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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

CLEO NICHOL ROBINSON;

DALE C. FRITCHEN; and

PACIFIC BELL TELEPHONE

COMPANY, dba SBC CALIFORNIA,

NO. CIV. S-04-1878 LKK/GGH

Plaintiffs,

v. O R D E R

CITY OF STOCKTON,

Defendant.

 /

This matter comes before the court on plaintiffs’ motion to

amend or alter judgment or, in the alternative, to correct the

judgment and order issued on March 11, 2005. I decide the motion

based on the papers and pleadings filed herein and after oral

argument. 

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I.

BACKGROUND

Plaintiffs initially brought this suit in the Superior Court

of California, County of San Joaquin, against the City of Stockton

to challenge its “Emergency Communication System Access Fee

Ordinance” (“Ordinance”) pursuant to state law and the Takings

Clause of the Fifth Amendment. On September 9, 2004, defendant

successfully removed this case to federal court. 

On March 10, 2005, this court granted defendant’s motion to

dismiss on the grounds that the Takings Clause claim, the only

federal cause of action, was not ripe for review. Order at 7.

Because the court lacked jurisdiction over the state claims,

defendant’s motion was granted in its entirety. Id. at 7-8. 

Plaintiffs now argue that the court should not have dismissed

the case, but rather should have remanded to the state court as

required by 28 U.S.C. § 1447(c). Pls’ Mot. To Am. or Alter J.

(“Pls’ Mot.”) at 2. 

II.

STANDARDS

A district court may reconsider its final judgment or order

either through Rule 59(e)(motion to alter or amend judgment) or

Rule 60(b) (motion for relief from judgment) of the Federal Rules

of Civil Procedure. School Dist. No. 1J, Multnomah County, Or. v.

Acands, Inc., 5 F.3d 1255, 1262 (9th Cir. 1993). A Rule 59 motion

must be filed within ten days after entry of the judgment. Fed. R.

Civ. P. 59(e). A motion to alter or amend judgment that is not

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timely under Rule 59(e) may be treated as a motion for relief from

judgment under Rule 60(b). Gould v. Mutual Life Ins. Co., 790 F.2d

769, 772 (9th Cir. 1986). Because plaintiffs timely file their

motion, the court will consider it under Rule 59(e). 

“Amendment or alteration is appropriate under Fed. R. Civ. P.

59(e) if (1) the district court is presented with newly discovered

evidence, (2) the district court committed clear error or made an

initial decision that was manifestly unjust, or (3) there is an

intervening change in controlling law.” Zimmerman v. City of

Oakland, 255 F.3d 734, 740 (9th Cir. 2001). 

III.

ANALYSIS

Plaintiffs contend that dismissal was improper because 28

U.S.C. § 1447(c) requires remand when it appears, before final

judgment, that the district court does not have subject matter

jurisdiction. Specifically, they assert that when the court

concluded that the federal takings claim was unripe, it was clear

that it lacked subject matter jurisdiction to hear the case. Id.

According to them, at that point, the court should have ordered the

case remanded, rather than dismissed. For the reasons explained

below, I agree with the plaintiffs’ contention. 

Section 1447(c) provides, in relevant part, that, “[i]f at

any time before final judgment it appears that the district court

lacks subject matter jurisdiction, the case shall be remanded.” 28

U.S.C. § 1447(c). The Ninth Circuit has explained that section

1447(c) means that “if there is no jurisdiction – federal question,

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supplemental, diversity, or otherwise – the district court must

remand the removed case rather than dismissing it.” Albingia

Versicherungs A.G. v. Schenker Int’l, 344 F.3d 931, 938 (9th Cir.

2003). 

As plaintiffs contend, in ruling on defendants’ motion to

dismiss, the court determined that it could not hear the federal

takings claim because it was not ripe for adjudication. Order at

7. In such situations, where the “case is not ripe for review,

then there is no case or controversy,. . [and] the court lacks

subject-matter jurisdiction.” Principal Life Ins. v. Robinson, 394

F.3d 665, 669 (9th Cir. 2005). Finding that there was no subject

matter jurisdiction, remand of the removed case should have

necessarily followed. See Albania, 344 F.3d at 938. 

Defendant contends in its opposition that the court has

discretion to either remand or dismiss the state law claims. 

Def.’s Opp. at 1. Contrary to defendant’s view, section 1447(c)

does apply and effectively forecloses any discretion by the court

to dismiss. Defendant states in its brief that the Ninth Circuit

explained in Albania that “Section 1447(c) does not mean that if

the federal claim drops out [because of lack of subject-matter

jurisdiction] the district court must remand.” Def.’s Opp. at 5.

Defendant misstates the Ninth Circuit’s analysis in Albania. 

The Ninth Circuit has explained that where a case involves

both federal and state claims, but the district court does not have

jurisdiction over the federal claim, then the court cannot have

supplemental jurisdiction over the state claims through section

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1367; and, “if there is no jurisdiction – federal question,

supplemental, diversity, or otherwise – the district court must

remand the removed case rather than dismissing it.” Albania, 344

F.3d at 938. Here, this court concluded there is no federal

jurisdiction because the case is not ripe for review. Upon that

determination, section 1447(c) applies and requires remand. 

Defendant also avers that section 1447(c) is inapplicable

because section 1447(c) is triggered only where there is no basis

for federal jurisdiction at the time of removal. Id. Defendant’s

contention has no merit. The language of section 1447(c)

unequivocally states that remand is proper at any time before the

final judgment. 28 U.S.C. 1447(c).

IV.

CONCLUSION

For the foregoing reasons, the court GRANTS plaintiffs’ motion

to amend. The court’s order dated March 11, 2005 is hereby AMENDED

as follows: 

1. The language at 7:14-8:2 is stricken and replaced with:

“Because the court lacks jurisdiction over the federal

claim, it may not exercise jurisdiction over the

remaining state claims. Rather, this action must be

remanded to the state court where it was originally

filed pursuant to 28 U.S.C. 1447.” 

2. The language at 8:5-6 is stricken and replaced with:

“For all of the above reasons, defendant’s motion is

GRANTED and the case is remanded to the Superior Court

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of California, County of San Joaquin. 

IT IS SO ORDERED.

DATED: May 12, 2005.

/s/Lawrence K. Karlton 

LAWRENCE K. KARLTON

SENIOR JUDGE

UNITED STATES DISTRICT COURT

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