Power Co., 785 F.Supp.

1331, 1334-35 (N.D.Ind.1992); Moralez v. Meat Cutters Local 539,

778 F.Supp. 368, 370-71 (E.D.Mich.1991); Moore v. DeBiase, 766

F.Supp. 1311, 1316 n. 9, 1319 (D.N.J.1991). Lancaster, however,

specifically rejects Martin and Holland from our circuit as the

proper analysis. Lancaster, 45 F.3d at 787. 

 8

See Moore, 766 F.Supp. at 1320 (" "Matters,' in the context

of the prior version of section 1441(c), could only be

interpreted to mean a discrete claim or cause of action and not

the entire case.... Although Congress retained the term

"matters,' it eliminated the limitation to only claims or causes

of action not within the district court's original

jurisdiction."); see also Alexander, 772 F.Supp. at 1224-25

("Note that the word used by the statute is still "matters.' The

federal court can remand all "matters' in which state law

predominates. If "matters' is construed to include all "claims,'

then a combination of claims in which a federal claim is one but

in which state law is found to "predominate' may justify a remand

of the whole case, with the federal claim included." (quoting

David D. Siegel, Changes in Federal Jurisdiction and Practice

Under the New (Dec. 1, 1990) Judicial Improvements Act, 133

F.R.D. 61, 78 (1991) (emphasis added)). 

accord discretion to district courts to remand an entire case,

including a federal claim, to state court if state law

predominates. Alexander ex rel. Alexander v. Goldome Credit Corp.,

772 F.Supp. 1217, 1222-25 (M.D.Ala.1991); Holland v. World Omni

Leasing, Inc., 764 F.Supp. 1442, 1443-44 (N.D.Ala.1991); Martin v.

Drummond Coal Co., 756 F.Supp. 524, 525-27 (N.D.Ala.1991)7; accord

Burnett v. Birmingham Bd. of Educ., 861 F.Supp. 1036, 1037-39

(N.D.Ala.1994). "The [present] words "may remand all matters in

which State law predominates' were substituted for the former words

"may remand all matters not otherwise within its original

jurisdiction.' This is a dramatic change."8

 Martin, 756 F.Supp.

at 525. " [E]ven if there is a federal question identified in
plaintiff's well-pleaded complaint, as is true in the instant case,

§ 1441(c) can still justify remanding the entire case "if state law

predominates.' " Holland, 764 F.Supp. at 1444 (quoting 28 U.S.C.

§ 1441(c)) (emphasis added); see Moore, 766 F.Supp. at 1321

("Congress, by granting the discretion to remand all matters in

which state law predominates, intended to permit a district court

to remand the entire case and not just the state law claims. "

(emphasis added)).

Significantly, in cases where the federal claim is "so

intertwined with" as to be "indistinguishable from" the state law

claims, making it "very difficult, i[f] not impossible, to treat

separately," the federal court's retaining the case only because of

the federal claim "invariably" would result in a "race-to-judgment

between the federal court and the state court, and the first court

to decide its case might create a serious res judicata problem for

the other court." Holland, 764 F.Supp. at 1444; see Moore, 766

F.Supp. at 1321 ("Remand of the entire matter, including the

section 1983 claims, is even more compelling in this case because

the federal law claims are factually tied to all of the state law

claims." (citing Martin, 756 F.Supp. at 527) (emphasis added)). In

remanding the entire case, including the federal Truth in Lending

Act claim, to state court because state law predominated, the

district court determined that "[a]llowing for a remand of the

entire case allows a court to avoid piecemeal litigation and to

properly limit those cases removed to federal court to those that

truly present federal issues." Alexander, 772 F.Supp. at 1225

(emphasis added).
C. Determination of State Law Predomination

Because Congress did not explain explicitly how to determine

when state law predominates over federal question jurisdiction

where pleadings invoke both state and federal law, "a value

judgment by the federal court" is required. Martin, 756 F.Supp. at

527; accord Moore, 766 F.Supp. at 1319. State law predominates "

"[i]f the federal court finds that the federal claim, while

plausible, is not really the plaintiff's main mission; that it is

only an incident or adjunct of the state claim and that the state

claim is the crux of the action....' " Moore, 766 F.Supp. at 1319

(quoting 28 U.S.C.A. § 1441 Commentary (West Supp.1991)); see

Burnett, 861 F.Supp. at 1038 ("Employing the routinely accepted

proposition that removal statutes are always to be construed

against removal, the language of § 1441(c) cannot be interpreted to

recognize an exception for all state cases which simply contain a

claim invoking 42 U.S.C. § 1983 as to which state courts have

concurrent jurisdiction."). A district court decides whether state

law predominates by examining the "nature of the claims as set

forth in the pleading and by determining whether the state law

claims are more complex or require more judicial resources to

adjudicate or are more salient in the case as a whole than the

federal law claims." Moore, 766 F.Supp. at 1319 (footnote

omitted). Thus, Congress accorded district courts " broad

discretion " in determining whether to retain a removed case or to

remand it entirely to state court. Id. (emphasis added).

The district court analyzed its reasons for concluding that

state law predominates in the underlying case, although in the
 9

Recognizing that determining that state law predominates is

not merely a numerical count of the respective claims, the

district court in the underlying case used the Gibbs standard for

comparing the state and federal claims "in terms of proof, of the

scope of the issues raised, or of the comprehensiveness of the

remedy sought." Gibbs, 383 U.S. at 726, 86 S.Ct. at 1139. As to

type and amount of damages available under the federal and state

claims, the district judge determined that there is little

difference because there are no liability caps under either

federal or state claims as to the five named defendants other

than the City of Mobile. Thornton v. Kahalley, No. 95-0509-CB-C,

slip op. at 9-10 (S.D.Ala. Sept. 20, 1995) (order granting

plaintiffs' motion to remand the entire case to state court)

[hereinafter "Remand Order"]. In contrast, the district judge

found "pervasive differences in both the standards and elements

of proof" for the state versus the federal claims. Id. at 10. 

Under the Alabama Dram Shop Act, the district judge explained

that the relevant defendants could be strictly liable for their

actions, and that the remaining state common law claims permit

recovery on a showing of negligence or wantonness. Under section

1983, the district judge recognized that a plaintiff is required

to show gross negligence or deliberate indifference resulting

from an official policy or custom. Thus, the district judge

concluded that the standard of proof for the section 1983 claim

was "substantially higher" than that for the various state law

claims. Id. Additionally, the district judge found that "there

are marked differences in the means available to a plaintiff to

establish his case under § 1983 and the state law claims." Id.

While Alabama law allows a municipality to be liable for

negligence under respondeat superior, the district judge

contrasted section 1983, which prohibits liability under that

theory. Because the state causes of action require lower

standards and elements of proof than does the federal civil

rights claim, the district judge concluded, as a matter of law,

that the state law claims substantially predominated in the

underlying case. Id. at 11; see Gibbs, 383 U.S. at 726, 86

S.Ct. at 1139 ("Needless decisions of state law should be avoided

both as a matter of comity and to promote justice between the

parties, by procuring for them a surer-footed reading of

applicable law."). 

context of 28 U.S.C. § 1367(c)(2).9 See Bodenner v. Graves, 828

F.Supp. 516, 518 (W.D.Mich.1993) (noting that the language of

section 1441(c) relating to the discretion of the district court to

remand " "all matters in which State law predominates'.... closely

mirrors that of § 1367(c)(2))." (quoting 28 U.S.C. § 1441(c)).

Irrespective of whether section 1441(c) or section 1367(c)(2) is
 10In its remand order for the underlying case, the district

court explained:

The state judiciary has already invested substantial

resources in this case, has resolved numerous discovery

and other preliminary matters, and has developed

familiarity and expertise over the factual and legal

issues in this cause of action which this court

presently lacks. It would be neither an economical nor

a convenient allocation of judicial resources for this

court to seize jurisdiction over this entire action at

the eleventh hour of the state litigation.

Remand Order at 12. 

applied, the claims and facts are the same. Finally, the

underlying case has been proceeding in state court for two years

through discovery, and it was scheduled for trial before addition

of the section 1983 claim and its removal to federal court;

clearly, the state court is in a better position to adjudicate the

issues in the underlying case. 10 The district court acted within

its discretion accorded by section 1441(c), as amended in 1990, in

remanding the entire underlying case after determining that state

law predominated.

III. CONCLUSION

I conclude that the majority errs in limiting its discussion

to supplemental jurisdiction under 28 U.S.C. § 1367(c) and in

failing to analyze the district court's remand of the entire

underlying case under 28 U.S.C. § 1441(c), as amended. The

legislative history behind the 1990 amendment of section 1441(c)

reveals that "separate and independent claim" does not mean that

the federal claim is unrelated to the state law claims in a federal

question case. "Separate and independent claim" refers to a

legitimate federal jurisdictional basis. In a case involving both
valid federal and state law claims, the district court must

determine that state law claims predominate if it decides to remand

the entire case. I believe that the district court correctly

remanded the entire underlying case to state court based on the

predomination of state law claims, although I do not endorse its

statutory authority for the remand under section 1367(c),

concerning supplemental jurisdiction.

Apparently, the majority sees the dilemma of trial of federal

claims in federal court and trial of related state claims in state

court presenting the problems of conflicting federal and state

adjudications, race to judgment and res judicata; hence the

implicit suggestion to the district court that it adjudicate all

claims, state and federal. Because the majority's interpretation

of "separate and independent claim" in section 1441(c) as well as

its resolution makes the ability of district judges to remand all

matters to state court under the statute devoid of meaning, I

cannot accept it. The majority's interpretation and resolution is

particularly unsatisfactory in this underlying case where the

district judge, as factfinder, has determined that state claims

predominate, and that it is appropriate to adjudicate the single,

lately added federal claim in state court. Because I would have

dismissed the mandamus petition for the reasons explained herein

and upheld the district court's remand of the entire underlying

case to state court, I respectfully dissent.